Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Chevron Richmond Refinery Long Wharf Maintenance and Efficiency Project in San Francisco Bay, California, 26962-26969 [2020-09630]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 88 (Wednesday, May 6, 2020)]
[Notices]
[Pages 26962-26969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09630]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XR110]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Chevron Richmond Refinery 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; request for comments on proposed Renewal incidental 
harassment authorization.

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SUMMARY: NMFS received a request from Chevron Products Company 
(Chevron) for the Renewal of their currently active incidental 
harassment authorization (IHA) to take marine mammals incidental to the 
Long Wharf Maintenance and Efficiency Project (LWMEP) in San Francisco 
Bay, California. These activities consist of activities that are 
covered by the current authorization but will not be completed prior to 
its expiration. Pursuant to the Marine Mammal Protection Act, prior to 
issuing the currently active IHA, NMFS requested comments on both the 
proposed IHA and the potential for renewing the 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 21, 
2020.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent 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 received electronically, including 
all attachments, must not exceed a 25-megabyte file size. All comments 
received are a part of the public record and will generally be posted 
online at https://www.fisheries.noaa.gov/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.

FOR FURTHER INFORMATION CONTACT: Bonnie DeJoseph, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the proposed and final authorizations for 
both the 2019 and 2018 IHAs, and the 2019 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 above.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (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 issued or, if the taking is

[[Page 26963]]

limited to harassment, a notice of a proposed incidental take 
authorization 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 such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 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 one year for each reauthorization. In the notice of proposed IHA 
for the 2019 authorization, 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-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, or nearly identical, activities as 
described in the Description of the Specified Activities and 
Anticipated Impacts section of this notice is planned or (2) the 
activities as described in the Description of the Specified Activities 
and Anticipated Impacts section of this notice would not be completed 
by the time the IHA expires and a Renewal would allow for completion of 
the activities beyond that described in the Dates and Duration section 
of this notice, provided all of the following conditions are met:
     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 one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for Renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    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: 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 2019 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.
    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations indicated above and 
amended the definition of ``harassment'' as it applies to a ``military 
readiness activity.''

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 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment 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 has determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review.

History of Request

    On June 19, 2019, NMFS issued an IHA to Chevron Products Company to 
take marine mammals incidental to Chevron Richmond Refinery Long Wharf 
Maintenance and Efficiency Project (LWMEP) in San Francisco Bay, 
California (84 FR 28474; June 19, 2019), effective from June 1, 2019 
through May 31, 2020. On January 30, 2020, NMFS received a request for 
the Renewal of this 2019 IHA. As described in the request for Renewal 
IHA, the activities for which incidental take is requested consist of 
activities that are covered by the initial 2019 IHA but will not be 
completed prior to its expiration. As required, the applicant also 
provided a preliminary monitoring report (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-chevron-long-wharf-maintenance-and-efficiency-project-san-0) 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.
    Of note, NMFS previously issued an IHA to Chevron for similar work 
(82 FR 27240; June 14, 2017). However, the construction schedule and 
scope was revised and no work was conducted under that IHA. NMFS issued 
a second IHA on June 1, 2018 to Chevron for work not conducted in 2017 
(83 FR 27548; June 13, 2018). Because the activities addressed in the 
2019 IHA were very similar to those analyzed in the 2018 IHA, the 
Federal Register Notices supporting the 2019 IHA refer back to the 
Federal Register Notices supporting the 2018 IHA for more detailed 
descriptions.

Description of the Specified Activities and Anticipated Impacts

    Chevron will be unable to complete all of the planned work in the 
2019 IHA at the Richmond Refinery Long Wharf

[[Page 26964]]

(Long Wharf) before the expiration date of May 31, 2020 and, therefore, 
they have requested a Renewal IHA to authorize take of marine mammals 
for the subset of the initially planned work that could not be 
completed. These planned construction activities would allow Chevron to 
comply with Marine Oil Terminal Engineering and Maintenance Standards 
(MOTEMS) and to improve safety and efficiency at the Long Wharf. The 
work would be identical to a subset of the activities analyzed in the 
2019 IHA and include both vibratory and impact pile driving for removal 
and installation of piles. Chevron installed 46 piles and removed 10 
piles (of which 8 were temporary and removed shortly after 
installation) over approximately 18 construction days under the 2019 
IHA, leaving 69 piles remaining to be installed and up to109 piles to 
be removed in the June 1 to November 30, 2020 construction window. 
Similarly, the mitigation and monitoring would be identical to that 
included in the 2019 IHA. All documents associated with the 2019 IHA 
(i.e., the IHA application, Proposed IHA, Final IHA, public comments, 
monitoring reports, etc.) can be found on NMFS's website, https://www.fisheries.noaa.gov/action/incidental-take-authorization-chevron-long-wharf-maintenance-and-efficiency-project-san-0. All documents 
associated with the 2018 IHA (which are sometimes referenced in the 
Federal Register Notices supporting the 2019 IHA) can be found at: 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-chevron-long-wharf-maintenance-and-efficiency-project-san.
    Anticipated impacts, which would include both Level A and Level B 
harassment of marine mammals, would also be identical to those analyzed 
and authorized in the 2019 IHA (though fewer, since from a subset of 
activities). Species with the expected potential to be present during 
all or a portion of the in-water work window include the Gray whale 
(Eschrichtius robustus), Bottlenose dolphin (Tursiops truncates), 
harbor porpoise (Phocoena phocoena), California sea lion (Zalophus 
californianus), Northern fur seal (Callorhinus ursinus), Pacific harbor 
seal (Phoca vitulina richardii), and Northern elephant seal (Mirounga 
angustirostris). Monitoring results of the 2019 construction activities 
(Table 1) indicate that observed exposures above Level A and Level B 
harassment thresholds (see monitoring report) were below the amount 
authorized in association with the amount of work conducted; thus, the 
subset of Level A and Level B take remaining from that authorized under 
the 2019 IHA will be sufficient to cover the 2020 pile installation and 
removal activities.

  Table 1--Take Authorized in 2019 IHA and Take Documented by Species and Stock in the 2019 Construction Window
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                                                                                    Documented      Documented
            Species                   Stock         Authorized      Authorized     2019 Level A    2019 Level B
                                                   Level A takes   Level B takes       take            take
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Harbor seal...................  California......             513           6,572               0          \a\ 94
California sea lion...........  Eastern U.S.....  ..............             479               0           \b\ 1
Harbor porpoise...............  San Francisco--                4             509               0           \c\ 2
                                 Russian River.
Northern elephant seal........  California        ..............              23               0               0
                                 Breeding.
Gray whale....................  Eastern North     ..............               2               0               0
                                 Pacific.
Northern fur seal.............  California......  ..............              10               0               0
Bottlenose Dolphin............  California        ..............              30               0               0
                                 Coastal.
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\a\ Sum of oberserved (48) and extrapolated (46).
\b\ No take extrapolated. Only one sea lion was observed sitting on a moving tug outside of construction
  activity.
\c\ Sum of observed (1) and extrapolated (1).

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed here may be found in the Notices of the Proposed and 
Final IHAs for the 2019 authorization. The work would be identical to a 
subset of the activities analyzed in the 2019 IHA and include both 
vibratory and impact pile driving for removal and installation of 
piles.
    All piles for which take was authorized in the 2019 IHA were 
expected to be installed/removed during the 2019 in-water work window 
from June 1 to November 30, 2019. However, due to construction schedule 
delays, designated work was only conducted on 18 of the estimated 67 
days of pile driving activity planned in the 2019 IHA. Table 2 shows 
the work completed in 2019 and the remaining subset of work to be 
covered under this Renewal. Identical to the 2019 IHA, pile driving 
activities would be timed to occur within the standard NMFS work 
windows for Endangered Species Act (ESA)-listed fish species (June 1 
through November 30). The proposed Renewal would be effective for a 
period of one year from the date of issuance.

                      Table 2-- Pile Installations Completed in 2019 and Remaining Subset Planned for the 2020 Construction Window
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                                                                                            Number of    Number of piles      Number
                                                                               Number of      piles       requested in      installed/       Number of
                Pile type                           Pile driver type           piles 2019   completed     2020 Renewal      removed per    driving days
                                                                                  IHA        in 2019       application       day 2020          2020
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60-inch steel pipe piles.................  Impact...........................            8            0                 8               1               8
36-inch steel template pile (Installation  Vibratory........................            8            8                 0  ..............               0
 and removal).
20-inch steel template pile (Installation  Vibratory........................            8            8                 0  ..............               0
 and removal).

[[Page 26965]]

 
22-inch concrete pile removal............  Vibratory........................            5            2                 3               5               1
24-inch square concrete..................  Impact...........................           39           30                 9               2               5
12-inch composite piles..................  Vibratory........................           52            0                52               5              11
Timber pile removal......................  Vibratory........................          106            0               106              12               9
                                          --------------------------------------------------------------------------------------------------------------
    Total................................  .................................          226       \*\ 48               178              NA              34
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*46 piles were installed and 2 other piles were removed. Eight of the 46 piles were temporary and removed shortly after installation. Thus, a total of
  48 piles were utilized in construction activities during 2019, in which 46 pile installations and 10 pile removals were monitored, as required by the
  initial IHA.

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 2019 authorization. NMFS 
has reviewed the monitoring data from the 2019 IHA, recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
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 2019 IHA. The only change 
from the 2019 IHA is a reduction of the San Francisco--Russian River 
harbor porpoise and the U.S. California sea lion estimated stocks from 
9,886 to 7,524 and 296,750 to 257,606, respectively (Carretta et al. 
2019). Preliminary determinations conclude that these updates do not 
change our findings.

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 
proposed here may be found in the in the Federal Register notice of the 
issuance of the 2018 IHA for Chevron's Long Wharf Maintenance and 
Efficiency project (83 FR 27548; June 13, 2018) and the Federal 
Register notice of the proposed IHA (83 FR 18802; April 30, 2018). NMFS 
has reviewed the monitoring data from the 2019 IHA, recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and other scientific literature, and determined that neither this nor 
any other new information affects our initial analysis of impacts on 
marine mammals and their habitat.

Estimated Take

    As stated above in the Description of the Specified Activities and 
Anticipated Impacts section, the purpose of this Renewal IHA is to 
authorize take of marine mammals for the subset of the initially 
planned work that could not be completed before the expiration of the 
2019 IHA, May 31, 2020. The subset of work completed in 2019 and that 
left to be completed during the 2020 construction window is listed in 
Table 2.
    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 2019 authorization. Specifically, the 
source levels, in-water construction window, and marine mammal density 
data applicable to this authorization remain unchanged from the 
previously issued IHA, just the new, lesser, remaining levels of 
activity have been applied. Similarly, the stocks taken, methods of 
take, and types of take remain unchanged from the previously issued 
IHA.

                              Table 3--Authorized Take of Stocks, Renewal IHA 2020
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                                                                                    Authorized      Authorized
                    Species                                   Stock                Level A take    Level B take
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Harbor seal...................................  California......................           * 513           5,114
California sea lion...........................  Eastern U.S.....................  ..............             302
Harbor porpoise...............................  San Francisco--Russian River....             * 4             321
Northern elephant seal........................  California Breeding.............  ..............              11
Gray whale....................................  Eastern North Pacific...........  ..............               2
Northern fur seal.............................  California......................  ..............              10
Bottlenose Dolphin............................  California Coastal..............  ..............              17
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* Level A take is associated with impact pile driving of 60-inch steel pipe, which was not conducted in 2019 as
  planned and is part of the subset of work to be completed in 2020.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed 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 
2019 IHA, and the discussion of the least practicable adverse impact 
included in that document remains accurate. The following measures are 
proposed for this renewal:
Proposed Mitigation
    Time Restrictions--For all in-water pile driving activities, 
Chevron must

[[Page 26966]]

operate only during daylight hours (7 a.m. to 7 p.m.).
    Attenuation Devices--Chevron must implement the use of bubble 
curtains during impact driving of 60-inch steel piles and 24-inch 
square concrete piles and operate it in a manner consistent with the 
following performance standards: (1) The bubble curtain must distribute 
air bubbles around 100 percent of the piling perimeter for the full 
depth of the water column. (2) The lowest bubble ring must be in 
contact with the mudline for the full circumference of the ring, and 
the weights attached to the bottom ring must ensure 100 percent mudline 
contact. No parts of the ring or other objects shall prevent full 
mudline contact. (3) Air flow to the bubblers must be balanced around 
the circumference of the pile.
    Establishment of Shutdown Zone--For all pile driving and extraction 
activities Chevron must implement and monitor shutdown zones. See Table 
4 for minimum radial distances required for shutdown zones.

                                   Table 4--Radial Distance to Shutdown Zones
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                                                                      Shutdown zones meters
                                                ----------------------------------------------------------------
  Project element requiring pile installation        Low-         Mid-        High-
                                                  frequency    frequency    frequency      Phocid      Otariid
                                                  cetaceans    cetaceans    cetaceans    pinnipeds    pinnipeds
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Attenuated Impact Driving (with bubble
 curtain):
    60-inch steel pipe.........................          840           30           50           30           35
    24-inch square concrete....................           20           10           50           15           10
Impact Pile Proofing (no bubble curtain):
    36-inch steel pipe pile....................          100           10           80           30           10
Vibratory Driving/Extraction:
    12-inch Composite Barrier Pile.............           20           10           50           15           10
    36-inch steel pipe pile....................           20           10           50           15           10
    20-inch steel pipe pile....................           10           10           50           10           10
    Wood and concrete pile extraction..........           10           10           50           10           10
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    Establishment of Monitoring Zones for Level A and Level B--Chevron 
must establish and monitor Level A harassment zones during impact 
driving for harbor seal extending to 450 meters and for harbor porpoise 
extending to 990 meters. Chevron must also establish and monitor Level 
B harassment zones as depicted in Table 5.

              Table 5--Radial Distances to Monitoring Zones
------------------------------------------------------------------------
                                                  Distance to threshold
                   Pile type                    160/120 dB RMS (Level B)
                                                        in meters
------------------------------------------------------------------------
Attenuated Impact Driving (with bubble
 curtain):
    60-inch steel pipe (1 per day)............                       740
    24-inch square concrete (1-2 per day).....                        75
Impact Pile Proofing (no bubble curtain):
    36-inch steel pipe pile (2 total).........                     1,000
Vibratory Driving/Extraction:
    12-Inch Composite Barrier Piles (5 per                        15,850
     day).....................................
    36-inch steel pipe pile (4 per day).......                    21,545
    20-inch steel pipe pile (4 per day).......                     7,360
    Wood and concrete pile extraction (12 per                      1,360
     day).....................................
------------------------------------------------------------------------

    Soft Start--Chevron must use soft start techniques when impact pile 
driving. Chevron must provide an initial set of strikes at reduced 
energy, followed by a 30-second waiting period, then two subsequent 
reduced energy strike sets. Soft start must 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 thirty minutes or longer.
    Pre-Activity Monitoring--Pre-activity monitoring must take place 
from 30 minutes prior to initiation of pile driving activity and post-
activity monitoring must continue through 30 minutes post-completion of 
pile driving activity. Pile driving may commence at the end of the 30-
minute pre-activity monitoring period, provided observers have 
determined that the shutdown zone is clear of marine mammals, which 
includes delaying start of pile driving activities if a marine mammal 
is sighted in the zone, as described below.
    If a marine mammal approaches or enters the shutdown zone during 
activities or pre-activity monitoring, all pile driving activities at 
that location must be halted or delayed, respectively. If pile driving 
is halted or delayed due to the presence of a marine mammal, the 
activity may not resume or commence until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
or 15 minutes have passed without re-detection of the animal. 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 thirty minutes.
    10-Meter Shutdown Zone--During the in-water operation of heavy 
machinery (e.g., barge movements), a 10-m shutdown zone for all marine 
mammals must be implemented. If a marine mammal comes within 10 m, 
operations must cease and vessels must reduce speed to the minimum 
level required to maintain steerage and safe working conditions.
    Non-authorized Take Prohibited--If a species for which 
authorization has not been granted or a species for which

[[Page 26967]]

authorization has been granted but the authorized takes are met, is 
observed approaching or within the monitoring zone, pile driving and 
removal activities must shut down immediately using delay and shut-down 
procedures. Activities must not resume until the animal has been 
confirmed to have left the area or an observation time period of 15 
minutes without re-sighting has elapsed.
Proposed Monitoring Measures
    Visual Marine Mammal Observation--the following visual monitoring 
measures must be implemented:
    Baseline biological monitoring must occur within one week before 
the project's start date.
    Monitoring distances, in accordance with the identified shutdown 
zones, Level A and Level B zones, must be determined by using a range 
finder, scope, hand-held global positioning system (GPS) device or 
landmarks with known distances from the monitoring positions.
    Monitoring locations must be established at locations offering best 
views of the monitoring zone. One protected species observer (PSO) must 
be stationed at the north end of the wharf monitoring the entire 
observable area with a special focus on the section between Castro 
Rocks and the wharf.
    At least two PSOs must be actively scanning the monitoring zone 
during all pile driving activities.
    Observers must record all incidents of marine mammal occurrence, 
regardless of distance from activity, and must document any behavioral 
reactions in concert with distance from piles being driven or removed.
    Monitoring must be continuous unless the contractor takes a break 
longer than 2 hours from active pile and sheet pile driving, in which 
case monitoring must be required 30 minutes prior to restarting pile 
installation.
    For in-water pile driving, under conditions of fog or poor 
visibility that might obscure the presence of a marine mammal within 
the shutdown zone or Level A zone, the pile in progress must be 
completed and then pile driving suspended until visibility conditions 
improve.
    Monitoring of pile driving must be conducted by qualified PSOs, who 
must have no other assigned tasks during monitoring periods. Chevron 
must adhere to the following conditions when selecting observers: (1) 
Independent PSOs must be used (i.e., not construction personnel); (2) 
At least one PSO must have prior experience working as a marine mammal 
observer during construction activities; (3) Other PSOs may substitute 
education (degree in biological science or related field) or training 
for experience; and (4) Chevron must submit PSO CVs for approval by 
NMFS.
    Chevron must ensure that observers have the following additional 
qualifications: (1) Ability to conduct field observations and collect 
data according to assigned protocols; (2) Experience or training in the 
field identification of marine mammals, including the identification of 
behaviors; (3) Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations; (4) 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 (5) 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.
    Hydroacoustic Monitoring--Sound Source Verification (SSV) testing 
must be conducted as stipulated in the Hydroacoustic Monitoring Plan. 
Acoustic monitoring must be conducted on the following: (1) Acoustic 
monitoring for at least two timber piles (vibratory); (2) Acoustic 
monitoring for at least four 24-inch square concrete piles (impact); 
(3) Acoustic monitoring for at least two 20-inch steel piles 
(vibratory); (4) Acoustic monitoring for at least two 36-inch steel 
piles (vibratory); (5) Acoustic monitoring for at least two 60-inch 
steel piles (impact); and (6) Acoustic monitoring of two 12-inch 
composite piles (vibratory).
    Testing must be conducted by an acoustical firm with prior 
experience conducting SSV testing. Final results must be sent to NMFS 
and may be used to establish shutdown and monitoring isopleths. Any 
alterations to the shutdown or monitoring zones based on testing data 
must be approved by NMFS.
Reporting
    Marine Mammal Monitoring--A draft marine mammal monitoring report 
must be submitted to NMFS within 90 days after the completion of pile 
driving and removal activities or a minimum of 60 days prior to any 
subsequent IHAs. A final report must be prepared and submitted to NMFS 
within 30 days following receipt of comments on the draft report from 
NMFS.
    The report must include an overall description of work completed, a 
narrative regarding marine mammal sightings, and associated marine 
mammal observation data sheets. Specifically, the report must include: 
(1) Dates and times (begin and end) of all marine mammal monitoring; 
(2) Construction activities occurring during each daily observation 
period, including how many and what type of piles were removed or 
driven and by what method (i.e., impact, vibratory, drilling); (3) 
Weather parameters and water conditions during each monitoring period 
(e.g., wind speed, percent cover, visibility, sea state); (4) The 
number of marine mammals observed, by species, relative to the pile 
location and if pile removal or installation was occurring at time of 
sighting; (5) Age and sex class, if possible, of all marine mammals 
observed; (6) PSO locations during marine mammal monitoring; (7) 
Distances and bearings of each marine mammal observed to the pile being 
removed or driven for each sighting (if pile removal or installation 
was occurring at time of sighting); (8) Description of any marine 
mammal behavior patterns during observation, including direction of 
travel; (9) Number of individuals of each species (differentiated by 
month as appropriate) detected within the monitoring zone, and 
estimates of number of marine mammals taken, by species; (10) Detailed 
information about any implementation of any mitigation triggered (e.g., 
shutdowns and delays), a description of specific actions that ensued, 
and resulting behavior of the animal, if any; (11) Description of 
attempts to distinguish between the number of individual animals taken 
and the number of incidences of take, such as ability to track groups 
or individuals; and (12) Level B harassment exposures recorded by PSOs 
must be extrapolated based upon the number of observed takes and the 
percentage of the Level B harassment zone that was not visible.
    Injury, Serious Injury, or Mortality--In the unanticipated event 
that the specified activity clearly causes the take of a marine mammal 
in a manner prohibited by the IHA, such as an injury, serious injury or 
mortality, Chevron would immediately cease the specified activities and 
report the incident to the Chief of the Permits and Conservation 
Division, Office of Protected Resources, NMFS (301-427-8701), and the 
West Coast Regional Stranding Coordinator (562-980-3230). The report 
must include the following: (1) Description of the incident; (2)

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Environmental conditions (e.g., Beaufort sea state, visibility); (3) 
Description of all marine mammal observations in the 24 hours preceding 
the incident; (4) Species identification or description of the 
animal(s) involved; (5) Fate of the animal(s); and (6) Photographs or 
video footage of the animal(s) (if equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with Chevron to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Chevron would not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that Chevron discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition as described in the next paragraph), 
Chevron would immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the West Coast Regional Stranding Coordinator. The report would 
include the same information identified in section above. Activities 
would be able to continue while NMFS reviews the circumstances of the 
incident. NMFS would work with Chevron to determine whether 
modifications in the activities are appropriate.
    In the event that Chevron discovers an injured or dead marine 
mammal and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Chevron would report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator within 24 hours of the discovery. Chevron would provide 
photographs or video footage (if available) or other documentation of 
the stranded animal sighting to NMFS and the Marine Mammal Stranding 
Network.

Public Comments

    As noted previously, NMFS published a notice of a proposed IHA (84 
FR 17788; April 26, 2019) and solicited public comments on both our 
proposal to issue the 2019 IHA for pile driving and extraction 
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 2019 IHA (84 FR 28474; June 19, 2019). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
Renewal of the 2019 IHA.
    Comment: The Commission recommended that NMFS refrain from 
implementing its proposed renewal process for Chevron's subsequent 
authorizations. The Commission believes that the renewal process should 
be used sparingly and selectively, by limiting its use only to those 
proposed IHAs that are expected to have the lowest levels of impacts to 
marine mammals and that require the least complex analyses. Also, the 
Commission recommended that NMFS provide the Commission and other 
reviewers the full 30-day comment opportunity set forth in section 
101(a)(5)(D)(iii) of the MMPA.
    Response: The Commission has submitted this comment multiple times, 
and NMFS has responded multiple times, including, for example, more 
recently in the notice of issuance of an IHA to Avangrid Renewables (84 
FR 31032, June 28, 2019), and we refer the Commission to those 
responses. We also include NMFS' original response to the comment 
received on the 2019 Chevron proposed IHA here:
    Regarding the Commission's comment that Renewal IHAs should be 
limited to certain types of projects NMFS has explained on its website 
and in individual Federal Register notices that Renewal IHAs are 
appropriate where the continuing activities are identical, nearly 
identical, or a subset of the activities for which the initial 30-day 
comment period applied. If Chevron seeks to obtain a Renewal IHA in the 
future, NMFS will determine at that time whether the request meets the 
necessary conditions under which a Renewal IHA could be considered.
    NMFS has taken a number of steps to ensure the public has adequate 
notice, time, and information to be able to comment effectively on 
Renewal IHAs within the limitations of processing IHA applications 
efficiently. Federal Register notices for the proposed initial IHAs 
identified the conditions under which a one-year Renewal IHA might be 
appropriate. This information is presented in the Request for Public 
Comments section and thus encourages submission of comments on the 
potential of a one-year renewal as well as the initial IHA during the 
30-day comment period. In addition, when we receive an application for 
a Renewal IHA, we will publish notice of the proposed IHA Renewal in 
the Federal Register and provide an additional 15 days for public 
comment, making a total of 45 days of public comment. We also directly 
contact all commenters on the initial IHA by email, phone, or, if the 
commenter did not provide email or phone information, by postal service 
to provide them the opportunity to submit any additional comments on 
the proposed Renewal IHA. Where the commenter has already had the 
opportunity to review and comment on the potential for a Renewal in the 
initial proposed IHA for these activities, the abbreviated additional 
comment period is sufficient for consideration of the results of the 
preliminary monitoring report and new information (if any) from the 
past year.

Preliminary Determinations

    The proposed action of this Renewal IHA, both vibratory and impact 
pile driving for removal and installation of piles, would be identical 
to a subset of the activities analyzed in the 2019 IHA, as listed in 
Table 2. Based on the analysis detailed in the Notice of the Final IHA 
for 2019 authorization, of the likely effects of the specified activity 
on marine mammals and their habitat, and taking into consideration the 
implementation of the monitoring and mitigation measures, NMFS found 
that the total marine mammal take from the activity will have a 
negligible impact on all affected marine mammal species or stocks.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the 2019 IHA. This includes consideration of the estimated 
abundance of harbor porpoise and California sea lion stock decreasing 
slightly. 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) 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.

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Endangered Species Act

    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 Chevron for conducting vibratory and impact pile 
driving for removal and installation of piles at the Long Wharf in San 
Francisco Bay, California during the in-water construction window of 
June 1 through November 30, 2020, provided the previously described 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed and final 2019 IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. 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: April 30, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-09630 Filed 5-5-20; 8:45 am]
 BILLING CODE 3510-22-P