[Federal Register Volume 86, Number 88 (Monday, May 10, 2021)]
[Notices]
[Pages 24850-24852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09867]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB055]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the North Jetty Maintenance and 
Repairs Project in Coos Bay, Oregon

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

[[Page 24851]]


ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: NMFS has received a request from the U.S. Army Corps of 
Engineers (USACE) for the re-issuance of a previously issued incidental 
harassment authorization (IHA) with the only change being effective 
dates. The initial IHA authorized take of seven species of marine 
mammals, by Level B harassment only, incidental to construction 
associated with the Coos Bay North Jetty maintenance and repairs 
project in Coos Bay, Oregon. The project has been delayed and none of 
the work covered in the initial IHA has been conducted. The initial IHA 
was effective from September 1, 2020, through August 31, 2021. The 
USACE has requested re-issuance with new effective dates of September 
1, 2021, through August 31, 2022. The scope of the activities and 
anticipated effects remain the same, authorized take numbers are not 
changed, and the required mitigation, monitoring, and reporting remains 
the same as included in the initial IHA. NMFS is, therefore, issuing a 
second identical IHA to cover the incidental take analyzed and 
authorized in the initial IHA.

DATES: This authorization is effective from September 1, 2021 through 
August 31, 2022.

ADDRESSES: An electronic copy of the final 2020 IHA previously issued 
to the USACE, the USACE's application, and the Federal Register notices 
proposing and issuing the initial IHA may be obtained by visiting 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-army-corps-engineers-north-jetty-maintenance-and-repairs. In case of 
problems accessing these documents, please call the contact listed 
below (see FOR FURTHER INFORMATION CONTACT).

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act 
(MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as 
delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On March 18, 2019, NMFS received a request from USACE for two IHAs 
to take marine mammals incidental to vibratory pile driving and removal 
associated with the North Jetty maintenance and repairs project, Coos 
Bay, Oregon over the course of two years with pile installation 
occurring during Year 1 and pile removal occurring during Year 2. The 
application was deemed adequate and complete on September 10, 2019. The 
USACE's request was for take of a small number of seven species of 
marine mammals by Level B harassment only. Neither USACE nor NMFS 
expects injury, serious injury or mortality to result from this 
activity and, therefore, IHAs are appropriate. The USACE, in 
coordination with the Oregon Department of Fish and Wildlife (ODFW) and 
NMFS' Northwest Region, plans to conduct pile driving and removal 
October 1st through February 15th and June 1st and July 31st to 
minimize effects to listed salmonids. Adherence to the in-water work 
window is part of USACE's Endangered Species Act (ESA) consultation 
under Standard Local Operating Procedures for Endangered Species 
(SLOPES) to administer actions authorized or carried out by the USACE 
in Oregon (SLOPES IV In-water Over-water Structures). The ODFW will 
make the final determination of the in-water work window. On January 3, 
2020, NMFS issued the two IHAs to the USACE. The Year 1 IHA was 
effective from September 1, 2020 through August 31, 2021 and the Year 2 
IHA was effective July 1, 2022 through June 30, 2023. On February 20, 
2021, the USACE notified NMFS that the project had been delayed. None 
of the work identified in the year 1 IHA (e.g., pile installation) has 
occurred. The USACE submitted a request for a new identical IHA for 
Year 1 of construction that would be effective from September 1, 2021 
through August 31, 2022, in order to conduct the construction work that 
was analyzed and authorized through the previously issued IHA 
(hereafter referred to as the initial IHA). Therefore, re-issuance of 
the IHA is appropriate.

Summary of Specified Activity and Anticipated Impacts

    The planned activities (including mitigation, monitoring, and 
reporting), authorized incidental take, and anticipated impacts on the 
affected stocks are the same as those analyzed and authorized through 
the previously issued IHA.
    The purpose of the USACE's construction project is to repair 
critically damaged sections of the Coos Bay North Jetty, monitor 
erosion, and to maintain stable deep-draft navigation through the 
entrance into Coos Bay. Repair activities completed now will reduce the 
risk of jetty failure or a potential breach of the Coos Bay North Spit 
(CBNS). The USACE maintains this jetty system and navigational 
channels, and is planning on conducting major repairs and 
rehabilitation of the North Jetty. The location, timing, and nature of 
the activities, including the types of equipment planned for use, are 
identical to those described in the initial IHA. The mitigation and 
monitoring are also as prescribed in the initial IHA.
    Species that are expected to be taken by the planned activity 
include the harbor seal (Phoca vitulina), northern elephant seal 
(Mirounga angustirostris), Steller sea lion (Eumetopias jubatus), 
California sea lion (Zalophus californianus), gray whale (Eschrichtius 
robustus), harbor porpoise (Phocoena phocoena), and killer whale 
(Orcinus orca). A description of the methods and inputs used to 
estimate take anticipated to occur and, ultimately, the take that

[[Page 24852]]

was authorized is found in the previous documents referenced above. The 
data inputs and methods of estimating take are identical to those used 
in the initial IHA. NMFS has reviewed recent Stock Assessment Reports, 
information on relevant Unusual Mortality Events, and recent scientific 
literature, and determined that no new information affects our original 
analysis of impacts or take estimate under the initial IHA.
    We refer to the documents related to the initial IHA, which include 
the Federal Register notice of the issuance of the initial Year 1 and 
Year 2 IHAs for the USACE's construction work (85 FR 1140; January 9, 
2020), the USACE's application, the Federal Register notice of the 
proposed IHAs (84 FR 56781; October 23, 2019), and all associated 
references and documents.

Determinations

    The USACE will conduct activities as analyzed in the initial IHA. 
As described above, the number of authorized takes of the same species 
and stocks of marine mammals are identical to the numbers that were 
found to meet the negligible impact and small numbers standards and 
authorized under the initial IHA and no new information has emerged 
that would change those findings. The re-issued Year 1 IHA includes 
identical required mitigation, monitoring, and reporting measures as 
the initial IHA, and there is no new information suggesting that our 
analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has determined the following: (1) The required 
mitigation measures will effect the least practicable impact on marine 
mammal species or stocks and their habitat; (2) the authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) the USACE's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action with respect to environmental 
consequences on the human environment.
    Accordingly, NMFS has determined that the issuance of the IHA 
qualifies to be categorically excluded from further NEPA review. This 
action is consistent with categories of activities identified in CE B4 
of the Companion Manual for NOAA Administrative Order 216-6A, which do 
not individually or cumulatively have the potential for significant 
impacts on the quality of the human environment and for which we have 
not identified any extraordinary circumstances that would preclude this 
categorical exclusion.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    However, 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.

Authorization

    NMFS has issued an IHA to the USACE for in-water construction 
activities associated with the specified activity from September 1, 
2021 through August 31, 2022. All previously described mitigation, 
monitoring, and reporting requirements from the initial Year 1 IHA are 
incorporated.

    Dated: May 5, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-09867 Filed 5-7-21; 8:45 am]
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