[Federal Register Volume 89, Number 93 (Monday, May 13, 2024)]
[Notices]
[Pages 41381-41384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10418]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD923]


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

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

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

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SUMMARY: NMFS received a request from the U.S. Army Corps of Engineers 
(ACOE) for the renewal of their currently active incidental harassment 
authorization (IHA) to take marine

[[Page 41382]]

mammals incidental to the Debris Dock Replacement Project in Sausalito, 
California. ACOE activities are identical to those covered in the 
current authorization. ACOE's activities will not be completed prior to 
the renewal authorization. Pursuant to the Marine Mammal Protection Act 
(MMPA), prior to issuing the currently active IHA, NMFS requested 
comments on both the proposed IHA and the potential for renewing the 
initial authorization if certain requirements were satisfied. The 
renewal requirements have been satisfied, and NMFS is now providing an 
additional 15-day comment period to allow for any additional comments 
on the proposed renewal not previously provided during the initial 30-
day comment period.

DATES: Comments and information must be received no later than May 28, 
2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and should be submitted via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word, Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.
    Electronic copies of the original application, renewal request, and 
supporting documents (including NMFS Federal Register notices of the 
original proposed and final authorizations, and the previous IHA), as 
well as a list of the references cited in this document, may be 
obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of 
problems accessing these documents, please call the contact listed 
below.

FOR FURTHER INFORMATION CONTACT: Summer Owens, 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 promulgated or, if the taking is limited to harassment, an IHA is 
issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). NMFS must also prescribe requirements pertaining to 
monitoring and reporting of such takings. The definition of key terms 
such as ``take,'' ``harassment,'' and ``negligible impact'' can be 
found in the MMPA and the NMFS' implementing regulations (see 16 U.S.C. 
1362; 50 CFR 216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity, and requested 
public comment on a potential renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year 
renewal of an IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    (1) A request for renewal is received no later than 60 days prior 
to the needed renewal IHA effective date (recognizing that the renewal 
IHA expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    (2) The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take); and
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    (3) Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with 
relevant comments on the initial IHA, have been considered in the 
development of this proposed IHA renewal, and a summary of agency 
responses to applicable comments is included in this notice. NMFS will 
consider any additional public comments prior to making any final 
decision on the issuance of the requested renewal, and agency responses 
will be summarized in the final notice of our decision.

[[Page 41383]]

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 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 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has preliminarily determined that the application of this 
categorical exclusion remains appropriate for this renewal IHA.

History of Request

    On July 14, 2021, NMFS issued an IHA to the U.S. ACOE to take 
marine mammals incidental to the Debris Dock Replacement Project in 
Sausalito, California (86 FR 37124, July 14, 2021) effective September 
1, 2021-August 31, 2022. As the planned work was never begun, NMFS 
reissued this IHA three times on request from the ACOE, effective 
January 5, 2022-January 4, 2023 (86 FR 73261, December 21, 2021), 
January 1, 2024-December 31, 2024 (88 FR 16412, March 17, 2023), and 
most recently, effective July 15, 2023-July 14, 2024 (88 FR 38035, June 
12, 2023). On April 4, 2024, NMFS received an application for the 
renewal of the most recent reissued IHA, referred to herein as the 
initial IHA. As described in the application for renewal IHA, the 
activities for which incidental take is requested are identical to 
those covered in the initial authorization.

Description of the Specified Activities 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. No work has yet occurred under the IHA, but 
the ACOE has informed us that they plan to begin the planned work but 
not finish it prior to expiration of the currently issued IHA.
    The purpose of the ACOE's construction project is to replace the 
existing decaying dock and other onshore infrastructure used to move 
marine debris collected from San Francisco Bay onto land for disposal. 
The location, timing, and nature of the activities, including the types 
of equipment planned for use, are identical to those described in the 
initial IHA. The mitigation and monitoring are also as prescribed in 
the initial IHA.
    Species that are expected to be taken by the planned activity 
include harbor porpoise (Phocoena phocoena), harbor seal (Phoca 
vitulina), gray whale (Eschrichtius robustus), bottlenose dolphin 
(Tursiops truncatus), California sea lion (Zalophus californianus), 
northern fur seal (Callorhinus ursinus), and northern elephant seal 
(Mirounga angustirostris). A description of the methods and inputs used 
to estimate take anticipated to occur and, ultimately, the take that 
was authorized is found in the previous documents referenced above. The 
data inputs and methods of estimating take are identical to those used 
in the initial IHA. NMFS has reviewed recent Stock Assessment Reports 
(SAR), information on relevant Unusual Mortality Events (UME), and 
recent scientific literature, and determined that no new information 
affects our original analysis of impacts or take estimates 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 2021 
IHA for the ACOE's construction work (86 FR 37124, July 14, 2021), the 
ACOE's application, the Federal Register notice of the proposed IHA (86 
FR 28768, May 28, 2021), all associated references and documents, and 
Federal Register notices of issuance for the reissued IHAs.

Detailed Description of the Activity

    A detailed description of the demolition and construction 
activities for which take is proposed here may be found in the notices 
of the proposed (86 FR 28768, May 28, 2021) and final IHAs for the 2021 
authorization. The location, timing, and nature of the activities, 
including the types of equipment planned for use, are identical to 
those described in the previous notices. The proposed renewal would be 
effective for a period from July 15, 2024, to July 14, 2025.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
notices of the proposed and final IHAs for the 2021 authorization. NMFS 
has reviewed recent SARs, including the draft 2023 SARs, information on 
relevant UMEs, and other scientific literature, and determined there is 
no new information that affects which species or stocks have the 
potential to be affected or the pertinent information in the 
Description of the Marine Mammals in the Area of Specified Activities 
contained in the supporting documents for the initial IHA. Two of the 
authorized stocks have increased slightly in abundance according to the 
draft 2023 SARs. The San Francisco/Russian River stock of harbor 
porpoise has increased from 7,524 to 7,777 and the California breeding 
stock of northern elephant seal has increased from 179,000 to 187,386. 
However, these new population abundance estimates do not change 
estimated take numbers, or influence the findings made in support of 
the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which an 
authorization of incidental take is proposed here may be found in the 
notices of the proposed and final IHAs for the 2021 authorization. NMFS 
has reviewed recent draft SARs, information on relevant UMEs, and other 
scientific literature, and determined that there is no new information 
that affects our initial analysis of impacts on marine mammals and 
their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Notices of the Final 
IHAs for the 2021 authorization. Specifically, the source levels, days 
of operation, and marine mammal density and occurrence data applicable 
to this authorization remain unchanged from the previously issued IHAs. 
Similarly, the stocks taken, methods and types of takes, and numbers of 
takes remain unchanged from the previously issued IHA, as do the number 
of takes, which are indicated below in table 1.

[[Page 41384]]



                               Table 1--Summary of Marine Mammal Takes by Species
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                                                                      Level A         Level B       Percent  of
         Common name            Scientific name       Stock         harassment      harassment         stock
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Harbor Seal..................  Phoca vitulina..  California.....               2             527             1.7
Harbor Porpoise..............  Phocoena          San Francisco-                2              21             0.3
                                phocoena.         Russian River.
California Sea Lion..........  Zalophus          U.S............               2              20            <0.1
                                californianus.
Gray Whale...................  Eschrichtius      Eastern North                 0               2            <0.1
                                robustus.         Pacific.
Bottlenose Dolphin...........  Tursiops          California                    0               9               2
                                truncatus.        Coastal.
Northern Elephant Seal.......  Mirounga          California                    0               5            <0.1
                                angustirostris.   Breeding.
Northern Fur Seal............  Callorhinus       California and                0               3            <0.1
                                ursinus.          Eastern North
                                                  Pacific.
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in the authorization are identical to those 
included in the Federal Register notice announcing the issuance of the 
2021 IHA and subsequently included in the reissued IHAs, and the 
discussion of the least practicable adverse impact included in the 
application and the notice of the proposed and final IHA remains 
accurate.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (86 
FR 28768, May 28, 2021) and solicited public comments on both our 
proposal to issue the 2021 IHA for pile driving and removal activities 
and on the potential for a renewal IHA, should certain requirements be 
met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (86 FR 37124, July 14, 2021) and none of 
the comments specifically pertained to the renewal of the IHA.

Preliminary Determinations

    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) the required mitigation measures will affect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) U.S. ACOE activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action; and, 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act (ESA)

    Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that 
each Federal agency ensure 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 Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to the U.S. ACOE for conducting Debris Dock 
Replacement Project using pile driving in Sausalito, California, 
between July 15, 2024, and July 14, 2025, provided the previously 
described mitigation, monitoring, and reporting requirements are 
incorporated. A draft of the proposed and final initial IHA can be 
found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-army-corps-engineers-debris-dock-replacement-project-sausalito. We request comment on our analyses, the proposed renewal 
IHA, and any other aspect of this notice. Please include with your 
comments any supporting data or literature citations to help inform our 
final decision on the request for MMPA authorization.

    Dated: May 6, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-10418 Filed 5-10-24; 8:45 am]
 BILLING CODE 3510-22-P