[Federal Register Volume 88, Number 112 (Monday, June 12, 2023)]
[Notices]
[Pages 38035-38037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12387]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC994]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Army Corps of Engineers Debris Dock 
Replacement Project, Sausalito, California

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

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 (ACOE) to change the effective dates of the second re-
issuance of a previously issued incidental harassment authorization 
(IHA), with the only change being the effective dates. The IHA 
authorizes take of seven species of marine mammals, by Level A and 
Level B harassment, incidental to construction associated with the 
Debris Dock Replacement Project in Sausalito, California. The ACOE has 
requested re-issuance with new effective dates of July 15, 2023 through 
July 14, 2024. 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 an identical 
IHA to cover the incidental take analyzed and authorized in the initial 
IHA.

DATES: This authorization is effective from July 15, 2023 through July 
14, 2024.

ADDRESSES: An electronic copy of the final 2021 IHA previously issued 
to the ACOE, the ACOE's application, and the Federal Register notices 
proposing and issuing the initial IHA may be obtained by visiting /
www.fisheries.noaa.gov/action/incidental-take-authorization-army-corps-
engineers-debris-dock-

[[Page 38036]]

replacement-project-sausalito. In case of problems accessing these 
documents, please call the contact listed below (see FOR FURTHER 
INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Jessica Taylor, 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 July 14, 2021, NMFS published final notice of our issuance of an 
IHA authorizing take of marine mammals incidental to the Debris Dock 
Replacement project (86 FR 37124). The effective dates of that IHA were 
September 1, 2021, through August 31, 2022. On December 14, 2021, the 
ACOE informed NMFS that the project was delayed. None of the work 
identified in the initial IHA application (e.g., pile driving and 
removal) had occurred. The ACOE submitted a request that we reissue an 
identical IHA that would be effective from January 5, 2022 through 
January 4, 2023, in order to conduct the construction work that was 
analyzed in support of the previously issued IHA. An identical IHA was 
reissued on December 27, 2021 (86 FR 73261). However, the project 
remains delayed and no work has been conducted. On December 6, 2022, 
the ACOE informed NMFS that, due to a project delay, none of the work 
identified in the original IHA (e.g., pile driving and removal) has 
been conducted. The ACOE submitted a request that we reissue another 
IHA identical to the IHA issued July 14, 2021. The IHA was reissued on 
March 17, 2023 (88 FR 16412) with effective dates of January 1, 2024 
through December 31, 2024. On May 2, 2023, the ACOE requested that the 
dates of the reissued IHA be updated to be effective from July 15, 2023 
through July 14, 2024. As the project activities, anticipated effects, 
and required mitigation, monitoring, and reporting remain the same, 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 ACOE's construction project is to replace the 
existing decaying dock and other onshore infrastructure used to move 
marine debris collected from San Francisco Bay onto land for disposal. 
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 harbor porpoise (Phocoena phocoena), harbor seal (Phoca 
vitulina), gray whale (Eschrichtius robustus), bottlenose dolphin 
(Tursiops truncatus), California sea lion (Zalophus californianus), 
northern fur seal (Callorhinus ursinus), and northern elephant seal 
(Mirounga angustirostris). A description of the methods and inputs used 
to estimate take anticipated to occur and, ultimately, the take that 
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 previously issued IHA, 
which include the Federal Register notice of the issuance of the 
initial 2021 IHA for the ACOE's construction work (86 FR 37124), the 
ACOE's application, the Federal Register notice of the proposed IHA (86 
FR 28768), and all associated references and documents.

Determinations

    The ACOE will conduct activities as analyzed in support of the 
initial 2021 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 2023 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 ACOE'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 (NEPA)

    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do

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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 determined that the application of this 
categorical exclusion remains appropriate for this reissued IHA.

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 ACOE for in-water construction 
activities associated with the specified activity from July 15, 2023 
through July 14, 2024. All previously described mitigation, monitoring, 
and reporting requirements from the initial 2021 IHA are incorporated.

    Dated: June 6, 2023.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2023-12387 Filed 6-9-23; 8:45 am]
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