[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Notices]
[Pages 2202-2212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00485]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD563]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the City of Oceanside's Harbor 
Fishing Pier and Non-Motorized Vessel Launch Improvement Project in 
Oceanside, California

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the City of Oceanside to incidentally harass, by Level B harassment 
only, marine mammals during construction activities associated with 
harbor fishing pier and non-motorized vessel launch improvement in 
Oceanside, California. There are no changes from the proposed 
authorization to the final authorization.

DATES: This authorization is effective from March 1, 2024, through 
February 28, 2025.

ADDRESSES: 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/action/incidental-take-authorization-city-oceansides-harbor-fishing-pier-and-non-motorized-vessel. In case of problems accessing these documents, 
please call the contact listed below.

FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, 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.

Summary of Request

    On May 16, 2023, NMFS received a request from the City of Oceanside 
for an IHA to take marine mammals incidental to construction activities 
associated with fishing pier and non-motorized vessel launch 
improvement in Oceanside Harbor, Oceanside, CA. Following NMFS' review 
of the application, the City of Oceanside submitted revised versions on 
July 18 and October 17, 2023. The application was deemed adequate and 
complete on November 2, 2023. The City of Oceanside's request is for 
take of seven species of marine mammals by Level B harassment only. 
Neither the City of Oceanside nor NMFS expect serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate. There are no changes from the proposed IHA to the final 
IHA.

Description of Specified Activity

    The City of Oceanside plans to remove and replace the existing 
public fishing pier and non-motorized vessel launch in Oceanside 
Harbor, Oceanside, CA. The applicant plans to use vibratory extraction 
to remove four 16-inch octagonal concrete support piles; vibratory 
driving to install up to 18 18-inch round plastic-coated steel piles to 
within 0.61-1.52 meters (m; 2-5 feet (ft)) of required depth; and, 
potentially, impact driving to complete pile installation depending on 
observed soil resistance. While not expected to be required based on 
site geology, 18 10-inch steel piles may be used as temporary guide 
piles to aid in the installation of the larger 18-inch structural 
piles.
    A maximum of 6 non-consecutive days of piling activities will occur 
during the course of construction (5-6 months) from March 2024 through 
February 2025 (table 1). All project activities for which take is being 
requested will be located in Oceanside Harbor, Oceanside, CA.
    A detailed description of the planned construction project is 
provided in the Federal Register notice for the proposed IHA (88 FR 
83081, November 28, 2023). Since that time, no changes have been made 
to the planned activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specified activity.

                                                  Table 1--Pile Extraction and Installation Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                             Estimated
                                                                                                             Duration of    Duration of      blows of
             Pile activity                         Method                Pile size (inch),       Piles per     activity      vibratory    impact driving
                                                                              material              day         (days)     activity per      per pile
                                                                                                                          pile (minutes)     (strikes)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Extraction.............................  Vibratory.................  16, concrete.............            4            1              25             N/A
Installation...........................  Vibratory.................  18, steel................            4          * 5              25             N/A
Installation...........................  Impact....................  18, steel................            4          * 5             N/A             300

[[Page 2203]]

 
Installation...........................  Vibratory.................  10, steel................            4          N/A              10             N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Impact pile installation will be used for driving piles 0.61-1.52 m to final depth, depending on observed sediment resistance.
* Vibratory and impact installation of 18-inch steel piles will occur in the same 5 days.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to the City of Oceanside 
was published in the Federal Register on November 29, 2023 (88 FR 
83081). That notice described, in detail, the City of Oceanside's 
planned activities, the marine mammal species that may be affected by 
the activities, and the anticipated effects on marine mammals. In that 
notice, we requested public input on the request for authorization 
described therein, our analyses, the proposed authorization, and any 
other aspect of the notice of proposed IHA, and requested that 
interested persons submit relevant information, suggestions, and 
comments. During the 30-day public comment period no substantive 
comments were received.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the IHA 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, instead of reprinting the 
information. Additional information regarding population trends and 
threats may be found in NMFS' Stock Assessment Reports (SARs; https://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 2 lists all species for which take is 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 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. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. Pacific SARs. All values presented in table 2 are the most 
recent available at the time of publication (including from the 2022 
SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                     Table 2--Marine Mammal Species Likely Impacted by the Specified Activities \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      ESA/MMPA status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           strategic (Y/N)      Nmin, most recent        PBR      Annual M/SI
                                                                                            \2\          abundance survey) \3\                   \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Bottlenose dolphin.............  Tursiops truncatus....  California Coastal....  -/-; N             453 (0.06, 346, 2011).          2.7          >=2
    Long-beaked common dolphin.....  Delphinus delphis       California............  -/-; N             83,379 (0.216, 69,636,          668       >=29.7
                                      capensis.                                                          2018).
    Short-beaked common dolphin....  Delphinus delphis       California/Oregon/      -/-; N             1,056,308 (0.21,              8,889       >=30.5
                                      delphis.                Washington.                                888,971, 2018).
    Pacific white-sided dolphin....  Lagenorhynchus          California............  -/-; N             34,999 (0.222, 29,090,          279            7
                                      obliquidens.                                                       2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California sea lion............  Zalophus californianus  U.S...................  -/-; N             257,606 (N/A, 233,515,       14,011         >321
                                                                                                         2015).
Family Phocidae (earless seals):
    Harbor seal....................  Phoca vitulina          California............  -/-; N             30,968 (0.157, 27,348,        1,641         42.8
                                      richardii.                                                         2012).
    Northern elephant seal.........  Mirounga                California Breeding...  -/-; N             187,386 (N/A, 85,369,         5,122         13.7
                                      angustirostris.                                                    2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).

[[Page 2204]]

 
\2\ 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.
\3\ 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.
\4\ 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, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A
  CV associated with estimated mortality due to commercial fisheries is presented in some cases.

    As indicated above, all seven species in table 2 temporally and 
spatially co-occur with the activity to the degree that take is 
reasonably likely to occur. Based on previous marine mammal monitoring 
events near the mouth of Oceanside Harbor (Merkel and Associates, Inc., 
2022; Merkel and Associates, Inc., 2023), other marine mammals rarely 
occur within Oceanside Harbor and any occurrence in the project area 
would be very rare. While Risso's dolphins (Grampus griseus) and gray 
whales (Eschrichtius robustus) have been sighted outside of the harbor 
and in coastal waters, these species' general spatial occurrence is 
such that take is not expected to occur as they typically occur more 
offshore, and they are not discussed further.
    A detailed description of the species likely to be affected by this 
project, including brief introductions to the species and relevant 
stocks as well as available information regarding population trends and 
threats, and information regarding local occurrence, were provided in 
the Federal Register notice for the proposed IHA (88 FR 83081, November 
28, 2023); since that time, we are not aware of any changes in the 
status of these species and stocks; therefore, detailed descriptions 
are not provided here. Please refer to that Federal Register notice for 
these descriptions. Please also refer to the NMFS website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995, Wartzok and 
Ketten, 1999, Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). Note that no direct measurements of 
hearing ability have been successfully completed for mysticetes (i.e., 
low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in table 3.

                  Table 3--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006, Kastelein et al., 2009, Reichmuth et al., 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the City of Oceanside's 
construction activities have the potential to result in Level B 
harassment of marine mammals in the project area. The notice of the 
proposed IHA (88 FR 83081, November 28, 2023) included a discussion of 
the effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from the City of Oceanside's construction 
activities on marine mammals and their habitat. That information and 
analysis is referenced in this final IHA determination and is not 
repeated here; please refer to the notice of the proposed IHA (88 FR 
83081, November 28, 2023).

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which informed 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,

[[Page 2205]]

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).
    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 acoustic sources. Based on the nature of 
the activity and the anticipated effectiveness of the mitigation 
measures (i.e., shutdown), Level A harassment is neither anticipated 
nor authorized (see Mitigation and Monitoring and Reporting sections).
    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and, (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the authorized take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur Permanent Threshold Shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, Southall et al., 2021, Ellison et 
al., 2012). Based on what the available science indicates and the 
practical need to use a threshold based on a metric that is both 
predictable and measurable for most activities, NMFS typically uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS generally predicts that marine 
mammals are likely to be behaviorally harassed in a manner considered 
to be Level B harassment when exposed to underwater anthropogenic noise 
above root-mean-squared sound pressure levels (RMS SPL) of 120 dB 
(referenced to 1 microPascal (re 1 [mu]Pa)) for continuous (e.g., 
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa 
for non-explosive impulsive (e.g., seismic airguns) or intermittent 
(e.g., scientific sonar) sources. Generally speaking, Level B 
harassment take estimates based on these behavioral harassment 
thresholds are expected to include any likely takes by temporary 
threshold shift (TTS) as, in most cases, the likelihood of TTS occurs 
at distances from the source less than those at which behavioral 
harassment is likely. TTS of a sufficient degree can manifest as 
behavioral harassment, as reduced hearing sensitivity and the potential 
reduced opportunities to detect important signals (e.g., conspecific 
communication, predators, prey) may result in changes in behavior 
patterns that would not otherwise occur.
    The City of Oceanside's construction activities include the use of 
continuous (vibratory pile removal and installation) and, potentially, 
impulsive (impact pile installation) sources, and therefore the RMS SPL 
thresholds of 120 and 160 dB re 1 [mu]Pa are both applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0, 
Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). The City 
of Oceanside's activities include the use of impulsive (impact hammer) 
and non-impulsive (vibratory hammer) sources.
    These thresholds are provided in table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                    PTS onset acoustic thresholds *  (received level)
             Hearing group             -------------------------------------------------------------------------
                                                Impulsive                          Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans..........  Cell 1: Lpk,flat: 219 dB;  Cell 2: LE,LF,24h: 199 dB.
                                         LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans..........  Cell 3: Lpk,flat: 230 dB;  Cell 4: LE, MF,24h: 198 dB.
                                         LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.........  Cell 5: Lpk,flat: 202 dB;  Cell 6: LE,HF,24h: 173 dB.
                                         LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)....  Cell 7: Lpk,flat: 218 dB;  Cell 8: LE,PW,24h: 201 dB.
                                         LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)...  Cell 9: Lpk,flat: 232 dB;  Cell 10: LE,OW,24h: 219 dB.
                                         LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.

[[Page 2206]]

 
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa\2\s. In this table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI, 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activities that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss (TL) 
coefficient.
    Pile driving activities using an impact hammer as well as a 
vibratory hammer generate underwater noise that could result in 
disturbance to marine mammals near the project area. A review of 
underwater sound measurements for similar projects was conducted to 
estimate the near-source sound levels for impact and vibratory pile 
driving and vibratory extraction. Source levels and sound exposure 
levels (SEL) for planned removal and installation activities derived 
from this review are shown in table 5.

                                                          Table 5--Project Sound Source Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                    Peak  SPL dB     RMS  SPL dB
              Activity                       Method           Pile size  (inch,      re 1 [mu]Pa     re 1 [mu]Pa    SEL  dB re 1           Source
                                                                  material)              \1\             \1\         [mu]Pa \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Extraction.........................  Vibratory............  16, concrete \2\.....             N/A             163             N/A  NAVFAC SW, 2022.
Installation.......................  Vibratory............  18, steel............             196             158             N/A  Caltrans, 2020.
Installation.......................  Impact...............  18, steel \3\........             200             185             175  Caltrans, 2020.
Installation.......................  Vibratory............  10, steel \4\........             171             155             N/A  Illingworth and
                                                                                                                                    Rodkin, 2007.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: All 18-inch round steel piles will be installed using both vibratory and impact driving, therefore, the total number of 18-inch piles proposed for
  use is 18. Use of 10-inch piles will be as temporary support, and will be driven and removed in the same day as the permanent 18-inch piles.
\1\ As measured, or calculated, at 10 m (33 ft).
\2\ Proxy source levels provided by NMFS from Pier 6 Replacement Project, San Diego Bay (NAVFAC SW, 2022).
\3\ Analysis of pooled reported data provided by NMFS (Caltrans, 2020).
\4\ In the absence of information on vibratory installation of 10[hyphen]inch round steel piles, source data from 12[hyphen]inch round steel piles
  (Illingworth and Rodkin, 2007) was used as a proxy source level.

    Level B Harassment Zone--TL is the decrease in acoustic intensity 
as an acoustic pressure wave propagates out from a source. TL 
parameters vary with frequency, temperature, sea conditions, current, 
source and receiver depth, water depth, water chemistry, and bottom 
composition topography. The general formula for underwater TL is:

TL = B * Log10 (R1/R2),

where

TL = transmission loss in dB;
B = transmission loss coefficient;
R1 = the distance of the modeled SPL from the driven 
pile; and
R2 = the distance from the driven pile of the initial 
measurement.

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, known as practical spreading, 
which is the most appropriate assumption for the City of Oceanside's 
activities in the absence of specific modeling and site-specific 
information. Sound propagation in Oceanside Harbor is limited by 
physical structures and substantial sound will be confined within the 
harbor (see figures 6-1, 6-2 in the IHA application). The Level A and 
Level B harassment isopleths for the City of Oceanside's activities are 
shown in table 6.

                             Table 6--Distance to the Level A and Level B Harassment Thresholds for Construction Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Level A         Level A         Level A         Level B
               Activity                         Method              Pile size  (inch,     threshold  for  threshold  for  threshold  for    harassment
                                                                        material)             MF  (m)         PW  (m)         OW  (m)        zone  (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Extraction...........................  Vibratory...............  16, concrete...........             1.2             7.9             0.6           7,356
Installation.........................  Vibratory...............  18, steel..............             0.5             3.7             0.3           3,415
Installation.........................  Impact..................  18, steel..............            11.7           176.7            12.9             100
Installation.........................  Vibratory...............  10, steel..............             0.2             1.3             0.1           2,154
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For impact pile driving, the single strike SEL was used to calculate distances to Level A harassment thresholds.
Abbreviations: MF = mid[hyphen]frequency cetaceans, PW = phocid pinnipeds, OW = otariid pinnipeds.

    Level A Harassment Zones--The ensonified area associated with Level 
A harassment is more technically challenging to predict due to the need 
to account for a duration component. Therefore, NMFS developed an 
optional User Spreadsheet tool to accompany the Technical Guidance that 
can be used to relatively simply predict an isopleth distance for use 
in conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an

[[Page 2207]]

overestimate of potential take by Level A harassment. However, this 
optional tool offers the best way to estimate isopleth distances when 
more sophisticated modeling methods are not available or practical. For 
stationary sources (i.e., vibratory and impact piling), the optional 
User Spreadsheet tool predicts the distance at which, if a marine 
mammal remained at that distance for the duration of the activity, it 
would be expected to incur PTS. Inputs used in the optional User 
Spreadsheet tool, and the resulting estimated isopleths, are reported 
in tables 6 and 7. The isopleths generated by the User Spreadsheet used 
the same TL coefficients as the Level B harassment isopleth 
calculations, as indicated above for each activity type. Inputs used in 
the User Spreadsheet (e.g., number of piles per day, duration and/or 
strikes per pile) are presented in table 1. The maximum RMS SPL, SEL, 
and peak SPL are reported in table 7. The cumulative SEL and peak SPL 
were used to calculate Level A harassment isopleths for vibratory pile 
driving and extraction activities, while the single strike SEL value 
was used to calculate Level A harassment isopleths for impact pile 
driving activity.

                                           Table 7--Sound Levels Used for Predicting Underwater Sound Impacts
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                          Single  strike
               Activity                         Method              Pile size  (inch,        Duration      Peak SPL  dB   RMS SPL  dB re    SEL dB  re 1
                                                                        material)           (hours/day)    re 1  [mu]Pa      1  [mu]Pa    [mu]Pa\2\  sec
--------------------------------------------------------------------------------------------------------------------------------------------------------
Extraction...........................  Vibratory...............  16, concrete...........            1.67             N/A             163             N/A
Installation.........................  Vibratory...............  18, steel..............            1.67             196             158             N/A
Installation.........................  Impact..................  18, steel..............            0.13             200             185             175
Installation.........................  Vibratory...............  10, steel..............            0.67             171             155             N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations.
    Bottlenose Dolphin--Bottlenose dolphins can occur at any time of 
year in the waters around Oceanside Harbor. Based on previous 
monitoring (Merkel and Associates, Inc., 2022), an average of 6 
bottlenose dolphins per day were observed with a maximum of 12 
individuals being observed on a single day. This higher peak of 12 
individuals was used to calculate Level B harassment for bottlenose 
dolphin.
    Common Dolphin--Common dolphins are generally abundant in the outer 
coastal waters but are not known to occur regularly in Oceanside 
Harbor. Based on marine mammal monitoring by NAVFAC SW (2015), during 
El Ni[ntilde]o conditions an average of 8.5 common dolphins per day 
(rounded to nine per day) were observed in northwest San Diego Bay. 
This expected daily individual count was used to calculate the take by 
Level B harassment for common dolphins within Oceanside Harbor as no 
local data exists.
    Pacific White-Sided Dolphin--Pacific white[hyphen]sided dolphins 
are commonly seen offshore of southern California but are not known to 
occur regularly in Oceanside Harbor. Based on the observations 
presented by NAVFAC SW (2015), during El Ni[ntilde]o conditions an 
average of 0.3 Pacific white[hyphen]sided dolphins per day (rounded to 
one per day) were observed. This expected daily individual count was 
used to calculate the Level B harassment for Pacific white[hyphen]sided 
dolphins.
    California Sea Lion--California sea lions are present in Oceanside 
Harbor year[hyphen]round and numbers vary considerably. The daily 
estimate provided by the Oceanside Harbor Department is over 100 
individuals. Limited counts from photographs and spot counts average 
approximately 50 individuals and are known to be incomplete estimates. 
Based on the variability in the number of sea lions present in the 
harbor, an estimate of 100 sea lions per day was used to estimate take.
    Harbor Seal--Based on marine mammal monitoring by NAVFAC SW (2015), 
during El Ni[ntilde]o conditions an average of 2.5 harbor seals per day 
(rounded to three per day) were observed. This expected daily 
individual count was used to calculate the Level B harassment for 
harbor seals in Oceanside Harbor.
    Northern Elephant Seal--Due to increasing population size of 
northern elephant seals, presence in the Southern California Bight is 
considered a reasonable possibility (Carretta et al., 2023). Based on 
marine mammal monitoring by NAVFAC SW (2015), an average of 0.1 
northern elephant seals per day (rounded to one per day) were observed 
during El Ni[ntilde]o conditions. This expected daily individual count 
was used to calculate the Level B harassment for northern elephant 
seals in Oceanside Harbor.

Take Estimation

    Here we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur and is authorized.
    No take by Level A harassment is expected for any species of marine 
mammal due to the small zone sizes for most taxa and the low likelihood 
that an animal would approach during in-water construction or remain 
within the Level A harassment isopleth long enough to incur PTS during 
the specified activities. Planned shutdown zones will encompass the 
extent of the estimated Level A harassment isopleths (180 m for phocid 
pinnipeds during impact driving, 15 m for all other species and 
activities) and are expected to be effective at avoiding Level A 
harassment for all species. Given the locations of protected species 
observers (PSOs) described in the Monitoring and Reporting section, in 
conjunction with the City of Oceanside's shutdown mitigation measure, 
NMFS agrees that monitoring and shutdown measures are likely to be 
successful at avoiding take by Level A harassment.
    Incidental take by Level B harassment was estimated for each 
species by multiplying the expected average number of individuals per 
day by the number of work days (6 days; table 8). Take estimates for 
each species were calculated by multiplying the estimated site-specific 
abundance of each species by the area of impact where noise levels 
exceed acoustic thresholds for marine mammals during each type of 
piling activity (vibratory removal, vibratory driving, impact driving) 
and pile size (16-inch concrete, 18-inch steel, 10-inch steel). 
Estimated daily exposures for each species were based on evaluation of 
the potential presence of each marine mammal species using recent

[[Page 2208]]

occurrence data from Oceanside Harbor (Merkel and Associates, Inc., 
2022; Merkel and Associates, Inc., 2023).

Estimated Take = Expected Average Individuals per Day x Number of Work 
Days

    Due to a paucity of marine mammal occurrence data within Oceanside 
Harbor, and with the probability of El Ni[ntilde]o conditions 
persisting throughout 2024 (https://www.cpc.ncep.noaa.gov/products/analysis_monitoring/enso_advisory/ensodisc.shtml), four species of 
marine mammal (common dolphin, Pacific white-sided dolphin, harbor 
seal, northern elephant seal) that are unlikely to occur within a semi-
enclosed harbor environment were included to account for a potential 
increase in occurrence that has been previously documented for those 
species under similar climatological conditions (NAVFAC SW, 2015).

                                 Table 8--Take by Level B Harassment Authorized
----------------------------------------------------------------------------------------------------------------
                                                                                      Maximum
                                                                     Expected        estimated       Estimated
         Common name           Scientific  name       Stock           average         Level B       takes as a
                                                                    individuals     harassment    percentage  of
                                                                      per day          takes        population
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin \1\.......  Tursiops          California                   12              72            15.9
                                truncatus.        Coastal.
Common dolphin (long-beaked)   Delphinus         California.....             * 9            * 54              <1
 \2\.                           capensis.
Common dolphin (short-beaked)  Delphinus         California/                 * 9            * 54              <1
 \2\.                           delphis.          Oregon/
                                                  Washington.
Pacific white-sided dolphin    Lagenorhynchus    California/                   1               6              <1
 \2\.                           obliquidens.      Oregon/
                                                  Washington--No
                                                  rthern and
                                                  Southern.
California sea lion \3\......  Zalophus          U.S............             100             600              <1
                                californianus.
Harbor seal \2\..............  Phoca vitulina    California.....               3              18              <1
                                richardii.
Northern elephant seal \2\...  Mirounga          California                    1               6              <1
                                angustirostris.   breeding.
----------------------------------------------------------------------------------------------------------------
\1\ Average daily counts based on observations during Oceanside Harbor Dredging 2022 Project Monitoring, rounded
  up to nearest individual count (Merkel and Associates Inc., 2022).
\2\ Average daily counts based on observations during Year 2 of Navy Base Point Loma's Fuel Pier Replacement
  Project Monitoring, rounded up to nearest individual count (NAVFAC SW, 2015).
\3\ Reported high estimate of sea lions observed on pinniped float by Oceanside Harbor District staff.
* A total of 54 takes are estimated and may be attributed to either long- or short-beaked common dolphin
  species.

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.
    The City of Oceanside must ensure that construction supervisors and 
crews, the monitoring team, and relevant staff/contractors are trained 
prior to the start of all piling activities so that responsibilities, 
communication procedures, monitoring protocols, and operational 
procedures are clearly understood. New personnel joining during the 
project must be trained prior to commencing work.

Timing Restrictions

    All piling activities will be conducted during daylight hours, 
generally between 45 minutes post-sunrise and 45 minutes pre-sunset. 
All piling will occur in March 2024 and/or September 2024 through 
February 2025, when the likelihood of ESA-listed California least tern 
breeding and nesting in the work area is minimal, as proposed by the 
City of Oceanside.

Protected Species Observers

    The placement of PSOs during all pile driving activities (described 
in the Monitoring and Reporting section) will ensure that the entire 
shutdown zone is visible. Should environmental conditions deteriorate 
such that the entire shutdown zone is not visible (e.g., fog, heavy 
rain), pile driving will be delayed until the PSO is confident marine 
mammals within the shutdown zone can be detected.
    PSOs will monitor the full shutdown zones and the Level B 
harassment zones to the extent practicable. Monitoring zones provide 
utility for observing by establishing monitoring protocols for areas 
adjacent to the shutdown zones. Monitoring zones enable observers to be 
aware of and communicate the presence of marine mammals in the project 
areas outside the shutdown zones and thus prepare for a potential 
cessation of activity should the animal enter the shutdown zone.

Pre- and Post-Activity Monitoring

    Monitoring will take place from 30 minutes prior to initiation of 
pile driving activities (i.e., pre-clearance

[[Page 2209]]

monitoring) through 30 minutes post-completion of pile driving. Prior 
to the start of daily in-water construction activity, or whenever a 
break in pile driving of 30 minutes or longer occurs, PSOs will observe 
the shutdown and monitoring zones for a period of 30 minutes. The 
shutdown zone will be considered cleared when a marine mammal has not 
been observed within the zone for a 30-minute period. If a marine 
mammal is observed within the shutdown zones listed in table 9, pile 
driving activity will be delayed or halted. If work ceases for more 
than 30 minutes, the pre-activity monitoring of the shutdown zones will 
commence. A determination that the shutdown zone is clear must be made 
during a period of good visibility (i.e., the entire shutdown zone and 
surrounding waters must be visible to the naked eye).

Soft-Start Procedures for Impact Driving

    Soft-start procedures provide additional protection to marine 
mammals by providing warning and/or giving marine mammals a chance to 
leave the area prior to the hammer operating at full capacity. If 
impact pile driving is necessary to achieve required tip elevation, 
City of Oceanside staff and/or contractors are required to provide an 
initial set of three strikes from the hammer at reduced energy, 
followed by a 30-second waiting period, then two subsequent reduced-
energy strike sets. Soft-start will be implemented at the start of each 
day's impact pile driving and at any time following cessation of impact 
pile driving for a period of 30 minutes or longer.

Shutdown Zones

    The City of Oceanside must establish shutdown zones for all pile 
driving activities. The purpose of a shutdown zone is generally to 
define an area within which shutdown of the activity will occur upon 
sighting of a marine mammal (or in anticipation of an animal entering 
the defined area). Shutdown zones are based upon the Level A harassment 
isopleth for each pile size/type and driving method where applicable, 
as shown in table 6. During all in-water piling activities, the City of 
Oceanside plans to implement a buffered 15 m shutdown zone, with the 
exception of a 180 m shutdown zone for phocids during the use of impact 
pile driving of 18-inch piles. These distances exceed the estimated 
Level A harassment isopleths described in table 6. Adherence to this 
expanded shutdown zone will avoid the potential for the take of phocids 
by Level A harassment during impact pile driving. For pile driving, the 
radii of the shutdown zones are rounded to the next largest 10 m 
interval in comparison to the Level A harassment isopleth for each 
activity type. If a marine mammal is observed entering, or detected 
within, a shutdown zone during pile driving activity, the activity must 
be stopped until there is visual confirmation that the animal has left 
the zone or the animal is not sighted for a period of 15 minutes. 
Shutdown zones for each activity type are shown in table 9.
    All marine mammals will be monitored in the Level B harassment 
zones and throughout the area as far as visual monitoring can take 
place. If a marine mammal enters the Level B harassment zone, in-water 
activities will continue and PSOs will document the animal's presence 
within the estimated harassment zone.

                                                         Table 9--Shutdown and Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Pile size (inch),      Shutdown zone   Shutdown zone   Shutdown zone    Harassment
               Activity                         Method                   material           for MF (m)      for PW (m)      for OW (m)       zone (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Extraction...........................  Vibratory...............  16, concrete...........              15              15              15           7,360
Installation.........................  Vibratory...............  18, steel..............              15              15              15           3,420
Installation.........................  Impact..................  18, steel..............              15             180              15             100
Installation.........................  Vibratory...............  10, steel..............              15              15              15           2,160
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Based on our evaluation of the City of Oceanside's planned 
measures, NMFS has determined that the planned 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.

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;
     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.

Visual Monitoring

    Marine mammal monitoring must be conducted in accordance with the 
conditions in this section and this IHA. Marine mammal monitoring 
during pile driving activities will be conducted by two PSOs meeting 
NMFS' standards and

[[Page 2210]]

in a manner consistent with the following:
     PSOs must be independent of the activity contractor (for 
example, employed by a subcontractor) and have no other assigned tasks 
during monitoring periods;
     At least one PSO will have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization;
     Other PSOs may substitute other relevant experience, 
education (degree in biological science or related field), or training 
for prior experience performing the duties of a PSO during construction 
activity pursuant to a NMFS-issued incidental take authorization;
     Where a team of three or more PSOs is required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer must have prior experience performing the duties of a PSO 
during construction activity pursuant to a NMFS-issued incidental take 
authorization; and
     PSOs must be approved by NMFS prior to beginning any 
activity subject to the IHA.
    PSOs should have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    The City of Oceanside will have two PSOs stationed at the best 
possible vantage points in the project area to monitor during all pile 
driving activities. Monitoring will occur from elevated locations along 
the shoreline where the entire shutdown zones are visible. PSOs will be 
equipped with high quality binoculars for monitoring and radios or 
cells phones for maintaining contact with work crews. Monitoring will 
be conducted 30 minutes before, during, and 30 minutes after all in-
water construction activities. In addition, PSOs will record all 
incidents of marine mammal occurrence, regardless of distance from 
activity, and will document any behavioral reactions in concert with 
distance from piles being driven or removed. Pile driving activities 
include the time to install or remove a single pile or series of piles, 
as long as the time elapsed between uses of the pile driving equipment 
is no more than 30 minutes.

Reporting

    The City of Oceanside will provide the following reporting as 
necessary during active pile driving activities:
     The applicant will report any observed injury or mortality 
as soon as feasible and in accordance with NMFS' standard reporting 
guidelines. Reports will be made by phone (866-767-6114) and by email 
([email protected]) and will include the following:
    [cir] Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    [cir] Species identification (if known) or description of the 
animal(s) involved;
    [cir] Condition of the animal(s) (including carcass condition if 
the animal is dead);
    [cir] Observed behaviors of the animal(s), if alive;
    [cir] If available, photographs or video footage of the animal(s); 
and
    [cir] General circumstances under which the animal was discovered;
     An annual report summarizing the prior year's activities 
will be provided that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, estimates 
the number of listed marine mammals that may have been incidentally 
taken during project pile driving, and provides an interpretation of 
the results and effectiveness of all monitoring tasks. The annual draft 
report will be provided no later than 90 days following completion of 
construction activities. Any recommendations made by NMFS will be 
addressed in the final report, due after the IHA expires and including 
a summary of all monitoring activities, prior to acceptance by NMFS. 
Final reports will follow a standardized format for PSO reporting from 
activities requiring marine mammal mitigation and monitoring; and
     All PSOs will use a standardized data entry format (see 
Monitoring Plan).

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).
    To avoid repetition, the discussion of our analysis applies to all 
species listed in table 2, given that the anticipated effects of the 
construction activities on these different marine mammal stocks are 
expected to be similar. There is little information about the nature or 
severity of the impacts, or the size, status, or structure of any of 
these species or stocks that would lead to a different analysis for 
these activities.
    Level A harassment is extremely unlikely for any species given the 
small size of the Level A harassment isopleths and the required 
mitigation measures designed to minimize the possibility of injury to 
marine mammals (see Mitigation section). No mortality or serious injury 
is anticipated given the nature of the activity.
    Pile installation and removal activities are likely to result in 
the Level B harassment of marine mammals that move into the ensonified 
area, primarily

[[Page 2211]]

in the form of disturbance or displacement of marine mammals.
    Take would occur within a limited, confined area of each stock's 
range. Level B harassment will be reduced to the level of least 
practicable adverse impact through use of mitigation measures described 
herein. Further, the amount of take authorized is extremely small when 
compared to stock abundance.
    No marine mammal stocks for which incidental take is authorized are 
listed as threatened or endangered under the ESA or determined to be 
strategic or depleted under the MMPA. The relatively low marine mammal 
occurrences in the area, small shutdown zones, and planned monitoring 
make injury takes of marine mammals unlikely. The shutdown zones will 
be thoroughly monitored before vibratory pile installation and removal 
begins, and construction activities will be postponed if a marine 
mammal is sighted within the shutdown zone. There is a high likelihood 
that marine mammals will be detected by PSOs under environmental 
conditions described for the project. Limiting construction activities 
to daylight hours will also increase detectability of marine mammals in 
the area. Therefore, the planned mitigation and monitoring measures are 
expected to eliminate the potential for injury and Level A harassment 
as well as reduce the amount and intensity for Level B behavioral 
harassment. Furthermore, the pile installation and removal 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 5-6 months. 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., NAVFAC SW, 2018). Individual animals, even if 
taken multiple times, would likely move away from the sound source and 
be temporarily displaced from the area due to elevated noise level 
during pile removal. There are no known feeding or other biologically 
important areas (BIAs) for any species in or near the project area 
(Ferguson et al., 2015). Marine mammals could also experience TTS if 
they move into the Level B harassment monitoring zone. TTS is a 
temporary loss of hearing sensitivity when exposed to loud sound and, 
given the likely levels and duration of exposure to pile driving, any 
shift of the hearing threshold is expected to recover completely within 
minutes to hours. While TTS could occur, it is not considered a likely 
outcome of this activity.
    Given the limited number of total predicted exposures, no 
individual marine mammals of any species, with the possible exception 
of California sea lions, are expected to be taken on more than a few 
days during the construction activities. California sea lions are 
relatively common in the area and potential takes would likely involve 
sea lions loafing on, or in the vicinity of, physical structures or 
moving through the area en route to foraging areas or structures where 
they haul out. Relocation of the float where they frequently haul out 
is expected to reduce both the number of sea lions present in the area 
during construction and also the likelihood that they may be repeatedly 
impacted.
    The project is not expected to have significant adverse effects on 
marine mammal habitat. There is no ESA-designated critical habitat 
within the project area, and the planned activities will not 
permanently modify existing marine mammal habitat. The activities may 
cause fish to leave the area temporarily which could impact marine 
mammals' foraging opportunities in a limited portion of the foraging 
range. However, due to the short duration of the planned activities and 
the relatively small area of affected habitat, the impacts to marine 
mammal habitat are not expected to cause significant or long-term 
negative consequences.
    In combination, we believe that these factors, as well as the 
available body of evidence from other similar activities, demonstrate 
that the potential effects of the specified activities will have only 
minor, short-term effects on individuals. The specified activities are 
not expected to impact reproduction or survival of any individual 
marine mammals, much less affect rates of recruitment or survival and 
will therefore not result in population-level impacts.
    In summary and as described above, the following factors primarily 
support our 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, or Level A harassment, is 
anticipated or authorized;
     The specified activities are of a very short duration and 
associated ensonified areas are very small relative to the overall 
habitat ranges of both species;
     The project area does not overlap with known BIAs or ESA-
designated critical habitat;
     Significant or long-term effects to marine mammal habitat 
are not anticipated; and
     Mitigation measures are expected to reduce the effects of 
the specified activity to the level of least practicable adverse 
impact.
    Based on the analysis contained herein of the likely effects of the 
specified activities on marine mammals and their habitat, and taking 
into consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

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 has authorized is below one-third of the 
estimated stock abundances for all seven species (see table 8). For all 
but one species, the authorized take of individuals is less than 1 
percent of the abundance of the affected stock (with the exception for 
bottlenose dolphins at less than 16 percent). This is likely a 
conservative estimate because it assumes all takes are of different 
individual animals, which is likely not the case. Some individuals may 
return multiple times in a day, but PSOs will count them as separate 
takes if they cannot be individually identified.

[[Page 2212]]

    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS 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 ESA of 1973 (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 authorized for this 
activity. Therefore, NMFS has determined that formal consultation under 
section 7 of the ESA is not required for 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 (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 NAO 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 the 
issuance of this IHA qualifies to be categorically excluded from 
further NEPA review.

Authorization

    NMFS has issued an IHA to the City of Oceanside for the potential 
harassment of small numbers of seven marine mammal species incidental 
to construction activities in Oceanside Harbor, Oceanside, CA, that 
includes the previously explained mitigation, monitoring, and reporting 
requirements.

    Dated: January 8, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-00485 Filed 1-11-24; 8:45 am]
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