[Federal Register Volume 87, Number 249 (Thursday, December 29, 2022)]
[Notices]
[Pages 80173-80176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28382]



[[Page 80173]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC633]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Pile Driving for the Long Beach 
Cruise Terminal Improvement Project

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

ACTION: Notice; request for comments on proposed renewal incidental 
harassment authorization.

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SUMMARY: NMFS received a request from Carnival Corporation & GHD 
(Carnival) for the renewal of their currently active incidental 
harassment authorization (IHA) to take marine mammals incidental to 
pile driving for the Long Beach Cruise Terminal improvement project at 
the Port of Long Beach, California. These activities are nearly 
identical to those covered through the current authorization. Pursuant 
to the Marine Mammal Protection Act, prior to issuing the original IHA, 
NMFS requested comments on both the proposed IHA and the potential for 
renewing the initial authorization if certain requirements were 
satisfied. The renewal requirements have been satisfied, and NMFS is 
now providing an additional 15-day comment period to allow for any 
additional comments on the proposed renewal not previously provided 
during the initial 30-day comment period.

DATES: Comments and information must be received no later than January 
13, 2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, and should be submitted via email to 
[email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), 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:

Background

    The Marine Mammal Protection Act (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, an incidental harassment authorization is issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). 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 such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1-year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time 1-year renewal IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected

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species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested renewal, and agency responses will be 
summarized in the final notice of our decision.

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 (i.e., issuance of an IHA renewal) 
with respect to potential impacts on the human environment. This action 
is consistent with categories of activities identified in Categorical 
Exclusion B4 (incidental harassment authorizations with no anticipated 
serious injury or mortality) 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. 
Accordingly, NMFS determined that the issuance of the initial IHA 
qualified to be categorically excluded from further NEPA review. NMFS 
has preliminarily determined that the application of this categorical 
exclusion remains appropriate for this renewal IHA.

History of Request

    On November 19, 2019, NMFS issued an IHA to Carnival to take marine 
mammals incidental to pile driving for the Long Beach Cruise Terminal 
improvement project in Long Beach, California (84 FR 64833), effective 
from November 19, 2019 through November 18, 2020. The original IHA was 
reissued in 2020 (85 FR 81452) and again in 2021 (86 FR 54943), with 
the latter of these referred to herein as the ``initial IHA'' for 
purposes of this proposed renewal IHA. On November 30, 2022, NMFS 
received an application for the renewal of that initial IHA. As 
described in the application for renewal IHA, the activities for which 
incidental take is requested are nearly identical to those covered 
through the initial authorization. No activity has yet been conducted 
under any of the issued IHAs and, therefore, there are no monitoring 
results to report.

Description of the Specified Activities and Anticipated Impacts

    Carnival was issued an initial authorization for take of marine 
mammals incidental to in-water construction activities associated with 
the Port of Long Beach Cruise Terminal Improvement Project in Long 
Beach, California. The purpose of the project is to make improvements 
to its existing berthing facilities at the Long Beach Cruise Terminal 
at the Queen Mary located at Pier H in the Port of Long Beach, in order 
to accommodate a new, larger class of cruise ships. As described in 
detail in the notice of proposed IHA for the original IHA (84 FR 
54867), in-water construction would include installation of a maximum 
of 49 permanent, 36-inch (91.4 centimeters (cm)) steel pipe piles using 
impact and vibratory pile driving. A minor change to the in-water 
construction activities was described in the renewal request by 
Carnival. In addition to the 49 permanent piles, 30 24-inch temporary 
steel pipe piles would be placed to provide a template for placement of 
the permanent piles. Vibratory driving and removal will be used for the 
temporary piles. Pile driving activities were initially expected to 
occur over a period of approximately 26 days. Including the 
aforementioned minor change to the proposed construction activities, 
pile driving activities are likely to occur over a longer total 
duration. Sounds produced by these activities may result in take, by 
Level A harassment and Level B harassment, of marine mammals located in 
Long Beach, California. In addition, related dredging activities would 
occur for approximately 30 days. No take of marine mammals is 
anticipated to occur incidental to the planned dredging. No work has 
been completed under the original IHA or subsequent reissuances.
    Incidental takes to the in-water pile driving and removal and 
dredging in this renewal would be at the same level as authorized in 
the initial IHA. Five marine mammal species are expected to experience 
Level B harassment and one species has the potential for Level A 
harassment (see Estimated Take).
    All documents related to the original and initial IHAs are 
available on our website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-cruise-terminal-improvement-project-port-long-beach-ca.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed here may be found in the Notices of the Proposed and 
Final IHAs for the original authorization. The location of the 
activities and the types of equipment planned for use are identical to 
those described in the previous notices. The only minor change is the 
addition of vibratory installation and removal of temporary 24-inch 
steel piles. Sound source levels using vibratory hammers on 24-inch 
steel piles will create smaller harassment zones than those analyzed in 
the initial IHA and, therefore, no modifications to the Level A and 
Level B harassment zones are needed. The addition of pile driving 
activity associated with the temporary piles is expected to extend the 
total project duration. However, NMFS has preliminarily determined that 
the amount of take authorized through the initial IHA remains 
sufficient to cover the likely effects of the planned activity, and no 
changes to authorized take numbers are proposed.
    The proposed renewal would be effective for a period not exceeding 
1-year from the date of expiration of the initial IHA.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Notices of the Proposed and Final IHAs for the original authorization. 
NMFS has reviewed the recent draft Stock Assessment Reports, 
information on relevant Unusual Mortality Events, and other scientific 
literature, and determined that neither this nor any other new 
information affects which species or stocks have the potential to be 
affected or the pertinent information in the Description of the Marine 
Mammals in the Area of Specified Activities contained in the

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supporting documents for the original IHA.
    It should be noted that the Final 2021 NMFS' Marine Mammal Stock 
Assessment Reports (SARs) updated stock abundances for short-beaked 
common dolphins and long-beaked common dolphins (Carretta et al., 
2022). For short-beaked common dolphins the abundance increased 
slightly from the original IHA stock abundance estimate of 969,861 
individuals to 1,056,308 individuals. For long-beaked common dolphins 
the abundance decreased from the initial IHA stock abundance estimate 
of 101,305 individuals to 83,379 individuals. None of these population 
trends impact the findings made in support of the original IHA. 
Additional information on all stocks affected by this action is 
available in the NMFS' U.S. Pacific SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which the 
authorization of take is proposed here may be found in the Notices of 
the Proposed and Final IHAs for the initial authorization. NMFS has 
reviewed recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects our 
initial analysis of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Notices of the 
Proposed and Final IHAs for the original authorization. Specifically, 
the source levels and marine mammal density/occurrence data applicable 
to this authorization remain unchanged from the previously issued IHA. 
Similarly, the stocks taken, methods of take, and types of take remain 
unchanged from the previously issued IHA, as do the number of takes, 
which are indicated below in Table 1.

    Table 1--Estimated Take by Level A and Level B Harassment, by Species and Stock, Resulting From Proposed
                                           Carnival Project Activities
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                                                                                                Proposed take as
             Common name                       Stock            Level A take   Total proposed    Percentage of
                                                                                    take             stock
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Short-beaked common dolphin.........  CA/OR/WA...............               0             942               0.10
Long-beaked common dolphin..........  California.............               0             942               0.92
Common bottlenose dolphin...........  Coastal California.....               0             122              26.93
California sea lion.................  U.S....................               0           2,232               0.87
Harbor seal.........................  California.............               5             984               3.18
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Federal Register notice announcing the issuance of the 
original IHA, and the discussion of the least practicable adverse 
impact included in that document and the notice of the proposed IHA 
remains accurate. The following standard mitigation measures are 
proposed for this renewal.
     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 in-water heavy machinery work other than pile driving 
(e.g., standard barges, etc.), 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. This 
type of work could include the following activities: (1) movement of 
the barge to the pile location; or (2) positioning of the pile on the 
substrate via a crane (i.e., stabbing the pile);
     Work may only occur during daylight hours, when visual 
monitoring of marine mammals can be conducted;
     For those marine mammals for which Level B harassment take 
has not been requested, in-water pile driving would shut down 
immediately if such species are observed within or entering the 
monitoring zone (i.e., Level B harassment zone); and,
     If take reaches the authorized limit for an authorized 
species, pile installation would be stopped as these species approach 
the Level B harassment zone to avoid additional take.
    Additional mitigation measures proposed for this renewal are as 
follows.
     Shutdown zones as specified in the proposed IHA vibratory 
pile driving would be implemented.
     The use of seven protected species observers (PSO) that 
would be placed on vessels at entrances to the Port of Long Beach 
outside the breakwaters to observe marine mammals traveling into the 
shutdown zones.
     Soft start procedures for impact pile driving consisting 
of an initial set of strikes from the hammer at reduced energy, with 
each strike followed by a 30-second waiting period.
     The use of a marine pile-driving energy attenuator (i.e., 
air bubble curtain system) would be implemented by Carnival during 
impact and vibratory pile driving of all steel pipe piles.
     Prior to the start of daily in-water construction 
activity, or whenever a break in pile driving of 30 minutes or longer 
occurs, PSOs would observe the shutdown and monitoring zones for a 
period of 30 minutes.
     Carnival would only conduct pile driving activities during 
daylight hours.
    Monitoring and reporting requirements associated with this renewal 
are as follows.
     A total of seven PSOs will be based on land and vessels 
would monitor pile driving 30 minutes before, during, and 30 minutes 
after pile driving activities.
     Observers would be required to use approved data forms.
     A draft report would be submitted to NMFS within 90 days 
of the completion of marine mammal monitoring. The report would include 
marine mammal observations pre-activity, during-activity, and post-
activity during pile driving days (and associated PSO data sheets).

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (84 
FR 54867, October 11, 2019) and solicited

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public comments on both our proposal to issue the initial IHA for pile 
driving for the Long Beach Cruise Terminal Improvement Project and on 
the potential for a renewal IHA, should certain requirements be met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (84 FR 64833, November 25, 2019). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
renewal of the 2019 IHA.
    Comment: The Marine Mammal Commission (Commission) recommended that 
NMFS refrain from using the proposed renewal process for Carnival's 
authorization. If NMFS elects to use the renewal process frequently or 
for authorizations that require a more complex review or for which much 
new information has been generated, the Commission recommended that 
NMFS provide the Commission and other reviewers the full 30-day comment 
period as set forth in section 101(a)(5)(D)(iii) of the MMPA.
    Response: We appreciate the Commission's input and direct the 
reader to a response to a similar comment, which can be found at 84 FR 
52464 (October 2, 2019).
    This renewal request does not present any new information not 
considered by NMFS during our review. The installation and removal of 
30 temporary 24-inch steel piles does not change the analysis in the 
initial IHA. Therefore, abbreviated additional comment period is 
sufficient for consideration of this renewal request.

Preliminary Determinations

    The construction activities are nearly identical to those analyzed 
for the original IHA, as are the method of taking and the effects of 
the action. The addition of the 30 temporary 24-inch steel piles does 
not increase the size of the Level A and Level B harassment zones. In 
analyzing the effects of the activities for the original IHA, NMFS 
determined that the Carnival's activities would have a negligible 
impact on the affected species or stocks and that the authorized take 
numbers of each species or stock were small relative to the relevant 
stocks (e.g., less than one-third of the abundance of all stocks). 
Although some marine mammal abundances have changed since the original 
IHA, none of this new information affects NMFS' determinations 
supporting issuance of the original and initial IHAs. The mitigation 
measures and monitoring and reporting requirements as described above 
are identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the original IHA. This includes consideration of the 
estimated abundance of short-beaked common dolphins and long-beaked 
common dolphins decreasing/increasing slightly. Based on the 
information and analysis 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; (4) Carnival'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, and; (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act

    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.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to Carnival for conducting pile driving for the 
Long Beach Cruise Terminal improvement project, Long Beach, California, 
effective through December 9, 2023, provided the previously described 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed and final initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the 
proposed renewal IHA, and any other aspect of this notice. Please 
include with your comments any supporting data or literature citations 
to help inform our final decision on the request for MMPA 
authorization.

    Dated: December 23, 2022.
Catherine G. Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-28382 Filed 12-28-22; 8:45 am]
BILLING CODE 3510-22-P