[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Notices]
[Pages 46069-46072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11533]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD920]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Chevron Long Wharf Maintenance 
and Efficiency Project in San Francisco Bay, California

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

ACTION: Notice; issuance of renewal 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 a renewal incidental harassment authorization 
(IHA) to Chevron Products Company (Chevron) to incidentally harass 
marine mammals incidental to the Long Wharf Maintenance and Efficiency 
Project (LWMEP) in San Francisco Bay, California.

DATES: This renewal IHA is valid from June 1, 2024, through May 31, 
2025.

ADDRESSES: 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: 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 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 NMFS's 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 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:

[[Page 46070]]

    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).
     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.

History of Request

    On May 12, 2023, NMFS issued an IHA to Chevron to take marine 
mammals incidental to the LWMEP in San Francisco Bay, California (88 FR 
31703, May 18, 2023), effective from June 1, 2023, through May 31, 
2024. On February 23, 2024, NMFS received an application for the 
renewal of that initial IHA. As described in the application for 
renewal, the activities for which incidental take is requested consist 
of activities that are covered by the initial authorization but will 
not be completed prior to its expiration. As required, the applicant 
also provided a preliminary monitoring report which confirms that the 
applicant has implemented the required mitigation and monitoring, and 
which also shows that no impacts of a scale or nature not previously 
analyzed or authorized have occurred as a result of the activities 
conducted. The notice of the proposed renewal IHA was published on 
April 11, 2024 (89 FR 25573).

Description of the Specified Activities and Anticipated Impacts

    The Chevron LWMEP consists of construction activities to upgrade 
Berth 1 of the Refinery Long Wharf in San Francisco Bay, California, in 
order to meet current safety and efficiency standards. Chevron's 
planned construction at Berth 1 included: vibratory extraction of two 
18-inch concrete piles associated with an existing gangway and catwalk; 
impact installation of 42 24-inch square concrete piles to construct a 
mooring dolphin and hook, breasting dolphin and breasting points with 
standoff fenders, and to replace the catwalk in a different location; 
vibratory installation of a temporary construction template composed of 
up to 12 36-inch steel piles; and vibratory extraction of the same 
temporary steel piles when in-water construction activities were 
complete. All in-water work was expected to be completed in a seasonal 
work window from June 1 through November 30, 2023.
    Due to unexpected difficulty with pile installation, Chevron was 
only able to complete vibratory extraction and impact installation of 
concrete piles, and vibratory installation of temporary steel piles. 
The applicant initially determined 12 36-inch steel piles would be 
needed to support the template; however, only 10 steel piles were 
needed and installed via vibratory hammer. Chevron plans to complete 
the remaining construction activities, which includes vibratory 
extraction of the 10 steel piles, in up to 8 non-consecutive days over 
1 month during June 1 through November 30, 2024. This renewal request 
is to cover the subset of activities in the initial IHA that will not 
be completed during the effective IHA period.
    The initial IHA was intended to cover 1 year of a larger project 
for which Chevron obtained prior IHAs and intends to request take 
authorization for subsequent facets of the project. The larger 5-year 
project involves upgrading Long Wharf to satisfy current Marine Oil 
Terminal Engineering and Maintenance Standards. The Long Wharf has 6 
berths for receiving raw materials and shipping products. The project 
area encompasses the entirety of Berth 1, an area of approximately 470 
square meters (m\2\).
    Chevron's planned activity includes vibratory pile removal, which 
may result in the incidental take of marine mammals, by harassment 
only. Due to mitigation measures, no Level A harassment is anticipated 
to occur, and none is authorized. The likely or possible impacts of 
Chevron's planned activity on marine mammals could involve both non-
acoustic and acoustic stressors and is unchanged from the impacts 
described in Federal Register notices for the initial IHA (88 FR 19247, 
March 31, 2023; 88 FR 31703, May 18, 2023). Potential non-acoustic 
stressors could result from the physical presence of the equipment, 
vessels, and personnel; however, any impacts to marine mammals are 
expected to primarily be acoustic in nature. Sounds resulting from pile 
extraction may result in the incidental take of marine mammals, by 
Level B harassment only, in the form of behavioral harassment.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is authorized here may be found in the notices of the proposed and 
final IHAs for the initial authorization (88 FR 19247, March 31, 2023; 
88 FR 31703, May 18, 2023). 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. This renewal IHA 
is effective for a period of 1 year from June 1, 2024, through May 30, 
2025.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized, including information on abundance, 
status, distribution, and hearing, may be found in the notice of the 
proposed IHA for the initial authorization (88 FR 19247, March 31, 
2023). NMFS has reviewed the preliminary monitoring data from the 
initial IHA, recent draft Stock Assessment Reports (SARs), information 
on relevant Unusual Mortality Events (UMEs), and other scientific 
literature, and determined that neither this nor any other new 
information 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 (88 FR 31703, May 18, 2023).

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 take is 
authorized here may be found in the Federal

[[Page 46071]]

Register notices of the proposed IHA for the initial authorization (88 
FR 19247, March 31, 2023). NMFS has reviewed the monitoring data from 
the initial IHA, 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 
proposed and final IHAs for the initial authorization (88 FR 19247, 
March 31, 2023; 88 FR 31703, May 18, 2023). Specifically, the area or 
space within which harassment is likely to occur and marine mammal 
occurrence data applicable to this authorization remain unchanged from 
the initial IHA. Similarly, methods of take, daily take estimates and 
types of take remain unchanged from the initial IHA, with the exception 
of California sea lion and gray whale. The number of takes authorized 
through this renewal are a subset of the initial authorized takes that 
better represent the amount of activity left to complete. These takes, 
which reflect the lower number of remaining days of work, are indicated 
below in table 1. Takes are calculated using the same methodology as 
the initial IHA, and are just a proportion of the initial takes based 
on up to 8 days of work remaining.
    For California sea lions, a maximum of four individuals have been 
seen in a single day based on previous monitoring reports. To account 
for this possibility, Chevron estimated 2 days of four individuals 
entering the project area and one individual for the remaining 6 days 
of work. Therefore, Chevron requested, and NMFS has authorized, 14 
takes of California sea lions by Level B harassment.
    The initial IHA authorized 2 takes by Level B harassment of gray 
whale. No gray whale takes have occurred, and given the already very 
low number of takes previously authorized (2 animals), NMFS has 
authorized 2 takes of gray whale by Level B harassment in this renewal 
IHA, rather than a proportion of the initial takes.
    Based upon prior occurrences in the Bay, Chevron conservatively 
estimated, and NMFS concurred, that a maximum of 10 northern fur seals 
could occur in the project area during the 30 day in-water construction 
activity period for the initial IHA. Since only 8 days of in-water work 
are planned for this renewal IHA, NMFS has authorized 3 takes of 
northern fur seals by Level B harassment.

            Table 1--Authorized Take by Level B Harassment and Take as a Percentage of the Population
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                                                                                               Estimated take as
                  Species                         Expected occurrence        Total estimated    a percentage of
                                                                                   take            population
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Harbor seal................................  237 seals per day............              1,896                 <7
California sea lion *......................  14 over project duration.....                 14                 <1
Harbor porpoise............................  1 porpoise per day...........                  8                 <1
Bottlenose dolphin.........................  Up to 8 dolphins once per                      8                 <2
                                              month.
Gray whale **..............................  2 whales over project                          2                 <1
                                              duration.
Northern elephant seal.....................  1 seal every 3 days..........                  3                 <1
Northern fur seal ***......................  3 seals over project duration                  3                 <1
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* Takes of California sea lion are calculated to account for up to 2 days with a maximum of four individuals per
  day, based on previous observations, and 6 days of one individual per day.
** The initial IHA authorized 2 takes by Level B harassment of gray whale. No gray whale takes have occurred,
  and given the already very low number of takes previously authorized (2 animals), NMFS has authorized 2 takes
  of gray whale in this renewal IHA, rather than a proportion of the initial takes.
*** Takes of northern fur seal are calculated using the same proportions as the initial IHA, which is based on a
  maximum of 10 individuals per 30 days.

Description of Mitigation, Monitoring, and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the initial IHA, 
and the discussion of the least practicable adverse impact included in 
that document and the notice of the proposed IHA remains accurate. The 
following measures are included in the renewal IHA, Chevron will:
     Employ at least two protected species observers (PSOs) to 
monitor the full shutdown zones, the Level B harassment zones to the 
extent practicable, and implement pre- and post-clearance monitoring;
     Implement a minimum shutdown zone of 10 meters for in-
water construction activities;
     Shut down if marine mammals come within the designated 
hearing group-specific shutdown zones;
     Shut down if any species for which take has not been 
authorized enters the Level B harassment zone;
     Submit a draft monitoring report to NMFS within 90 days of 
completion of marine mammal monitoring or 60 days prior to issuance of 
any subsequent IHA for this project, whichever comes first;
     Prepare and submit a final report within thirty days 
following resolution of comments on the draft report from NMFS;
     Submit all PSO datasheets and/or raw sighting data (in a 
separate file from the Final Report referenced immediately above); and
     Report injured or dead marine mammals.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to Chevron was 
published in the Federal Register on April 11, 2024 (89 FR 25573). That 
notice either described, or referenced descriptions of, Chevron's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated amount and manner of take, and proposed mitigation, 
monitoring and reporting measures. NMFS received no public comments.

Determinations

    The renewal request consists of a subset of activities analyzed 
through the initial authorization described above. In analyzing the 
effects of the activities for the initial IHA, NMFS determined that 
Chevron's activities would have a negligible impact on the affected 
species or stock and that authorized take

[[Page 46072]]

numbers of each species or stock were small relative to the relevant 
stocks (e.g., less than one-third the abundance of all stocks). The 
mitigation measures and monitoring and reporting requirements as 
described above are identical to the initial IHA.
    NMFS has 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 effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the authorized takes represent small 
numbers of marine mammals relative to the affected stock abundances; 
(4) Chevron's activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no relevant subsistence uses of 
marine mammals are implicated by this action; and (5) appropriate 
monitoring and reporting requirements are included.

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 
renewal) 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 
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 determined that the issuance of the initial IHA 
qualified to be categorically excluded from further NEPA review. NMFS 
has determined that the application of this categorical exclusion 
remains appropriate for this renewal IHA.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Renewal

    NMFS has issued a renewal IHA to Chevron for the take of marine 
mammals incidental to conducting pile extraction activities in San 
Francisco Bay from June 1, 2024, through May 31, 2025.

    Dated: May 21, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-11533 Filed 5-24-24; 8:45 am]
BILLING CODE 3510-22-P