[Federal Register Volume 88, Number 210 (Wednesday, November 1, 2023)]
[Notices]
[Pages 74979-74981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24105]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD486]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Tillamook South Jetty Repairs in 
Tillamook Bay, Oregon

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

ACTION: Notice; issuance of incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: NMFS has received a request from the U.S. Army Corps of 
Engineers (USACE), Portland District (Corps), for the re-issuance of a 
previously issued incidental harassment authorization (IHA) with the 
only change being to the effective dates. The initial IHA authorized 
take of five species of marine mammals, by Level A and Level B 
harassment, incidental to construction associated with the Tillamook 
South Jetty Repairs in Tillamook Bay, Oregon. The project has been 
delayed and none of the work covered in the initial IHA has been 
conducted. The scope of the activities and anticipated effects remain 
the same, authorized take numbers are not changed, and the required 
mitigation, monitoring, and reporting remains the same as included in 
the initial IHA. NMFS is, therefore, issuing a second identical IHA to 
cover the incidental take analyzed and authorized in the initial IHA.

DATES: This authorization is effective from November 1, 2023, through 
October 31, 2024.

ADDRESSES: An electronic copy of the final 2022 IHA previously issued 
to the Corps, the Corps' application, and the Federal Register notices 
proposing and issuing the initial IHA may be obtained by visiting 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-army-corps-engineers-tillamook-south-jetty-repairs. In case of problems 
accessing these documents, please call the contact listed below (see 
FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, 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

[[Page 74980]]

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 August 18, 2022, NMFS published final notice of our issuance of 
an IHA authorizing take of marine mammals incidental to the Tillamook 
South Jetty Repairs Project (87 FR 50836). The effective dates of that 
IHA were November 1, 2022, through October 31, 2023. On October 16, 
2023, the Corps informed NMFS that the project was delayed. None of the 
work identified in the initial IHA (e.g., pile driving) has occurred. 
The Corps submitted a request that we reissue an identical IHA that 
would be effective from November 1, 2023, through October 31, 2024, in 
order to conduct the construction work that was analyzed and authorized 
through the previously issued IHA. Therefore, re-issuance of the IHA is 
appropriate.

Summary of Specified Activity and Anticipated Impacts

    The planned activities (including mitigation, monitoring, and 
reporting), authorized incidental take, and anticipated impacts on the 
affected stocks are the same as those analyzed and authorized through 
the previously issued IHA.
    The Corps constructed, and continues to maintain, two jetties at 
the entrance of Tillamook Bay, Oregon to provide reliable navigation 
into and out of the bay. A Major Maintenance Report (MMR) was completed 
in 2003 to evaluate wave damage to the jetties and provide design for 
necessary repairs. Some repairs to the North Jetty were completed in 
2010, and further repairs to the North Jetty root and trunk began in 
January 2022. The Tillamook South Jetty Repairs Project (i.e., the 
``proposed activities'') would complete critical repairs to the South 
Jetty, as described in the MMR, with a focus on rebuilding the South 
Jetty head. Work would consist of repairs to the existing structures 
within the original jetty footprints (i.e., trunk repairs and the 
construction of a 100-foot cap to repair the South Jetty Head), with 
options to facilitate land- and water-based stone transport, storage, 
and placement operations. 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), California sea lion 
(Zalophus californianus), Steller sea lion (Eumetopias jubatus), harbor 
seal (Phoca vitulina), 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 2022 IHA for the Corps' construction work (87 FR 50836), the 
Corps' application, the Federal Register notice of the proposed IHA (87 
FR 38116), and all associated references and documents.

Determinations

    The Corps will conduct activities as analyzed in the initial 2022 
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 Corps' 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes as no relevant subsistence uses of marine mammals 
are implicated by this action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action with respect to environmental 
consequences on the human environment.
    This action is consistent with categories of activities identified 
in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that categorical exclusion from further NEPA review remains appropriate 
for reissuance of this 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. 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 Corps for in-water construction 
activities associated with the specified activity from November 1, 
2023, through October 31, 2024. All previously described mitigation, 
monitoring, and reporting requirements from the initial 2022 IHA are 
incorporated.


[[Page 74981]]


    Dated: October 27, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-24105 Filed 10-31-23; 8:45 am]
BILLING CODE 3510-22-P