[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Notices]
[Pages 41920-41928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13751]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD056]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael 
Bridge Restoration Project

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

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

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SUMMARY: NMFS has received a request from the California Department of 
Transportation (Caltrans) for authorization to take marine mammals 
incidental to Phase II of the Richmond-San Rafael Bridge Restoration 
Project in Richmond, CA. Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (IHA) to incidentally take marine 
mammals during the specified activities. NMFS is also requesting 
comments on a possible one-time, 1-year renewal that could be issued 
under certain circumstances and if all requirements are met, as 
described in Request for Public Comments at the end of this notice. 
NMFS will consider public comments prior to making any final decision 
on the issuance of the requested MMPA authorization and agency 
responses will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than July 28, 
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. All comments received are a part of 
the public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities 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.
    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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call 
the contact listed below.

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

SUPPLEMENTARY INFORMATION: 

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 proposed or, if the taking is limited to harassment, a notice of a 
proposed IHA is 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.

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., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs 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 has 
preliminarily determined that the issuance of the proposed IHA 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On December 28, 2022, NMFS received a request from Caltrans for an 
IHA to take marine mammals incidental to construction activities to 
restore portions of the Richmond-San Rafael Bridge. Following NMFS' 
review of the application, Caltrans submitted a revised version on 
April 14, 2023, which was deemed adequate and

[[Page 41921]]

complete on May 11, 2023. Caltrans' request is for take of harbor seals 
(Phoca vitulina) by Level B harassment only. Neither Caltrans nor NMFS 
expect serious injury or mortality to result from this activity and, 
therefore, an IHA is appropriate.

Description of Proposed Activity

Overview

    Caltrans would conduct construction activities to restore a portion 
of the Richmond-San Rafael Bridge. Prior to restoration work Caltrans 
would install a debris containment system to ensure contaminants from 
construction are not deposited into San Francisco Bay. During the 
deployment and retrieval of the containment system disturbance (i.e., 
Level B harassment) of harbor seals may occur. Once the debris 
containment system is deployed the restoration work on the bridge is 
not expected to result in any takes of marine mammals, as the 
containment system is expected to shield seals from disturbance as a 
result of visual and acoustic stimuli. Takes of harbor seals would 
occur at the nearby Castro Rocks haulout. The Richmond-San Rafael 
Bridge is located in the northern portion of San Francisco Bay and is 
located between Richmond, CA and San Rafael, CA. The debris containment 
system would be used on Piers 52-57 and the proposed action area is 
approximately 3.5 square miles (9.2 square kilometers). Work on the 
bridge would be conducted throughout the year once the debris 
containment system is in place. The deployment and retrieval of the 
containment system would only occur during between August 1 and March 
30 to avoid pupping and molting seasons of harbor seals.

Dates and Duration

    The proposed IHA would be effective from August 1, 2023 to March 
30, 2024. It is expected that the debris containment system would take 
up to 20 days to deploy and 10 days to remove (30 total days). The 
debris containment system would only be deployed during daylight hours 
but restoration work would occur throughout the day and night following 
deployment.

Specific Geographic Region

    Located in the northern reaches of San Francisco Bay, the eastern 
portion of Richmond-San Rafael Bridge is surrounded by the industrial 
complex of the Chevron Richmond Refinery. Castro Rocks is an important 
haulout location for harbor seals in San Francisco Bay. The nearest 
outcropping of Castro Rocks, where harbor seals are known to haulout, 
is located approximately 21.3 meters (m) from Pier 55, and the farthest 
outcropping is located approximately 145 m from Pier 52.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN28JN23.000

BILLING CODE 3510-22-C

[[Page 41922]]

Detailed Description of the Specified Activity

    The restoration improvements to the Richmond-San Rafael Bridge 
include sandblasting, cleaning, and painting of the upper and lower 
deck and repair of the road deck and expansion joints on the lower 
deck. To remove the existing paint from the bridge sandblasting and 
rotary sanding would be completed using compressed air and power 
sanders. Primer and paint would then be applied using a pneumatic paint 
sprayer. All of the paint removal and painting work would rely on a 
generator and an air compressor from a barge on the north side of the 
bridge.
    Localized spalled road deck concrete would be repaired and damaged 
concrete will be removed using pneumatic air chisels. All exposed rebar 
would be sandblasted prior to placement of new structural concrete in 
the spalled area. Bridge joints would be replaced on the lower deck of 
the bridge. Replacement of the bridge joints would involve concrete 
saws to remove the old joint.
    All of these activities have the potential to emit sound in the 
vicinity of Castro Rocks. Although sound would be produced by the 
construction activities, the deployment of a debris containment system 
would attenuate the sound and block any visual disturbance from 
reaching Castro Rocks. All construction activities would be conducted 
within the debris containment system. As such, the deployment and 
removal of the debris containment system is expected to be the only 
activity that would result in takes of harbor seals hauled out at 
Castro Rocks. The visibility of workers in the project area during the 
installation and removal of the debris containment system would likely 
cause behavioral reactions such as flushing from the haul-out, not 
hauling out, head alerts, or moving farther from the disturbance to 
forage.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

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. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions in materials that are referenced in the document, 
instead of reprinting the information. Additional information regarding 
population trends and threats may be found in NMFS' Stock Assessment 
Reports (SARs; 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' website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
proposed to be authorized for this activity, 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. 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' 
SARs). While no serious injury or mortality is anticipated or proposed 
to be authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species or stocks 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 
comprises that stock. All managed stocks in this region are assessed in 
NMFS' Pacific SARs, and NMFS has reviewed the most current information 
for the species. All values presented in Table 1 are the most recent 
available at the time of publication and are available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                              Table 1--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        ESA/ MMPA  status;   Stock abundance  (CV,
             Common name                  Scientific name               Stock            strategic  (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    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.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum
  estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury 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.

    As indicated above, harbor seals temporally and spatially co-occur 
with the activity to the degree that take is reasonably likely to 
occur. While California sea lions, Steller sea lions, northern elephant 
seals, northern fur seals, harbor porpoise, bottlenose dolphins, gray 
whales, and humpback whales have been documented in the area, the 
temporal and/or 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. For pinnipeds in the aforementioned list, 
there are no other documented haulouts close to the project area. Since 
no in-water work is proposed there would be no effects on these species 
potentially present in the water during this work. For the cetacean 
species listed above, no take is expected for those species due to the 
lack of in-water work planned for this project.

[[Page 41923]]

Harbor Seal

    Pacific harbor seals are distributed from Baja California north to 
the Aleutian Islands of Alaska. Seals primarily haulout on remote 
mainland and island beaches, reefs, and estuary areas. At haulouts, 
they will congregate to rest, socialize, breed, and molt. Haulouts are 
relatively consistent from year to year (Kopec and Harvey, 1995), and 
females have been documented to return to their own natal haulout when 
breeding (Green et al., 2006).
    The Pacific harbor seal population experienced an increase from 
1981-2004, followed by a steady decrease from between 2005-2010. The 
maximum statewide count showed that the California stock sharply 
declined in 2009 and 2012 (Duncan 2019). Caltrans conducted extensive 
marine mammal surveys in San Francisco Bay before and during seismic 
retrofit on the Richmond-San Rafael Bridge from 1998-2002. Caltrans 
determined that a minimum of 500 harbor seals occur within San 
Francisco Bay (Green et al., 2002), an estimate that agrees with more 
recent seal counts (Lowry et al., 2008; Codde et al., 2020). The 
California harbor seal stock may be stabilizing at or near carrying 
capacity, although conservation concerns such as vessel strikes, 
disturbance, fishing gear entanglement, and habitat loss are still a 
concern in the San Francisco Bay area (Duncan 2019).
    The nearest major haulout site to the project area is Castro Rocks, 
located approximately 21.3 meters from Pier 55 of the bridge, and the 
farthest outcropping is located approximately 145 meters from Pier 52 
of the bridge. Use of Castro Rocks as a haulout site has been 
increasing over the years (Codde et al., 2020). Given the close 
proximity of Castro Rocks to the project area it is likely seals would 
be present on the rocks during construction. There are also smaller 
numbers of harbor seals have also been reported to haulout on the 
western Brother Island, approximately 3.35 kilometers to the north of 
the bridge.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
The Estimated Take of Marine Mammals section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take of Marine Mammals section, and the Proposed Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and whether those impacts are reasonably expected to, or reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.
    The visual stimuli generated by the deployment and removal of the 
debris containment system has the potential to cause Level B harassment 
of pinnipeds hauled out at Castro Rocks. This section includes a 
summary and discussion of the ways that the types of stressors 
associated with the specified activity (personnel presence while 
assembling the containment system) have been observed to impact marine 
mammals.
    The appearance of personnel may have the potential to cause Level B 
harassment of any harbor seals hauled out at Castro Rocks during the 
time of installation or removal of the debris containment system. 
Disturbance may result in reactions from harbor seals ranging from 
becoming alert to the presence of personnel (e.g., turning the head, 
assuming a more upright posture) to flushing from the haulout site into 
the water or not hauling out at all. NMFS does not consider the lesser 
reactions to constitute behavioral harassment, or takes by Level B 
harassment. NMFS rather assumes that harbor seals that flee some 
distance or change the speed or direction of their movement in response 
to the presence of personnel are behaviorally harassed, and thus 
subject to take by Level B harassment. Animals that respond to the 
presence of workers by becoming alert, but do not move or change the 
nature of locomotion as described, are not considered to have been 
subject to behavioral harassment.
    There are other ways in which disturbance, as described previously, 
could result in more than Level B harassment of marine mammals. They 
are most likely to be consequences of stampeding, a potentially 
dangerous occurrence in which large numbers of animals succumb to mass 
panic and rush away from a stimulus. However, NMFS does not expect this 
to occur at the project area. Caltrans will take precautions, such as 
establishment of a non-disturbance buffer within 400 feet (121 meters) 
of Castro Rocks on the south side of bridge, steering watercraft so as 
not to approach marine mammal haulout sites, and a requirement that 
watercraft maintain a slow steady speed when passing by Castro Rocks. 
Furthermore, the debris containment system would be installed outside 
of the pupping and molting season to ensure no impacts to pups at 
Castro Rocks.
    Monitoring efforts from a 2001 seismic retrofit project at the same 
site found that on average there were 0.16 construction related 
disturbance events (flushes) per hour of field time caused by 
construction related disturbances during daytime monitoring at Castro 
Rocks (Green et al., 2004). Construction-related disturbances at Castro 
Rocks consisted of two main factors: watercraft in the area of the 
haulout site and construction activities including jackhammering, rivet 
work, and the movement of cranes on barges near the haulout site (Green 
et al., 2004). Construction noise and activity from this project are 
considerably less than the seismic retrofit project due to the lack of 
jackhammering, rivet work and construction activities at water level. 
Once the scaffolding and debris containment system is installed on the 
lower bridge deck, the work area will be screened, and take by Level B 
harassment due to ongoing construction activities inside the 
containment system is not anticipated.
    Given the nature of the proposed activities (i.e., installation and 
removal of the debris containment system) in conjunction with proposed 
mitigation measures, NMFS is confident that any anticipated effects 
would be in the form of behavioral disturbance only. NMFS considers the 
risk of injury, serious injury, or mortality to marine mammals to be 
extremely unlikely.
    There are no habitat modifications associated with the proposed 
activity. The debris containment system, construction waste, or 
watercraft (including barges) would not make contact with Castro Rocks. 
Thus, NMFS does not expect that the proposed activity would have any 
effects on marine mammal habitat and NMFS expects that there will be no 
long- or short-term physical impacts to pinniped habitat on Castro 
Rocks.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers,'' and the negligible impact 
determinations.
    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

[[Page 41924]]

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 for individual marine mammals 
resulting from exposure to the novel stimulus of the installation and 
removal of the debris containment system. Based on the nature of the 
activity, Level A harassment is neither anticipated nor proposed to be 
authorized.
    As described previously, no serious injury or mortality is 
anticipated or proposed to be authorized for this activity. Below, we 
describe how the proposed take numbers are estimated.

Marine Mammal Occurrence and Take Estimates

    In this section, we provide information about the occurrence of 
marine mammals, including density or other relevant information, which 
will inform the take calculations. We will also describe how this 
information is brought together to produce a quantitative take estimate 
for each species.
    Castro Rocks is the largest harbor seal haulout site in northern 
San Francisco Bay and is the second largest pupping site in San 
Francisco Bay (Kopec and Harvey 1995). The harbor seal pupping season 
is from April to July in San Francisco Bay. Seals are present on the 
haulout year round during medium to low tides (Green et al., 2004). 
Recent observations at the Castro Rocks haulout site reported 
approximately 300 seals during the pupping and molting seasons (Codde 
and Allen, 2020). The highest mean number of harbor seals observed at 
Castro Rocks during recent annual National Park Service surveys was 237 
seals observed in 2019 (Codde and Allen, 2013, 2015, 2017, 2020; Codde 
2020).
    Caltrans expects to harass approximately 300 harbor seals per day 
during the instillation and removal of the debris containment system. 
It is expected to take 30 days for Caltrans to complete this process. 
Based on these assumptions Caltrans requested authorization of 9,000 
takes by Level B harassment of harbor seals while hauled out. NMFS 
concurs with this request.

Proposed Mitigation

    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, NMFS 
considers 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, and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    Caltrans proposes to implement the following measures during Phase 
II of the Richmond-San Rafael Bridge Restoration Project:
    (1) Seasonal Work Restrictions: installation or removal of the 
debris containment system must not occur between Piers 52-57 from April 
1-July 31 due to the pupping and molting period of harbor seals.
    (2) Work must not take place outside of the containment system on 
the bridge between Piers 52-57 from April 1 to July 31.
    (3) A non-disturbance buffer will be established within 400 feet 
(121 meters) of Castro Rocks on the south side of bridge.
    (4) Staging of barges will not be allowed in the project area.
    (5) Routes for watercraft to reach work locations would be 
predetermined in consultation with the project biologist to avoid 
harassment or take of marine mammals hauled out at Castro Rocks.
    (6) No piles may be driven or vibrated to create staging locations 
for any watercraft. Barges and vessels would be tethered to the 
existing concrete bridge piers.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed mitigation measures 
provide the means of 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.

Proposed 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 while 
conducting the activities. 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 activity; 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;

[[Page 41925]]

     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); and,
     Mitigation and monitoring effectiveness.
    Caltrans will monitor to collect data on marine mammal behavior, 
counts of the individuals observed, and the frequency of the 
observations. Caltrans will collect sighting data and observations on 
behavioral responses to construction for marine mammal species observed 
in the region of activity during the period of construction. All 
observers will be trained in the identification of marine mammals and 
marine mammal behaviors.
     Protected species observers (PSOs) must be independent 
observers (i.e., not construction personnel). All PSOs must have the 
ability to conduct field observations and collect data according to 
assigned protocols, be experienced in field identification of marine 
mammals and their behaviors. Caltrans must submit their resumes to NMFS 
for approval;
     Biological monitoring must occur 5 days prior to the 
Project's start date, to establish baseline observations.
     Observation periods will encompass different tide levels 
and hours of the day. Monitoring of marine mammals around the 
construction site will be conducted using binoculars as necessary.
     The proposed location of the PSOs will be at a monitoring 
platform positioned on Pier 55 of the Richmond-San Rafael Bridge, at 
the closest pier of the Richmond-San Rafael Bridge to Castro Rocks. 
Pier 55 is approximately 21 meters from the nearest rock at Castro 
Rocks harbor seal colony.

Data Collection

    Caltrans will record detailed information about counts and 
behaviors of all marine mammal species observed, times of observations, 
construction activities that occurred, any visual disturbances, and 
weather conditions, with particular focus on harbor seals at Castro 
Rocks. PSOs will use approved data forms to record the following 
information:
     Observation position and start and end times of 
observations;
     Weather conditions (sunny/cloudy, wind speed, fog, 
visibility), temperature, tide level, current, and sea state;
     Species counts (including with or without pup, and, if 
possible, sex and age classes of any observed marine mammal species;
     Identifying marks or color (scars, red pelage, etc.);
     Position relative to Richmond-San Rafael bridge (distance 
and direction);
     Movement (direction and relative speed);
     Behavior (logging (resting at the surface), swimming, 
spyhopping (raising above the water surface to view the area), 
foraging, etc.);
     Duration of sighting or times of multiple sightings of the 
same individual; and
     Details of any marine mammal behavioral disturbances, 
including information regarding the activity (e.g. disturbance from the 
containment system installation and removal or construction related 
disturbance within or outside the containment system), the type of 
behavioral response to the disturbance (flushing or head posturing), 
and the rate of disturbance on Castro Rocks. Disturbance events must be 
categorized according to the 3-point scale as shown in Table 2.

           Table 2--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
          Level               Type of response           Definition
------------------------------------------------------------------------
1.......................  Alert..................  Seal head orientation
                                                    or brief movement in
                                                    response to
                                                    disturbance, which
                                                    may include turning
                                                    head towards the
                                                    disturbance, craning
                                                    head and neck while
                                                    holding the body
                                                    rigid in a u-shaped
                                                    position, changing
                                                    from a lying to a
                                                    sitting position, or
                                                    brief movement of
                                                    less than twice the
                                                    animal's body
                                                    length.
2 *.....................  Movement...............  Movements in response
                                                    to the source of
                                                    disturbance, ranging
                                                    from short
                                                    withdrawals at least
                                                    twice the animal's
                                                    body length to
                                                    longer retreats over
                                                    the beach, or if
                                                    already moving a
                                                    change of direction
                                                    of greater than 90
                                                    degrees.
3 *.....................  Flush..................  All retreats
                                                    (flushes) to the
                                                    water.
------------------------------------------------------------------------
* Only observations of disturbance Levels 2 and 3 are recorded as takes.

Reporting Measures

    Caltrans shall submit a draft report to NMFS within 90 days of the 
completion of marine mammal monitoring, or 60 days prior to the 
issuance of any subsequent IHA for this project (if required), 
whichever comes first. The annual report would detail the monitoring 
protocol, summarize the data recorded during monitoring, and estimate 
the number of marine mammals that may have been harassed. If no 
comments are received from NMFS within 30 days, the draft final report 
will become final. If comments are received, a final report must be 
submitted up to 30 days after receipt of comments. All PSO datasheets 
and/or raw sighting data must be submitted with the draft marine mammal 
report.
    Reports shall contain the following information:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period including: (a) what type of restoration work is 
being completed, and (b) the total duration of work completed;
     PSO locations during monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including sea state and any other relevant weather 
conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    Upon observation of a marine mammal, the following information must 
be reported:
     Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
     Time of sighting;
     Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), and PSO confidence 
in identification;
     Distance and location of each observed marine mammal 
relative to the bridge restoration work;
     Estimated number of animals by species (min/max/best 
estimate);
     Estimated number of animals by cohort (adults, pups, and 
group composition, etc.);

[[Page 41926]]

     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such 
flushing or head posturing); and
     Detailed information about implementation of any 
mitigation measures, a description of specified actions that ensured, 
and resulting changes in behavior of the animal(s), if any.

Reporting Injured or Dead Marine Mammals

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury (Level A harassment), serious injury or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
Caltrans would immediately cease the specified activities and 
immediately report the incident to the Office of Protected Resources 
([email protected]) and the West Coast Regional 
Stranding Coordinator. The report would include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved (if applicable);
     Vessel's speed during and leading up to the incident (if 
applicable);
     Description of the incident;
     Status of all sound source used in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Caltrans to 
determine necessary actions to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Caltrans would not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that Caltrans discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
Caltrans would immediately report the incident to the Office of 
Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator. The report would include the same information identified 
in the section above. Activities would be able to continue while NMFS 
reviews the circumstances of the incident. NMFS would work with 
Caltrans to determine whether modifications in the activities are 
appropriate.
    In the event that Caltrans discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Caltrans would report the incident 
to Office of Protected Resources, NMFS, and West Coast Regional 
Stranding Coordinator, within 24 hours of the discovery. Caltrans would 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network. Construction activities would be permitted to 
continue.

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 impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), 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' 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 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).
    NMFS does not expect Caltrans' construction activities to cause 
long-term behavioral disturbance that would negatively impact an 
individual animal's fitness, or result in injury, serious injury, or 
mortality. Although the installation and deployment of the debris 
containment system may disturb harbor seals hauled out at Castro Rocks, 
NMFS expects those impacts to be of short duration (20 days for 
installation and 10 day for removal) with minimal effect to the 
animals. Minor and brief responses including short-duration startle 
reactions, are not likely to constitute disruption of behavioral 
patterns, such as migration, nursing, breeding, feeding, or sheltering.
    The harbor seal stock for which incidental take authorization is 
proposed is not listed as threatened or endangered under the ESA or 
determined to be strategic or depleted under the MMPA. The proposed 
mitigation and monitoring measures, including the establishment of 
seasonal work schedules, a non-disturbance buffer around Castro Rocks, 
and watercraft routes, would minimize disturbance of seals on Castro 
Rocks and make Level A harassment unlikely. Therefore, the proposed 
mitigation and monitoring measures are expected to eliminate the 
potential for Level A harassment as well as reduce the amount and 
intensity for Level B harassment. The construction activities analyzed 
here are similar to, or less impactful than, numerous construction 
activities conducted in other similar locations which have occurred 
with no reported injuries or mortality to marine mammals, and no known 
long-term adverse consequences from behavioral harassment.
    Anticipated and authorized takes are expected to be limited to 
short-term Level B harassment (behavioral disturbance) as construction 
activities will occur over the course of 30 days. Effects on 
individuals taken by Level B harassment, based upon reports in the 
literature as well as monitoring from other similar activities, may 
include increased swimming speeds, increased surfacing time, or 
decreased foraging (e.g., Thorson and Reyff 2006). Individual animals, 
even if taken multiple times, would likely move away from the visual 
disturbance of the debris containment system installation and

[[Page 41927]]

removal. Repeated exposures of individuals to this visual disturbance 
that could cause Level B harassment are unlikely to considerably 
disrupt foraging behavior or result in significant decrease in fitness, 
reproduction, or survival for the affected individuals. In all, there 
would be no adverse impacts to the stock as a whole.
    There is no unusual mortality event (UME) currently associated with 
the harbor seal stock and there are no Biologically Important Areas or 
known important habitat, aside from Castro Rocks itself, within the 
project area. While essential fish habitat (EFH) for several fish 
species does exist in the proposed project area, the proposed 
activities would not modify existing marine mammal habitat since there 
is no in-water work. This construction activity should not impact 
marine mammals' foraging opportunities.
    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 any of the species 
or stocks through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     Anticipated impacts of Level B harassment include 
temporary behavior modifications;
     Short duration and intermittent nature of the debris 
containment system deployment and removal;
     The specified project area is very small relative to the 
overall habitat ranges of the species and do not include habitat areas 
of special significance (Biologically Important Areas);
     The lack of anticipated significant or long-term effects 
to marine mammal habitat;
     The presumed efficacy of the mitigation measures in 
reducing the effects of the specified activity; and,
     Monitoring reports from other construction work in San 
Francisco Bay have documented little to no effect on individuals of the 
same species impacted by the specified activities.
    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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
the affected marine mammal stock.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
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 and 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. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    The amount of take NMFS proposes to authorize in this IHA is below 
one-third of the estimated stock abundance for harbor seals (see 
Estimated Take of Marine Mammals). The take percentage of the estimated 
stock of harbor seals, if all estimated take events are assumed to 
occur to new individuals, would be 29.1 percent. However, this take 
estimate is assumed to represent repeated takes of the same individuals 
over time and, therefore, the take estimate represents a significantly 
smaller actual percentage of the total stock. It is expected that 
approximately 300 harbor seals are hauled out on Castro Rocks on any 
given day during the project. The majority of these 300 individuals are 
expected to be comprised of the same animals during the duration of the 
project. Therefore, it can be reasonably expected that the percentage 
of individuals of the overall stock of harbor seals is closer to 
approximately 1 percent.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

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 would 
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 proposed for 
authorization 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 Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Caltrans for conducting Phase II of the Richmond-San 
Rafael Bridge Restoration Project in Richmond, CA from August 1, 2023 
to March 30, 2024, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated. A draft of the 
proposed IHA can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA for the proposed Phase 
II of the Richmond-San Rafael Bridge Restoration Project. We also 
request comment on the potential renewal of this proposed IHA as 
described in the paragraph below. Please include with your comments any 
supporting data or literature citations to help inform decisions on the 
request for this IHA or a subsequent renewal IHA.
    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 Description of Proposed 
Activity section of this notice is planned or (2) the activities as 
described in the Description of Proposed Activity section of this 
notice would not be completed by the time the IHA expires and a renewal 
would allow for completion of the activities beyond that described in 
the Dates and Duration section of this notice, provided all of the 
following conditions are met:

[[Page 41928]]

     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).
     The request for renewal must include the following:
    (1) 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).
    (2) 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.
    Upon review of the request for renewal, the status of the affected 
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.

    Dated: June 23, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-13751 Filed 6-27-23; 8:45 am]
BILLING CODE 3510-22-P