[Federal Register Volume 85, Number 122 (Wednesday, June 24, 2020)]
[Notices]
[Pages 37834-37848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13652]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA233]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Alameda Marina Shoreline 
Improvement Project

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

ACTION: Notice; issuance of two incidental harassment authorizations.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued two incidental harassment authorizations (IHAs) to 
Pacific Shops, Inc. (Pacific Shops) to incidentally harass, by Level B 
harassment only, marine mammals during construction activities 
associated with the Alameda Marina Shoreline Improvement Project in 
Alameda, CA.

DATES: These authorizations are effective from August 1, 2020 to July 
31, 2021 for Year 1 activities, and August 1, 2021 to July 31, 2022 for 
Year 2 activities.

FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected 
Resources, NMFS, (301) 427-8401. 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: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

[[Page 37835]]

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 issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    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 the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
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.

Summary of Request

    On November 25, 2019, NMFS received a request from Pacific Shops, 
Inc. (Pacific Shops) for two IHAs to take marine mammals incidental to 
construction activities at the Alameda Marina in Alameda, CA over two 
years. The applicant expects to conduct vibratory pile removal and 
vibratory and impact installation during Year 1, and vibratory and 
impact pile installation during Year 2. The application was deemed 
adequate and complete on April 9, 2020. Pacific Shops' request is for 
take of a small number of six species of marine mammals, by Level B 
harassment. Neither Pacific Shops nor NMFS expects serious injury or 
mortality to result from this activity and, therefore, IHAs are 
appropriate.

Description of the Specified Activity

Overview

    Pacific Shops is planning to conduct improvements to the Alameda 
Marina and its shoreline in Alameda, CA over a two-year construction 
period. The project will address climate resiliency and rehabilitate 
existing shoreline and marina facilities so that the shoreline meets 
current seismic resistance criteria and addresses sea level rise risk. 
The project will update the existing marina facilities, reconfigure 
some of the existing marina piers, and provide the public with more 
aquatic recreational opportunities. The construction activities include 
vibratory and impact pile driving and removal which will ensonify the 
Oakland Estuary over approximately 68 days in Year 1, and 98 days in 
Year 2.
    A detailed description of the planned project is provided in the 
Federal Register notice for the proposed IHA (85 FR 23790; April 29, 
2020). Since that time, no changes have been made to the planned 
construction activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Pacific Shops was 
published in the Federal Register on April 29, 2020 (85 FR 23790). That 
notice described, in detail, Pacific Shops' activity, the marine mammal 
species that may be affected by the activity, and the anticipated 
effects on marine mammals, their habitat, planned amount and manner of 
take, and planned mitigation, monitoring and reporting measures. During 
the 30-day public comment period, NMFS received a comment letter from 
the Marine Mammal Commission (Commission). NMFS also received a letter 
from the general public. All substantive recommendations are responded 
to here. Please see the Commission's letter for full detail regarding 
justification for their recommendations, available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.
    Comment 1: Regarding bubble curtains, the Commission recommends 
that NMFS (1) consult with acousticians, including those at UW-APL, 
regarding the appropriate source level reduction factor to use to 
minimize near-field (<100 meters (m)) and far-field (>100 m) effects on 
marine mammals or (2) use the data NMFS has compiled regarding source 
level reductions at 10 m for near-field effects and assume no source 
level reduction for far-field effects for all relevant incidental take 
authorizations. The Commission explicitly requests a detailed response 
to both parts of this recommendation if NMFS does not follow or adopt 
it, as required under section 202(d) of the MMPA.
    Response: NMFS has previously outlined our rationale for the bubble 
curtain source level reduction factor (84 FR 64833, November 25, 2019) 
in response to a similar comment from the Commission. NMFS disagrees 
with the Commission regarding this issue, and does not adopt the 
recommendation. NMFS will provide a detailed explanation of its 
decision within 120 days, as required by section 202(d) of the MMPA.
    Comment 2: The Commission recommends that NMFS increase the 
shutdown zone for high-frequency cetaceans during impact installation 
of 36-inch (in) steel piles from 400 m to 410 m to include the entire 
Level A harassment zone.
    Response: NMFS does not concur and does not accept the Commission's 
recommendation. Given the duration component associated with actual 
occurrence of Level A harassment take, a 400 m shutdown zone is 
sufficient to prevent any potential for permanent threshold shift 
(PTS), i.e., Level A harassment take, in an estimated 406m Level A 
harassment zone.
    Comment 3: The Commission recommends that NMFS authorize up to five 
Level A harassment takes of harbor seals during Year 2 to account for 
protected species observers' (PSO) inability to monitor where seals are 
located underwater and for how long, and for visual obstructions that 
limit PSO observations of the zones. The Commission states that any 
seal that surfaces in the Level A harassment zone would be enumerated 
as a Level A harassment take.
    Response: NMFS does not adopt the Commission's recommendation to 
authorize Level A harassment take of harbor seals. Given the duration 
component associated with potential occurrence of permanent threshold 
shift (PTS), NMFS disagrees with the assumption that a seal which 
appears in the Level A harassment zone has necessarily incurred PTS 
(Level A harassment). As stated in this Federal Register notice, the 
Federal Register notice for the proposed IHA, and proposed and final 
IHAs, monitoring reports must include the estimated time that an 
observed marine mammal spent within the Level A and Level B harassment 
zones while the source was active. However, simply because a PSO 
observes an animal within the Level A harassment zone does not mean 
that animal was taken by Level A harassment.

[[Page 37836]]

    Comment 4: The Commission suggested that NMFS underestimated 
California sea lion takes based on Pacific Shops' in-situ monitoring, 
and recommended that NMFS authorize at least 17, rather than 14, Level 
B harassment takes of California sea lions in Year 1 and 25, rather 
than 20, Level B harassment takes in Year 2.
    Response: NMFS agrees that we must authorize a sufficient number of 
Level B harassment takes. Pacific Shops monitored for marine mammals at 
the project site on four days in June 2019 and observed one sea lion 
during that period. NMFS considered that sighting in combination with 
sightings reported through other avenues (see Estimated Take section, 
below). NMFS concurred with Pacific Shops' estimate that one California 
sea lion may occur in the project area every five project days, 
resulting in an estimated 14 Level B harassment takes in Year 1, and 20 
Level B harassment takes in Year 2. NMFS disagrees with the 
Commission's recommended take estimate. It is not appropriate to apply 
Pacific Shops' sighting of one sea lion over four days of monitoring as 
a sighting rate, given the limited monitoring period and additional 
information available. The additional information suggests that the 
sighting rate is less than one sea lion per four days.
    Comment 5: The Commission provided several recommendations related 
to Pacific Shops' proposed hydroacoustic monitoring plan. It recommends 
that NMFS (1) ensure that its internal acoustics expert reviews (a) the 
hydroacoustic monitoring plan before Pacific Shops implements it and 
(b) the hydroacoustic monitoring data and resulting Level A and B 
harassment zones before NMFS revises them and (2) specify in section 
6(c) of the final authorizations a sufficient number of each type and 
size of pile and installation/removal method for which measurements 
would be obtained. The Commission also recommended that NMFS require 
all applicants proposing or required to conduct hydroacoustic 
monitoring to provide their proposed hydroacoustic monitoring plans 
prior to publication of the proposed authorization in the Federal 
Register.
    Response: NMFS agrees that it is important to ensure adequate 
review of hydroacoustic monitoring plans before they are implemented by 
applicants and monitoring data before Level A and Level B harassment 
zones are subsequently adjusted, if appropriate. Pacific Shops provided 
a copy of their proposed plan to NMFS prior to NMFS' publication of the 
proposed authorization in the Federal Register. NMFS reviewed Pacific 
Shops' proposed hydroacoustic monitoring plan, and NMFS advised Pacific 
Shops on required adjustments to support adequate data collection 
according to accepted methodological standards. NMFS will also review 
the resulting data prior to adjusting the Level A and Level B 
harassment zone sizes. The issued IHA notes that Pacific Shops must 
conduct acoustic monitoring for the number of each pile type and size 
indicated in the hydroacoustic monitoring plan. NMFS feels it is 
important to state the objectives of the proposed acoustic monitoring 
in the notice of the proposed IHA. However, the basic methodological 
details follow widely accepted practices and, therefore, it is 
unnecessary to provide these plans for public review.
    Comment 6: The Commission recommends that NMFS require Pacific 
Shops to position its far-field protected species observer (PSO) 
sufficiently in the far field and not within a few hundred meters of 
the pile-driving or--removal site, considering locations on the 
perimeter of Grand Harbor, Fortmann Marina, or Union Point Marina, 
along the Coast Guard (CG) Island, and at the farthest points of land 
surrounding Encinal Basin depending on the activity conducted. Location 
of the PSOs should be stipulated in the final authorizations.
    Response: Most of the suggested locations were included in the 
applicant's initial evaluation of potential monitoring locations. After 
re-evaluating the proposed locations, and all of the locations 
suggested by the Commission, NMFS and the applicant still find that the 
best location for the far field PSO is on top of the barge at the end 
of Pier 5 (12.6 ft. (3.8 m) high) within the Alameda Marina. This 
elevated location has an excellent view in all directions, is safe for 
the observer, and continued access for PSOs is not a concern.
    The applicant raised concerns regarding access, visibility, and 
safety at the other locations. The applicant did not expect that they 
would be granted long-term access to the neighboring marinas, as they 
are privately owned. CG Island is an active Coast Guard base, and 
access to this federal site is very limited and generally not 
accessible to non-military personnel. It is also unlikely that these 
sites would allow the applicant to build a tower structure for elevated 
viewing at these locations. Given the topography, elevated viewing 
significantly enhances visibility of the monitoring area.
    Additionally, except for CG Island, each of the locations is inset 
somewhat into the shoreline, thereby restricting visibility in one 
direction or another. The dock on the southwest side of CG Island could 
potentially provide good visibility except when ships are at the dock, 
when visibility would be almost completely blocked.
    The applicant previously considered a public park just north of 
Union Point Marina where access would be less of an issue, but it is 
not a safe location for observers.
    The near-field PSO's view will be limited to the marina. The far-
field PSO (on the barge) will be in an excellent position to alert the 
near-field PSO of approaching animals. Therefore, as noted above, NMFS 
requires Pacific Shops to station their far-field PSO on the barge at 
the end of Pier 5, and has included the final PSO locations in the 
authorizations.
    Comment 7: The Commission recommends that NMFS revise its standard 
condition for ceasing in-water heavy machinery activities to include, 
as examples, movement of the barge to the pile location, positioning of 
the pile on the substrate, use of barge-mounted excavators, and 
dredging in all draft and final incidental take authorizations 
involving pile driving and removal.
    Response: NMFS does not adopt this recommendation as stated. The 
examples are simply intended to serve as examples. We will consider 
revising these examples on a case-specific basis.
    Comment 8: The Commission recommends that NMFS ensure that Pacific 
Shops keeps a running tally of the total takes, based on observed and 
extrapolated takes, for Level B harassment consistent with condition 
4(i) of the final authorizations.
    Response: We agree that Pacific Shops must ensure they do not 
exceed authorized takes but do not concur with the recommendation. NMFS 
is not responsible for ensuring that Pacific Shops does not operate in 
violation of an issued IHA.
    Comment 9: The Commission recommends that NMFS refrain from issuing 
renewals for any authorization and instead use its abbreviated Federal 
Register notice process. If NMFS continues to propose to issue 
renewals, the Commission recommends that it (1) stipulate that a 
renewal is a one-time opportunity (a) in all Federal Register notices 
requesting comments on the possibility of a renewal, (b) on its web 
page detailing the renewal process, and (c) in all draft and final 
authorizations that include a term and condition for a renewal and, (2) 
if NMFS declines to adopt this recommendation, explain fully its 
rationale for not doing so.

[[Page 37837]]

    Response: NMFS has stated in the issued IHAs that a renewal is a 
one-time opportunity. NMFS will provide a further detailed explanation 
of its decision within 120 days, as required by section 202(d) of the 
MMPA.
    Comment 10: The Commission expressed concern that, if a renewal is 
issued for Year 1 construction activities, the timing of these 
activities could overlap with the scheduled Year 2 construction 
activities. The Commission recommends that NMFS either make its 
determinations regarding small numbers and negligible impact based on 
the total number and type of taking for each species or stock for both 
authorizations combined or delay the Year 2 activities until 2022 if a 
renewal authorization is issued for the Year 1 activities.
    Response: Pacific Shops' proposed construction activities would 
occur in linear fashion according to the schedule that informs their 
request for two consecutive IHAs, and which was described in detail in 
our notice of proposed IHAs. Therefore, activities described in 
association with the Year 1 IHA would not occur concurrently with 
activities described in association with the Year 2 IHA, whether 
occurring under the issued Year 1 IHA or under a renewal of the Year 1 
IHA, if necessary. Therefore, the Commission's recommendation is moot.

Changes From the Proposed IHA to Final IHA

    The applicant is now planning to begin construction in August 2020 
rather than June 2020, as included in the proposed authorization. As 
such, the effective dates of the IHAs are now August 1, 2020-July 31, 
2021 (Year 1) and August 1, 2021 to July 31, 2022 (Year 2). 
Additionally, NMFS modified the Level A and Level B harassment zones 
for impact and vibratory pile driving of 36-in piles to reflect that 
the applicant will drive a max of two piles per day in Year 1, and one 
pile per day in Year 2. We also made some small clarifications to the 
hydroacoustic monitoring reporting requirements, and corrected 
typographical errors in the Level A harassment isopleths.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence in 
Alameda, CA and summarizes information related to the population or 
stock, including regulatory status under the MMPA and Endangered 
Species Act (ESA) and potential biological removal (PBR), where known. 
For taxonomy, we follow Committee on Taxonomy (2019). PBR is defined by 
the MMPA as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population (as described in NMFS's SARs). While no mortality is 
anticipated or authorized here, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprise that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Pacific SARs (e.g., Carretta et al., 2019). All values 
presented in Table 1 are the most recent available at the time of 
publication and are available in the 2018 SARs (Carretta et al., 2019) 
and draft 2019 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                              Table 1--Species That Spatially Co-Occur With the Activity to the Degree That Take May Occur
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                                                                                      ESA/MMPA status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           strategic (Y/N)      Nmin, most recent        PBR      Annual M/SI
                                                                                            \1\          abundance survey) \2\                   \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Bottlenose Dolphin.............  Tursiops truncatus....  California Coastal....  -, -, N            453 (0.06, 346, 2011).          2.7         >2.0
Family Phocoenidae (porpoises):
    Harbor porpoise................  Phocoena phocoena.....  San Francisco/Russian   -, -, N            9,886 (0.51, 2019)....           66            0
                                                              River.
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California Sea Lion............  Zalophus californianus  United States.........  -, -, N            257,606 (N/A, 233,515,       14,011         >321
                                                                                                         2014).
    Northern fur seal..............  Callorhinus ursinus...  California............  -, D, N            14,050 (N/A, 7,524,             451          1.8
                                                                                                         2013).
                                                             Eastern North Pacific.  -, D, N            620,660 (0.2, 525,333,       11,295          399
                                                                                                         2016).
Family Phocidae (earless seals):
    Northern elephant seal.........  Mirounga                California Breeding...  -, -, N            179,000 (N/A, 81,368,         4,882          8.8
                                      angustirostris.                                                    2010).
    Harbor seal....................  Phoca vitulina........  California............  -, -, N            30,968 (N/A, 27,348,          1,641           43
                                                                                                         2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.

[[Page 37838]]

 
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury (M/SI) from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.

    Harbor seal and California sea lion spatially co-occur with the 
activity to the degree that take is reasonably likely to occur, and we 
have authorized take of these species. For bottlenose dolphin, harbor 
porpoise, northern fur seal, and northern elephant seal, occurrence is 
such that take is possible, and we have authorized take of these 
species also. All species that could potentially occur in the project 
area are included in Pacific Shops' IHA application (see application, 
Table 4). While gray whale and humpback whale could potentially occur 
in the area, the spatial occurrence of these species is such that take 
is not expected to occur, and they are not discussed further beyond the 
explanation provided here. In recent years there have been an increased 
number of gray whales in the San Francisco Bay, but they primarily 
occur in the western and central Bay (W. Keener, pers. comm. 2019), and 
none have been reported in the Estuary (NMFS 2019a, 2019b). Humpbacks 
have regularly been seen inside the Bay, primarily in the western Bay, 
from April through November since 2016 (W. Keener, pers. comm. 2019), 
and sometimes venture up the Delta waterway (e.g., Gulland et al. 
2008), but have not been recorded in the Estuary (NMFS 2019a, 2019b). 
Additionally, both gray whales and humpback whales are not expected to 
enter the project area due to the narrow channel width and shallow 
water depths.
    A detailed description of the species likely to be affected by the 
Alameda Marina Shoreline Improvement Project, including brief 
introductions to the species and relevant stocks as well as available 
information regarding population trends and threats, and information 
regarding local occurrence, were provided in the Federal Register 
notice for the proposed IHA (85 FR 23790; April 29, 2020); since that 
time, we are not aware of any changes in the status of these species 
and stocks; therefore, detailed descriptions are not provided here. 
Please refer to that Federal Register notice for these descriptions. 
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    Underwater noise from impact and vibratory pile driving activities 
associated with the Alameda Marina Shoreline Improvement Project have 
the potential to result in harassment of marine mammals in the vicinity 
of the action area. The Federal Register notice for the proposed IHA 
(85 FR 23790; April 29, 2020) included a discussion of the potential 
effects of such disturbances on marine mammals and their habitat, 
therefore that information is not repeated in detail here; please refer 
to that Federal Register notice (85 FR 23790; April 29, 2020) for that 
information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through these IHAs, which inform both NMFS' consideration of 
``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of 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).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns and/or temporary threshold shift 
(TTS) for individual marine mammals resulting from exposure to pile 
driving and removal noise. Based on the nature of the activity and the 
anticipated effectiveness of the mitigation measures (i.e., shutdown 
zones) discussed in detail below in the Mitigation Measures section, 
Level A harassment is neither anticipated nor authorized. As described 
previously, no mortality is anticipated or authorized for this 
activity.
    Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment for Non-Explosive Sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 [mu]Pa (rms) (microPascal, root mean 
square) for continuous (e.g., vibratory pile-driving, drilling) and 
above 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., 
seismic airguns) or intermittent (e.g., scientific sonar) sources.
    Pacific Shops' activity includes the use of continuous (vibratory 
pile driving) and impulsive (impact pile driving) sources, and 
therefore the 120 and 160 dB re 1 [mu]Pa (rms) are applicable.
    Level A Harassment for Non-Explosive Sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine

[[Page 37839]]

Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). Pacific Shops' activity includes the use 
of impulsive (impact pile driving) and non-impulsive (vibratory pile 
driving) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing Group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the project. Marine 
mammals are expected to be affected via sound generated by the primary 
components of the project (i.e., impact pile driving and vibratory pile 
driving and removal). The largest calculated Level B harassment zone is 
21.5 kilometers (km) (13.4 miles (mi)) from the source, however, the 
zone of influence (ZOI) is functionally only 1.43 km\2\ (0.6 mi\2\) due 
to the geography of the Estuary.
    The project includes vibratory and impact pile installation and 
vibratory pile removal. Source levels of pile installation and removal 
activities are based on reviews of measurements of the same or similar 
types and dimensions of piles available in the literature. Source 
levels for vibratory installation and removal of piles of the same 
diameter are assumed the same. Source levels for each pile size and 
activity are presented in Table 3.
    The source level for vibratory removal of timber piles is from in-
water measurements generated by the Greenbusch Group (2018) from the 
Seattle Pier 62 project (83 FR 39709; August 10, 2018). Hydroacoustic 
monitoring results from Pier 62 determined unweighted rms ranging from 
140 dB to 169 dB. NMFS analyzed source measurements at different 
distances for all 63 individual timber piles that were removed at Pier 
62 and normalized the values to 10 m. The results showed that the 
median is 152 dB SPLrms.
    Pacific Shops will implement bubble curtains (e.g. pneumatic 
barrier typically comprised of hosing or PVC piping that disrupts 
underwater noise propagation; see Mitigation Measures section below) 
during impact pile driving of the wide flange beams, 30-in steel pipe 
piles, and 36-in steel pipe piles. They have reduced the source level 
for these activities by 7dB (a conservative estimate based on several 
studies including Austin et al., 2016 and Caltrans, 2015).

                                      Table 3--Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
                                                      Source level @10 m
                 Pile type                 ---------------------------------------             Source
                                               dB RMS      dB peak       dB SEL
----------------------------------------------------------------------------------------------------------------
                                                    VIBRATORY
----------------------------------------------------------------------------------------------------------------
16-in Timber (removal)....................          152  ...........  ...........  The Greenbusch Group, Inc
                                                                                    2018.
12-in Square Concrete (removal)...........          155  ...........  ...........  CalTrans 2015 (Based on 12-in
                                                                                    steel pipe pile).
Steel sheet pile..........................          160  ...........  ...........  CalTrans 2015 (Based on 24-in
                                                                                    AZ steel sheet).
30-in Steel Pipe..........................          170  ...........  ...........  CalTrans 2015 (Based on 36-in
                                                                                    steel pipe pile).
36-in Steel Pipe..........................          170  ...........  ...........  CalTrans 2015.
Wide Flange Beam..........................          155  ...........  ...........  Based on 38-in x 18-in king
                                                                                    piles at the Naval Station
                                                                                    Mayport in Jacksonville,
                                                                                    Florida.
----------------------------------------------------------------------------------------------------------------

[[Page 37840]]

 
                                                     IMPACT
----------------------------------------------------------------------------------------------------------------
14-in Square Concrete.....................          166          185          155  CalTrans 2015 (Based on 18-
                                                                                    inch concrete piles).
16-in Square Concrete.....................          166          185          155  CalTrans 2015 (Based on 18-
                                                                                    inch concrete piles).
24-in Concrete piles......................          176          188          166  CalTrans 2015.
Wide Flange Beam (attenuated in               194 (187)    207 (200)    178 (171)  CalTrans 2015 (Source levels
 parentheses).                                                                      based on 24-in steel pipe
                                                                                    pile).
30-in Steel Pipe (attenuated in               190 (183)    210 (203)    177 (170)  CalTrans 2015.
 parentheses).
36-in Steel Pipe (attenuated in               193 (186)    210 (203)    183 (176)  CalTrans 2015.
 parentheses).
----------------------------------------------------------------------------------------------------------------

    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * Log10 (R1/R2),

where

TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement

    Absent site-specific acoustical monitoring with differing measured 
transmission loss, a practical spreading value of 15 is used as the 
transmission loss coefficient in the above formula. Site-specific 
transmission loss data for Alameda Marina are not available, therefore 
the default coefficient of 15 is used to determine the distances to the 
Level A and Level B harassment thresholds.

               Table 4--Pile Driving Source Levels and Distances to Level B Harassment Thresholds
----------------------------------------------------------------------------------------------------------------
                                                                   Level B harassment      Distance to Level B
                Source                   Source level at 10 m     threshold  (dB re 1      harassment threshold
                                         (dB re 1 [mu]Pa rms)         [mu]Pa rms)                  (m)
----------------------------------------------------------------------------------------------------------------
                                                    VIBRATORY
----------------------------------------------------------------------------------------------------------------
16-in Timber (removal)...............                      152                      120                    1,359
12-in Square Concrete (removal)......                      155  .......................                    2,154
Steel sheet pile.....................                      160  .......................                    4,642
30-in Steel Pipe.....................                      170  .......................                   21,544
36-in Steel Pipe.....................                      170  .......................                   21,544
Wide Flange Beam.....................                      155  .......................                    2,154
----------------------------------------------------------------------------------------------------------------
                                                     IMPACT
----------------------------------------------------------------------------------------------------------------
14-in Square Concrete................                      166                      160                       25
16-in Square Concrete................                      166  .......................                       25
24-in Concrete piles.................                      176  .......................                      117
Wide Flange Beam (attenuated \a\)....                194 (187)  .......................                  \b\ 631
30-in Steel Pipe (attenuated \a\)....                190 (183)  .......................                  \b\ 341
36-in Steel Pipe (attenuated \a\)....                193 (186)  .......................                  \b\ 541
----------------------------------------------------------------------------------------------------------------
\a\ Includes 7dB reduction for use of bubble curtain.
\b\ Calculated using attenuated source level.

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources such has pile 
driving, NMFS User Spreadsheet predicts the distance at which, if a 
marine mammal remained at that distance the whole duration of the 
activity, it would incur PTS. Inputs used in the User Spreadsheet, and 
the resulting isopleths are reported below.

[[Page 37841]]



                              Table 5--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Weighting             Number of   Duration to                             Distance from
                                                                   factor     Source     piles       drive a     Number of   Propagation   source level
  Pile size and installation  method     Spreadsheet tab used    adjustment   level   within 24-h  single pile  strikes per    (xLogR)      measurement
                                                                   (kHz)                 period     (minutes)       pile                        (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
16-in Timber (removal)...............  A.1) Vibratory pile              2.5  \a\ 152           10            5  ...........           15              10
                                        driving.
12-in Square Concrete (removal)......  .......................  ...........  \a\ 155           10            5
Steel sheet pile.....................  .......................  ...........  \a\ 160           20           10
30-in Steel Pipe.....................  .......................  ...........  \a\ 170            1           10
36-in Steel Pipe.....................  .......................  ...........  \a\ 170   \d\ 2 or 1           10
Wide Flange Beam.....................  .......................  ...........  \a\ 155            4           10
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         IMPACT
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-in Square Concrete................  E.1) Impact pile                   2  \b\ 155            4  ...........          500           15              10
                                        driving.
16-in Square Concrete................  .......................  ...........  \b\ 155            4
24-in Concrete piles.................  .......................  ...........  \b\ 166            4
Wide Flange Beam (attenuated)........  .......................  ...........  b c 171            4
30-in Steel Pipe (attenuated)........  .......................  ...........  b c 170            1
36-in Steel Pipe (attenuated)........  .......................  ...........  b c 176   \d\ 2 or 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ dB RMS SPL at 10m
\b\ dB SEL at 10m
\c\ Includes 7dB reduction from use of bubble curtain.
\d\ Two piles within a 24-hour period during Year 1 activities, one pile within a 24-hour period during Year 2 activities.


                          Table 6--Calculated Distances to Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                                  Level A--radius to isopleth (m)
                     Source                      ---------------------------------------------------------------
                                                   MF cetaceans    HF cetaceans       Phocids        Otariids
----------------------------------------------------------------------------------------------------------------
                                                    VIBRATORY
----------------------------------------------------------------------------------------------------------------
16-in Timber (removal)..........................              <1               2              <1              <1
12-in Square Concrete (removal).................              <1               4               2              <1
Steel sheet pile................................               1              19               8              <1
30-in Steel Pipe................................              <1              12               5              <1
36-in Steel Pipe (Year 1).......................               1              19               8              <1
36-in Steel Pipe (Year 2).......................              <1              12               5              <1
Wide Flange Beam................................              <1               3               1              <1
----------------------------------------------------------------------------------------------------------------
                                                     IMPACT
----------------------------------------------------------------------------------------------------------------
14-in Square Concrete...........................              <1              26              12              <1
16-in Square Concrete...........................              <1              26              12              <1
24-in Concrete piles............................               4             139              62               5
Wide Flange Beam (attenuated)...................               9             299             135              10
30-in Steel Pipe (attenuated)...................               3             102              46               3
36-in Steel Pipe (Year 1, attenuated)...........              12             406             183              13
36-in Steel Pipe (Year 2, attenuated)...........               8             256             115               8
----------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. We describe how the information provided above is brought 
together to produce a quantitative take estimate.
Bottlenose Dolphin
    Bottlenose dolphins began entering San Francisco Bay in 2010 
(Szczepaniak 2013). They primarily occur in the western Central and 
South Bay, from the Golden Gate Bridge to Oyster Point and Redwood 
City. However, one individual has been regularly seen in the Bay since 
2016 near the former Alameda Air Station (Perlman 2017; W. Keener, 
pers. comm. 2017), and five animals were regularly seen in the summer 
and fall of 2018 in the same location (W. Keener, pers. comm. 2019). 
This area is on the far side of Alameda Island from the project area, 
approximately 6.8 mi (10.9 km) by water.
    There have been no formal surveys of marine mammals in the Estuary 
before 2019 (W. Keener, pers. comm, 2019), and no known reports of 
bottlenose dolphins in the Estuary between 2006 and May 2019 (NMFS 
2019a, 2019b). The two closest known sightings to the project area were 
of a single dolphin on one occasion and an adult and juvenile on 
another occasion in February 2019. Both sightings were on the edge of 
the Inner Harbor Entrance Channel to the northwest of the Estuary, 
approximately 5.8 mi (9.3 km) from the project area (W. Keener, pers. 
comm., 2019).
    Pacific Shops conducted 30 hours of monitoring over four days in 
June 2019 at the project site, and did not observe any bottlenose 
dolphins. Additionally, six local frequent users of the Estuary 
interviewed for this project reported never having seen a bottlenose 
dolphin in the Estuary. However, the applicant has requested the 
authorization of Level B harassment take of bottlenose dolphins due to 
their year-round presence in the Bay, regular proximity to the work 
area, and potential to enter the Level B harassment zone while pile 
driving or removal are underway.
    Pacific Shops conservatively estimates that a group of two 
bottlenose dolphins may occur in the project area

[[Page 37842]]

every 10 project days. NMFS concurs that this approach is reasonable 
given the available information. Pacific Shops has requested, and NMFS 
has authorized, 14 Level B harassment takes of bottlenose dolphins 
during Year 1 (2 individuals/10 days * 68 project days = 14 Level B 
harassment takes), and 20 Level B harassment takes of bottlenose 
dolphins during Year 2 (2 individuals/10 days * 98 project days = 20 
Level B harassment takes).
    The largest Level A harassment zone for mid-frequency cetaceans 
extends 12 m from the source during impact pile driving of 36-in steel 
pipe piles during Year 1, and 9 m from the source during impact pile 
driving of wide flange beams in Year 2 (Table 6). Pacific Shops is 
planning to implement a 25 m shutdown zone during those activities 
(Table 8). Given the small size of the Level A harassment zones, the 
shutdown zones are expected to eliminate the potential for Level A 
harassment take of bottlenose dolphins. Therefore, NMFS has not 
authorized Level A harassment take of bottlenose dolphins.
Harbor Porpoise
    Historically, harbor porpoise primarily occur near the Golden Gate 
Bridge, Marin County, and the city of San Francisco on the northwest 
side of the Bay (Keener et al. 2012, Stern et al. 2017). However, in 
the summer of 2017 and 2018, mom-calf pairs and small groups (one to 
four individuals) were seen to the north and west of Treasure Island, 
and just south of YBI (Caltrans 2018a, 2019), indicating that their 
range may be expanding within the Bay.
    No formal surveys of marine mammals were conducted in the Estuary 
before 2019 (W. Keener, pers. comm. 2019). The applicant conducted 30 
hours of monitoring over four days in June 2019 at the project site, 
and did not observe any harbor porpoises. Six local frequent users of 
the Estuary interviewed for this project reported never seeing a harbor 
porpoise in the Estuary. Between 2006 and June 2019, one harbor 
porpoise stranded in the Estuary. The animal was in an advanced state 
of decomposition (NMFS 2019a), indicating that it probably died outside 
of the Estuary and floated in. However, given their year-round 
residency in the Bay, their proximity to the work area, and their 
seemingly expanding range within the Bay, the applicant has requested 
the authorization of Level B harassment take of harbor porpoise.
    Pacific Shops conservatively estimates that a group of two harbor 
porpoises may occur in the project area every 10 project days. NMFS 
concurs that this approach is reasonable given the available 
information. Pacific Shops has requested, and NMFS has authorized, 14 
Level B harassment takes of harbor porpoise during Year 1 (2 
individuals/10 days * 68 project days = 14 Level B harassment takes), 
and 20 Level B harassment takes of harbor porpoise during Year 2 (2 
individuals/10 days * 98 project days = 20 Level B harassment takes).
    The largest Level A harassment zone for high-frequency cetaceans 
extends 406 m from the source during impact pile driving of 36-in steel 
pipe piles in Year 1, and 299 m during impact installation of wide 
flange beams in Year 2 (Table 6). We do not expect a harbor porpoise to 
remain within the Level A harassment zone during either activity for a 
long enough period to incur PTS. Pacific Shops is planning to implement 
400 m and 300m shutdown zones, respectively, during those activities 
(Table 8). These shutdown zones include the respective 11.7 m and 7.4 m 
peak PTS isopleths. Pacific Shops will station a far field PSO on a 
3.8m (12.5 ft) high barge, and the nearfield PSO on a metal storage 
container approximately 2.6m (8.5 ft) high. NMFS expects that these 
elevated locations, in combination with the anticipated ideal weather 
conditions, will allow PSOs to effectively observe harbor porpoises at 
400 m. Therefore, the shutdown zones are expected to eliminate the 
potential for Level A harassment take of harbor porpoise, and NMFS has 
not authorized Level A harassment take of harbor porpoise.
California Sea Lion
    There have been no formal surveys of marine mammals in the Oakland 
Estuary before 2019 (W. Keener, pers. comm. 2019). The few sightings 
that have been recorded have been opportunistic, including a sea lion 
observed in May 2017 in the small canal that connects Lake Merritt with 
the Estuary (Martichoux, 2017). Between 2006 and May 2019, 18 confirmed 
sea lion sightings in the Estuary were reported to TMMC and California 
Academy of Sciences (CAS) (NMFS 2019a, 2019b), and between 2006 and 
June 2019, three sea lions stranded in the Estuary (NMFS 2019a, 2019b). 
The applicant conducted 30 hours of monitoring over four days in June 
2019 at the project site, and observed one sea lion near the project 
site, across the Estuary under the Coast Guard dock approximately 1130 
ft (345 m) from the Alameda Marina shoreline. Interviews with local 
frequent users of the Estuary confirm that sightings of sea lions are 
rare. Two people interviewed reported seeing one to two sea lions per 
year in the Estuary. California sea lions forage for Pacific herring in 
eelgrass beds in the winter (Schaeffer et al. 2007), however, there are 
no eelgrass beds in the Estuary to attract foraging sea lions.
    Pacific Shops conservatively estimates that one California sea lion 
may occur in the project area every five project days. NMFS concurs 
that this approach is reasonable given the available information. 
Therefore Pacific Shops has requested, and NMFS has authorized, 14 
Level B harassment takes of California sea lion during Year 1 (1 
individual/5 days * 68 project days = 14 Level B harassment takes), and 
20 Level B harassment takes of California sea lion during Year 2 (1 
individual/5 days * 98 project days = 20 Level B harassment takes).
    The largest Level A harassment zone for otariids extends 13 m from 
the source during impact pile driving of 36-in steel pipe piles in Year 
1, and 10 m from the source during impact pile driving of wide flange 
beams in Year 2 (Table 6). Pacific Shops is planning to implement a 25 
m shutdown zone during those activities (Table 8). Given the small size 
of the Level A harassment zones, we expect the shutdown zones to 
eliminate the potential for Level A harassment take of California sea 
lion. Therefore, NMFS has not authorized Level A harassment take of 
California sea lion.
Northern Fur Seal
    There are no available density estimates of northern fur seals in 
the project area, and northern fur seals have not been reported in the 
Estuary (NMFS 2019b). The applicant conducted 30 hours of monitoring 
over four days in June 2019 at the project site and did not observe any 
fur seals. Between 2006 and May 2019 there were no reports of stranded 
fur seals in the Estuary (NMFS 2019a, 2019b). Interviews with frequent 
users of the Estuary also reported they had never seen a fur seal in 
the Estuary. However, to account for the possible rare presence of the 
species in the action area, NMFS has authorized six Level B harassment 
takes of northern fur seal during Year 1, and nine Level B harassment 
takes of northern fur seal during Year 2.
    The largest Level A harassment zone for otariids extends 13 m from 
the source during impact pile driving of 36-in steel pipe piles in Year 
1, and 10 m from the source during impact pile driving of wide flange 
beams in Year 2 (Table 6). Pacific Shops is planning to implement a 25 
m shutdown zone during those activities (Table 8). Given the small size 
of the Level A harassment

[[Page 37843]]

zones, we expect the shutdown zones to eliminate the potential for 
Level A harassment take of northern fur seal. Therefore, NMFS has not 
authorized Level A harassment take of northern fur seal.
Northern Elephant Seal
    There are no available density estimates of northern elephant seals 
in the project area. Generally, only juvenile elephant seals enter the 
Bay seasonally and do not remain long if they are healthy. From mid-
February to the end of June, TMMC reports the most strandings, 
primarily of malnourished juveniles (TMMC, 2019). However, no elephant 
seals, alive or stranded, have been reported in the Estuary (NMFS 
2019a, 2019b). The applicant conducted 30 hours of monitoring over four 
days in June 2019 at the project site and did not observe any elephant 
seals. Interviews with frequent users of the Estuary also reported they 
had never seen an elephant seal in the Estuary. However, to account for 
the possible rare presence of the species in the action area, NMFS has 
authorized six Level B harassment takes of northern elephant seal 
during Year 1, and nine Level B harassment takes of northern elephant 
seal during Year 2.
    The largest Level A harassment zone for phocids extends 183 m from 
the source during impact pile driving of 36-in steel pipe piles in Year 
1, and 135 m from the source during impact pile driving of wide flange 
beams in Year 2 (Table 6). Pacific Shops is planning to implement a 190 
m and 140 m shutdown zone, respectively, during those activities (Table 
8). Given the small size of the Level A harassment zones, we expect the 
shutdown zones to eliminate the potential for Level A harassment take 
of northern elephant seal. Therefore, NMFS has not authorized Level A 
harassment take of northern elephant seal.
Harbor Seal
    There have been no formal surveys of marine mammals in the Estuary 
before 2019 (W. Keener, pers. comm. 2019), and the few recorded harbor 
seal sightings have been opportunistic. The applicant conducted 30 
hours of monitoring over four days in June 2019 at the project site and 
did not observe any harbor seals. A local recreational boater who lives 
on his boat full-time in the existing Alameda Marina reported seeing a 
harbor seal approximately twice a week throughout 2019 (G. Dees, pers. 
comm. 2019). Another recreational boater who is occasionally on her 
boat in Alameda Marina reported a harbor seal in the marina on five 
days in August through October 2019 (T. Drake, pers. comm. 2019). This 
respondent also reported that a single harbor seal occasionally hauled 
out on the marina docks for several hours. Two staff members of a local 
marina reported an average of two harbor seals per month in the 
Estuary. There were only four confirmed harbor seal sightings reported 
in the Estuary to TMMC and CAS between 2006 and May 2019 (NMFS 2019a, 
2019b), and a dead harbor seal at Pier 2 in the existing Alameda Marina 
on October 27, 2019 (T. Drake, pers. comm. 2019).
    The number of harbor seals hauled out on a floating platform at the 
Alameda Breakwater, approximately 7.8 mi (12.6 km) from the project 
area, has been recorded almost every day since March 2014 (M. Klein and 
R. Bangert, pers. comm. 2019). Between zero and 75 seals haul out each 
day. More animals are present in the winter during the herring run. 
However, based on observations at the Alameda Marina, we do not expect 
the counts at the Alameda Breakwater to be representative of harbor 
seal presence in the project area.
    Between 2006 and June 2019, only two harbor seals stranded in the 
Estuary (NMFS 2019a, 2019b). In August 2017, a harbor seal was seen in 
Lake Merritt, after transiting through the Estuary (Martichoux 2017). 
Grigg et al. (2012) tagged 19 harbor seals at Castro Rocks, 
approximately 15.2 mi (24.5 km) north-northeast of the project area. 
Although some ranged as far as the South Bay, approximately 39 mi (63 
km) from Castro Rocks, none were recorded in the Estuary (Grigg et al. 
2012).
    Pacific Shops conservatively estimates that one harbor seal may 
enter the project area per project day. NMFS concurs that this approach 
is reasonable given the available information. Therefore, Pacific Shops 
has requested, and NMFS has authorized, 68 Level B harassment takes of 
harbor seal in Year 1 (1 harbor seal per day x 68 project days = 68 
Level B harassment takes), and 98 Level B harassment takes of harbor 
seal in Year 2 (1 harbor seal per day x 98 project days = 98 Level B 
harassment takes).
    The largest Level A harassment zone for phocids extends 183 m from 
the source during impact pile driving of 36-in steel pipe piles in Year 
1, and 135 m from the source during impact pile driving of wide flange 
beams in Year 2 (Table 6). We do not expect a harbor seal to remain 
within the Level A harassment zone for a long enough period to incur 
PTS. Pacific Shops is planning to implement a 190 m and 140 m shutdown 
zone, respectively, during the activities referenced above (Table 8), 
and there is no peak PTS isopleth for phocids for either activity. 
Additionally, as noted previously, PSOs would be observing from 
elevated structures (a 2.6m (8.5 ft) high storage container in the 
nearfield and 3.8 m (12.6 ft) high barge in the far-field) which would 
further increase their ability to detect harbor seals within this zone. 
Therefore, the shutdown zones are expected to eliminate the potential 
for Level A harassment take of harbor seal, and NMFS has not authorized 
Level A harassment take of harbor seal.

                       Table 7--Estimated Take by Level B Harassment, by Species and Stock
----------------------------------------------------------------------------------------------------------------
                                                                             Year 1  Level B    Year 2  Level B
                                                                             harassment take    harassment take
           Common name                     Stock          Stock abundance      (percent of        (percent of
                                                                                  stock)             stock)
----------------------------------------------------------------------------------------------------------------
Bottlenose Dolphin...............  California Coastal..                453           14 (3.1)           20 (4.4)
Harbor Porpoise..................  San Francisco/                    9,886           14 (0.1)           20 (0.2)
                                    Russian River.
California Sea Lion..............  United States.......            257,606          14 (0.01)          20 (0.01)
Northern Fur Seal................  California..........             14,050           6 (0.04)           9 (0.06)
                                   Eastern North                   620,660            (<0.01)            (<0.01)
                                    Pacific.
Northern Elephant Seal...........  California Breeding.            179,000          6 (<0.01)          9 (<0.01)
Harbor Seal......................  California..........             30,968           68 (0.2)           98 (0.3)
----------------------------------------------------------------------------------------------------------------


[[Page 37844]]

Mitigation Measures

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) the practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    In addition to the measures described later in this section, 
Pacific Shops will employ the following mitigation measures:
     For in-water heavy machinery work other than pile driving, 
if a marine mammal comes within 10 m, operations shall cease and 
vessels shall reduce speed to the minimum level required to maintain 
steerage and safe working conditions;
     Conduct briefings between construction supervisors and 
crews and the marine mammal monitoring team prior to the start of all 
pile driving activity and when new personnel join the work, to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures;
     For those marine mammals for which Level B harassment take 
has not been requested, in-water pile installation/removal will shut 
down immediately if such species are observed within or entering the 
Level B harassment zone; and
     If take reaches the authorized limit for an authorized 
species, pile installation will be stopped as these species approach 
the Level B harassment zone to avoid additional take.
    The following mitigation measures apply to Pacific Shops' in-water 
construction activities.
     Establishment of Shutdown Zones--Pacific Shops will 
establish shutdown zones for all pile driving and removal activities. 
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 will vary based on the activity type and marine mammal 
hearing group. The largest shutdown zones are generally for high 
frequency cetaceans, as shown in Table 8.
     The placement of PSOs during all pile driving and removal 
activities (described in detail in the Monitoring and Reporting 
section) will ensure that the entire shutdown zone is visible during 
pile installation. Should environmental conditions deteriorate such 
that marine mammals within the entire shutdown zone would not be 
visible (e.g., fog, heavy rain), pile driving and removal must be 
delayed until the PSO is confident marine mammals within the shutdown 
zone could be detected.

                          Table 8--Shutdown Zones During Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
                                                                        Shutdown zone  (m)
                     Source                      ---------------------------------------------------------------
                                                   MF cetaceans    HF cetaceans       Phocids        Otariids
----------------------------------------------------------------------------------------------------------------
                                                    VIBRATORY
----------------------------------------------------------------------------------------------------------------
16-in Timber (removal)..........................              10              10              10              10
12-in Square Concrete (removal).................
Steel sheet pile................................
30-in Steel Pipe................................  ..............              25
36-in Steel Pipe (Year 1).......................
36-in Steel Pipe (Year 2).......................
Wide Flange Beam................................  ..............              10
----------------------------------------------------------------------------------------------------------------
                                                     IMPACT
----------------------------------------------------------------------------------------------------------------
14-in Square Concrete...........................              25              30              25              25
16-in Square Concrete...........................
24-in Concrete piles............................  ..............             140              70
Wide Flange Beam................................  ..............             300             140
30-in Steel Pipe................................  ..............             140              70
36-in Steel Pipe (Year 1).......................  ..............         \a\ 400             190
36-in Steel Pipe (Year 2).......................              10             260             120              10
----------------------------------------------------------------------------------------------------------------
\a\ This shutdown zone is smaller than the 406 m Level A harassment zone. NMFS expects that this shutdown zone
  is sufficient to prevent Level A harassment, given the duration component associated with Level A harassment
  take.


[[Page 37845]]

     Monitoring for Level B Harassment--Pacific Shops will 
monitor the Level B harassment zones (areas where SPLs are equal to or 
exceed the 160 dB rms threshold for impact driving and the 120 dB rms 
threshold during vibratory pile driving) and the Level A harassment 
zones. Monitoring zones provide utility for observing by establishing 
monitoring protocols for areas adjacent to the shutdown zones. 
Monitoring zones enable observers to be aware of and communicate the 
presence of marine mammals in the project area outside the shutdown 
zone and thus prepare for a potential cease of activity should the 
animal enter the shutdown zone. Placement of PSOs on the shorelines 
around Alameda Marina will allow PSOs to observe marine mammals within 
the Level B harassment zones. However, due to the large Level B 
harassment zones (Table 4), PSOs will not be able to effectively 
observe the entire zone. Therefore, Level B harassment exposures will 
be recorded and extrapolated based upon the number of observed takes 
and the percentage of the Level B harassment zone that was not visible.
     Pre-activity Monitoring--Prior to the start of daily in-
water construction activity, or whenever a break in pile driving/
removal of 30 minutes or longer occurs, PSOs will observe the shutdown 
and monitoring zones for a period of 30 minutes. The shutdown zone will 
be considered cleared when a marine mammal has not been observed within 
the zone for that 30-minute period. If a marine mammal is observed 
within the shutdown zone, a soft-start cannot proceed until the animal 
has left the zone or has not been observed for 15 minutes. When a 
marine mammal for which Level B harassment take is authorized is 
present in the Level B harassment zone, activities may begin and Level 
B harassment take will be recorded. If the entire Level B harassment 
zone is not visible at the start of construction, pile driving 
activities can begin. If work ceases for more than 30 minutes, the pre-
activity monitoring of the shutdown zones will commence.
     Soft Start--Soft-start procedures are believed to provide 
additional protection to marine mammals by providing warning and/or 
giving marine mammals a chance to leave the area prior to the hammer 
operating at full capacity. For impact pile driving, contractors will 
be required to provide an initial set of three strikes from the hammer 
at reduced energy, followed by a thirty-second waiting period. This 
procedure will be conducted three times before impact pile driving 
begins. Soft start will be implemented at the start of each day's 
impact pile driving and at any time following cessation of impact pile 
driving for a period of 30 minutes or longer.
     Pile driving energy attenuator--Pacific Shops will use a 
marine pile-driving energy attenuator (i.e., air bubble curtain system) 
during impact pile driving of the wide flange beams, 30-in steel pipe 
piles, and 36-in steel pipe piles. The use of sound attenuation will 
reduce SPLs and the size of the zones of influence for Level A 
harassment and Level B harassment. Bubble curtains will meet the 
following requirements:
    [cir] The bubble curtain must distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column.
    [cir] The lowest bubble ring shall be in contact with the mudline 
for the full circumference of the ring, and the weights attached to the 
bottom ring shall ensure 100 percent mudline contact. No parts of the 
ring or other objects shall prevent full mudline contact.
    [cir] The bubble curtain shall be operated such that there is 
proper (equal) balancing of air flow to all bubblers.
    Based on our evaluation of the applicant's planned measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means effecting the least practicable 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Marine mammal monitoring must be conducted in accordance with the 
Marine Mammal Monitoring Plan, dated June 2020. Marine mammal 
monitoring during pile driving and removal must be conducted by NMFS-
approved PSOs in a manner consistent with the following:
     Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods must be used;
     Where a team of three or more PSOs are required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer must have prior experience working as a marine mammal observer 
during construction;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
     Pacific Shops must submit PSO CVs for approval by NMFS 
prior to the onset of pile driving.
    PSOs must have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals,

[[Page 37846]]

including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    Two PSOs will monitor for marine mammals during all pile driving 
and removal activities. PSO locations will provide an unobstructed view 
of all water within the shutdown zone, and as much of the Level A and 
Level B harassment zones as possible. PSO locations are as follows:
     On top of a metal storage container at the pile driving 
site or best vantage point practicable to monitor the shutdown zone; 
and
     On the barge at the end of Pier 5.
    Monitoring will be conducted 30 minutes before, during, and 30 
minutes after pile driving/removal 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 piles being driven or removed. Pile driving 
activities include the time to install or remove a single pile or 
series of piles, as long as the time elapsed between uses of the pile 
driving or drilling equipment is no more than 30 minutes.

Acoustic Monitoring

    Pacific Shops intends to conduct a sound source verification (SSV) 
study to confirm the sound source levels, transmission loss 
coefficient, and size of the Level A and Level B harassment zones. They 
intend to request a modification to the zones, if appropriate based on 
the results of the SSV study. Their plan follows accepted 
methodological standards to achieve their objectives, and is available 
on NMFS' website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. If NMFS 
approves the results of the SSV study, we will modify the zone sizes 
based on the approved data. Acoustic monitoring report requirements are 
listed in the Reporting section, below.

Reporting

    A draft marine mammal monitoring report will be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities. The report will include an overall description of work 
completed, a narrative regarding marine mammal sightings, and 
associated PSO data sheets. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring.
     Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
driven or removed and by what method (i.e., impact or vibratory).
     Weather parameters and water conditions during each 
monitoring period (e.g., wind speed, percent cover, visibility, sea 
state).
     The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting.
     Age and sex class, if possible, of all marine mammals 
observed.
     PSO locations during marine mammal monitoring.
     Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting).
     Description of any marine mammal behavior patterns during 
observation, including direction of travel and estimated time spent 
within the Level A and Level B harassment zones while the source was 
active.
     Number of individuals of each species (differentiated by 
month as appropriate) detected within the monitoring zone, and 
estimates of number of marine mammals taken, by species (a correction 
factor may be applied to total take numbers, as appropriate).
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any.
     Description of attempts to distinguish between the number 
of individual animals taken and the number of incidences of take, such 
as ability to track groups or individuals.
     An extrapolation of the estimated takes by Level B 
harassment based on the number of observed exposures within the Level B 
harassment zone and the percentage of the Level B harassment zone that 
was not visible.
    If no comments are received from NMFS within 30 days, the draft 
report will constitute the final report. If comments are received, a 
final report addressing NMFS comments must be submitted within 30 days 
after receipt of comments.
    Pacific Shops must include the following information in their 
acoustic monitoring report.
     Hydrophone equipment and methods: Recording device, 
sampling rate, distance (m) from the pile where recordings were made; 
depth of recording device(s).
     Type and size of pile being driven, substrate type, method 
of driving during recordings.
     Whether a sound attenuation device is used, and if so, 
duration of its use per pile.
     For impact pile driving: Pulse duration and mean, median, 
and maximum sound levels (dB re: 1[micro]Pa): Cumulative sound exposure 
level (SELcum), peak sound pressure level (SPLpeak), root-mean-square 
sound pressure level (SPLrms), and single-strike sound exposure level 
(SELs-s).
     For vibratory driving/removal: Mean, median, and maximum 
sound levels (dB re: 1[micro]Pa): SPLrms, SELcum, and timeframe over 
which the sound is averaged.
     Number of strikes (impact) or duration (vibratory) per 
pile measured, one-third octave band spectrum, power spectral density 
plot.
     Estimated source levels referenced to 10 m, transmission 
loss coefficients, and estimated Level A and Level B harassment zones.
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the IHA-holder shall report 
the incident to the Office of Protected Resources (OPR) (301-427-8401), 
NMFS and to the West Coast Region Stranding Hotline (866-767-6114) as 
soon as feasible. If the death or injury was clearly caused by the 
specified activity, the IHA-holder must immediately cease the specified 
activities until NMFS is able to review the circumstances of the 
incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the IHA. The IHA-
holder must not resume their activities until notified by NMFS.
    The report must include the following information:
    i. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    ii. Species identification (if known) or description of the 
animal(s) involved;

[[Page 37847]]

    iii. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    iv. Observed behaviors of the animal(s), if alive;
    v. If available, photographs or video footage of the animal(s); and
    vi. General circumstances under which the animal was discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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 (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all of the species listed in Table 7, given that many of the 
anticipated effects of this project on different marine mammal stocks 
are expected to be relatively similar in nature. Also, because the 
nature of the estimated takes anticipated to occur are identical in 
Years 1 and 2, and the number of estimated takes in each year are 
extremely similar, the analysis below applies to each of the IHAs.
    The nature of the pile driving project precludes the likelihood of 
serious injury or mortality, and the mitigation is expected to ensure 
that no Level A harassment occurs, which would be unlikely to occur 
even absent the required mitigation. For all species and stocks, take 
will occur within a limited, confined area (Oakland Estuary) of any 
given stock's range. Take will be limited to Level B harassment only 
due to potential behavioral disturbance and TTS. Effects on individuals 
that are taken by Level B harassment, on the basis of reports in the 
literature as well as monitoring from other similar activities, will 
likely be limited to reactions such as increased swimming speeds, 
increased surfacing time, or decreased foraging (if such activity were 
occurring) (e.g., Thorson and Reyff 2006; HDR, Inc. 2012; Lerma 2014; 
ABR 2016). Level B harassment will be reduced to the level of least 
practicable adverse impact through use of mitigation measures described 
herein. Further, the amount of take authorized for any given stock is 
extremely small when compared to stock abundance.
    Exposure to noise resulting in Level B harassment for all species 
is expected to be temporary and minor due to the general lack of use of 
the Oakland Estuary by marine mammals, as previously explained. In 
general, marine mammals are only occasionally sighted within the 
Oakland Estuary. Any behavioral harassment occurring during the project 
is highly unlikely to impact the health or fitness of any individuals, 
much less effect annual rates of recruitment or survival. Any 
harassment will be brief, and if sound produced by project activities 
is sufficiently disturbing, animals are likely to simply avoid the area 
while the activity is occurring.
    As previously discussed, the closest harbor seal pupping area is 
24.5 km (15.2 mi) from the project area. However, there are no habitat 
areas of particular importance for marine mammals within the Oakland 
Estuary, and it is not preferred habitat for marine mammals. Therefore, 
we expect that animals annoyed by project sound will simply avoid the 
area and use more-preferred habitats, particularly as the project will 
only occur on approximately 68 days in Year 1, and 98 days in Year 2, 
for up to approximately 9.5 hours per day.
    The project is also not expected to have significant adverse 
effects on affected marine mammals' habitats. The project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish to leave the area of 
disturbance, thus temporarily impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; but, because 
of the short duration of the activities and the relatively small area 
of the habitat that may be affected, the impacts to marine mammal 
habitat are not expected to cause significant or long-term negative 
consequences.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized.
     No Level A harassment is anticipated or authorized.
     The number and intensity of anticipated takes by Level B 
harassment is relatively low for all stocks.
     No biologically important areas have been identified 
within the project area.
     For all species, the Oakland Estuary is a very small part 
of their range.
     For all species, Level B harassment takes authorized in 
each IHA will affect less than five percent of each stock.
    Year 1 IHA--Based on the analysis contained herein of the likely 
effects of the specified activity on marine mammals and their habitat, 
and taking into consideration the implementation of the required 
monitoring and mitigation measures, we find that the total marine 
mammal take from Pacific Shops' construction activities will have a 
negligible impact on the affected marine mammal species or stocks.
    Year 2 IHA--Based on the analysis contained herein of the likely 
effects of the specified activity on marine mammals and their habitat, 
and taking into consideration the implementation of the required 
monitoring and mitigation measures, we find that the total marine 
mammal take from the Pacific Shops' construction activities will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers so, in practice, where estimated numbers 
are available, NMFS compares the number of individuals taken to the 
most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. Additionally, other qualitative 
factors may be considered in the analysis, such

[[Page 37848]]

as the temporal or spatial scale of the activities.
    Table 7 includes the number of takes for each species authorized to 
be taken as a result of activities in Year 1 and Year 2 of this 
project. Our analysis shows that less than one-third of the best 
available population abundance estimate of each stock could be taken by 
harassment during each project year. In fact, for each stock, the take 
authorized each year comprises less than five percent of the stock 
abundance. The number of animals authorized to be taken for each stock 
discussed above would be considered small relative to the relevant 
stock's abundances even if each estimated taking occurred to a new 
individual, which is an unlikely scenario.
    Year 1 IHA--Based on the analysis contained herein of the activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks in Year 1 of the project.
    Year 2 IHA--Based on the analysis contained herein of the activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks in Year 2 of the project.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks will not 
have an unmitigable adverse impact on the availability of such species 
or stocks for taking for subsistence purposes.

Endangered Species Act

    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 whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for 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 evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment. This action is consistent with categories of activities 
identified in Categorical Exclusion 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. Accordingly, NMFS has determined 
that the action qualifies to be categorically excluded from further 
NEPA review.

Authorization

    NMFS has issued an IHA to Pacific Shops, Inc. for the potential 
harassment of small numbers of six marine mammal species incidental to 
the Alameda Marina Shoreline Improvement Project in Alameda, CA, 
provided the previously mentioned mitigation, monitoring and reporting 
requirements are followed.

    Dated: June 19, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-13652 Filed 6-23-20; 8:45 am]
BILLING CODE 3510-22-P