Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Floating Dry Dock Project at Naval Base San Diego in San Diego, California, 57473-57479 [2022-20264]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 181 (Tuesday, September 20, 2022)]
[Notices]
[Pages 57473-57479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20264]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC360]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Floating Dry Dock Project at Naval 
Base San Diego in San Diego, 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 (IHA).

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SUMMARY: NMFS received a request from the U.S. Navy (Navy) for the 
renewal of their currently active IHA to take marine mammals incidental 
to the Floating Dry Dock Project at Naval Base San Diego in San Diego, 
California. These activities are nearly identical to those covered in 
the current 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 October 
5, 2022.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 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 or 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.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, 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 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 above.

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 issued or, if the taking is limited to harassment, an incidental 
harassment authorization 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''). 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 initial 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-time 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, 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).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation

[[Page 57474]]

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: 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.

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 (IHAs 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 
preliminarily determined that the issuance of the proposed IHA renewal 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA renewal request.

History of Request

    On May 27, 2020, NMFS issued an IHA to the Navy to take marine 
mammals incidental to in-water construction associated with the 
Floating Dry Dock Project at Naval Base San Diego in San Diego, 
California (85 FR 33129, June 1, 2020), effective from September 15, 
2020 through September 14, 2021 (hereafter referred to as the 2020 
IHA). On July 12, 2021, the Navy informed NMFS that the project had 
been delayed and none of the work identified in the initial IHA had 
occurred. The Navy requested an identical IHA be reissued with the 
effective dates 1 year later, in order to conduct the construction work 
that was analyzed and authorized through the previously issued IHA. On 
July 21, 2021, NMFS reissued the IHA to the Navy (86 FR 40468, July 28, 
2021), effective from September 15, 2021 through September 14, 2022 
(hereafter referred to as the initial IHA).
    On July 15, 2022, the Navy notified NMFS that the project had been 
further delayed and none of the work identified in the initial IHA had 
occurred. In addition, the Navy had made minor changes to the project 
design plan, which would result in fewer proposed days of in-water 
construction than what was planned and analyzed in the 2020 IHA and 
initial IHA. As described in the Description of the Specified 
Activities and Anticipated Impacts section below, the activities for 
which incidental take is requested are nearly identical to those 
covered in the initial IHA. In order to consider an IHA renewal, NMFS 
requires the applicant provide 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. However, as no construction activities have been 
conducted, the Navy has no monitoring results to report. NMFS has 
preliminarily determined that the minor changes to the Navy's proposed 
pile driving activities would not affect the previous analyses, 
including the mitigation, monitoring, and reporting requirements, or 
take estimates (with the exception of reducing the amount of estimated 
take due to fewer days of construction). However, NMFS is requesting 
comments or additional information that may further inform our proposal 
to issue an IHA renewal to the Navy.

Description of the Specified Activities and Anticipated Impacts

    The Navy proposes to construct a floating dry dock and associated 
pier-side access at Naval Base San Diego in the south-central portion 
of San Diego Bay. The floating dry dock is needed to ensure the Base's 
capability to conduct berth-side repair and maintenance of vessels. 
Implementation of the proposed project requires installation of two 
mooring dolphins, including vertical and angled structural piles, as 
well as fender piles, installation of a concrete ramp wharf and vehicle 
bridge, and dredging at the proposed floating dry dock location. The 
planned in-water construction covered in the initial IHA included 
installation of a maximum of 56 24-inch concrete piles using impact 
pile driving and high-pressure water jetting and a maximum of 10 24-
inch steel pipe piles using impact and vibratory pile driving. The 
Navy's revised construction design plan includes fewer 24-inch 
octagonal concrete piles and has eliminated all 24-inch steel pipe 
piles, while adding 18-inch square concrete piles, 18-inch octagonal 
concrete piles, and 14-inch steel H-piles (Table 1).
    The anticipated impacts of the Navy's proposed activities are 
identical to those described in the initial IHA. As in the initial IHA, 
NMFS anticipates that only the U.S. stock of California sea lions 
(Zalophus californianus) may be taken by Level B harassment incidental 
to underwater noise resulting from in-water construction associated 
with the proposed activities.
    The following documents are referenced in this notice and include 
important supporting information:
     Federal Register notice of proposed IHA for the 2020 IHA 
(85 FR 21179, April 16, 2020);
     Federal Register notice of final IHA for the 2020 IHA (85 
FR 33129, June 1, 2020);
     Federal Register notice of reissued IHA for the initial 
IHA (86 FR 40468, July 28, 2021); and
     The Navy's 2020 IHA application, references cited, request 
for reissued IHA, and request for IHA renewal (available at 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities).

Detailed Description of the Activity

    The Navy proposes to construct a floating dry dock and associated 
pier-side access in the south-central portion of San Diego Bay. The 
floating dry dock is needed in order to address current and projected 
shortfall of dry dock

[[Page 57475]]

space required for maintenance of the Pacific Fleet, and ensure the 
Naval Base San Diego's capability to conduct berth-side repair and 
maintenance of vessels. The proposed activities will allow for the 
emplacement and operation of a floating dry dock and associated pier-
side access at Marine Group Boat Works (MGBW) Commercial Out Lease 
(COL) in the southern edge of Naval Base San Diego.
    Up to 50 days of in-water pile driving were planned to occur under 
the initial IHA, which included installation of two mooring dolphins, 
including vertical and angled structural piles, as well as fender 
piles, and installation of a concrete ramp wharf and vehicle bridge. 
Two mooring dolphins would be located forward and aft of the proposed 
dry dock. The mooring dolphins would each be supported by up to 16 
vertical 24-inch octagonal concrete piles (32 total) installed using 
impact pile driving and high-pressure water jetting. The aft mooring 
dolphin would also require approximately two 24-inch angled steel pipe 
piles. Up to eight additional 24-inch steel pipe piles are anticipated 
to be required for the forward and aft mooring dolphins. Cast-in-place 
reinforced concrete caps, 9.1 by 9.1 meter (m; 30 by 30 feet (ft)), 
would be installed at each mooring dolphin location. Grippers would be 
secured to the dolphins' concrete pile caps and used to hold the 
floating dry dock in position. Construction materials would be 
delivered by truck and the piles would be installed using a floating 
crane and an impact or vibratory pile driver aided by jetting methods. 
Fender piles associated with the aft mooring dolphin would consist of 
two steel pipe piles, 24-inches in diameter or less. All steel pipe 
piles would initially be installed using vibratory pile driving, 
followed by the use of an impact pile driver. The concrete ramp wharf 
and vehicle bridge would be supported by 24 24-inch octagonal concrete 
piles installed using vibratory pile driving and high-pressure water 
jetting.
    The modified construction design plan proposed to occur under the 
renewal IHA includes the installation of a total of 55 concrete piles 
and 10 steel H-piles. Five concrete piles would also be removed (via 
dead pull with no vibratory hammer required) and 12 steel template H-
piles would be installed and subsequently removed using a vibratory 
hammer. A total of 77 piles would be installed (65 permanent, 12 
temporary) which is greater than the total number of piles planned to 
be installed under the initial IHA (Table 1); however, the revised 
construction plan includes a reduction in diameter for the majority of 
piles as assessed in the initial IHA. Therefore, the modified 
construction plan is reasonably similar to the plan associated with the 
initial IHA. In addition, the Navy had estimated up to 50 days of in-
water work would be required to complete the planned construction in 
the initial IHA, and the revised construction design would require only 
40 days of construction, beginning in April 2023.

 Table 1--Summary of Pile Driving Activities in Initial IHA Compared to Proposed Pile Driving Activities in IHA
                                                     Renewal
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                                                                                          Number of piles
                                                                                 -------------------------------
              Pile type and size                          Pile location                            Proposed IHA
                                                                                    Initial IHA       renewal
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24-inch octagonal concrete....................  Forward and aft mooring dolphins              56          \a\ 22
24-inch steel pipe............................  Forward and aft mooring dolphins              10               0
18-inch square concrete.......................  Bulkhead........................               0           \b\ 5
18-inch octagonal concrete....................  Ramp wharf and vehicle bridge...               0              33
14-inch steel H-piles.........................  Fender system on the offshore                  0              10
                                                 dolphin.
14-inch template steel H-piles................  Forward and aft mooring dolphins               0          \c\ 12
                                                                                 -------------------------------
    Total piles installed.....................  ................................              66          \d\ 77
    Total maximum days of work................  ................................              50              40
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\a\ This includes 11 piles per dolphin.
\b\ Removed using direct pull only.
\c\ Installed and subsequently removed. Includes 6 piles per dolphin.
\d\ Includes 65 permanent piles and 12 temporary piles.

    A detailed description of the construction activities for which 
authorization of take is proposed here may be found in the Federal 
Register notice of proposed IHA for the 2020 IHA (85 FR 21179, April 
16, 2020). With the exception of some reduced pile sizes and change 
from steel pipe piles to steel H-piles, the methods of pile driving 
(i.e., vibratory and impact hammers, high-pressure water jetting) 
proposed in the IHA renewal are identical to those analyzed in the 
initial IHA. Similarly, the location and timing (e.g., seasonality) are 
identical to those analyzed in the initial IHA. The proposed IHA 
renewal would be effective from the date of issuance through September 
14, 2023.

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 
Federal Register notice of the proposed IHA for the 2020 IHA (85 FR 
21179, April 16, 2020). NMFS has reviewed recent draft Stock Assessment 
Reports, information on relevant Unusual Mortality Events, and other 
scientific literature, and preliminarily 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.

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 the 
authorization of take is proposed here may be found in the Federal 
Register notice of the proposed IHA for the 2020 IHA (85 FR 21179, 
April 16, 2020). The Navy's revised construction design plan includes 
some pile sizes and types that were not included in the initial IHA 
(e.g., addition of 18-inch octagonal piles and 14-inch steel H-piles). 
However, the estimated sound source levels for the

[[Page 57476]]

smaller (18-inch) concrete piles and the steel H-piles are lower than 
the source levels for the larger (24-inch) concrete piles and the 24-
inch steel pipe piles, respectively, that were planned to be used 
during the activity described in the initial IHA (described in detail 
in the Navy's IHA renewal request, available at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities). Therefore, NMFS has preliminarily determined 
that the effects of the Navy's proposed installation of these new pile 
sizes and types on marine mammals and their habitat are the same as 
those analyzed in the initial IHA. Additionally, NMFS has reviewed 
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

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
notices for the proposed and final 2020 IHA (85 FR 21179, April 16, 
2020; 85 FR 33129, June 1, 2020). The marine mammal occurrence data 
applicable to this authorization remain unchanged from the previously 
issued IHA. Similarly, the stocks taken, methods of take, and types of 
take remain unchanged from the previously issued IHA. The take 
calculation method also remains the same as for the initial IHA, with 
the exception of fewer days of activity than what was described in the 
initial IHA.
    The initial IHA estimated the distances to the Level B harassment 
thresholds for each pile size and type that was planned to be included 
in the initial construction plan. In the initial IHA, the largest Level 
B harassment zone resulted from vibratory installation of 24-inch steel 
pipe piles (1,848 m). However, since 24-inch steel pipe piles are no 
longer proposed to be installed, the largest Level B harassment zone 
now results from vibratory installation of 14-inch steel H-piles (398 
m).
    Based on the number of piles to be installed, the Navy estimates 
that the proposed pile driving activity would take 40 days (Table 1). 
As in the initial IHA, the Navy estimates four California sea lions 
could be present in the project area each day. Multiplication of the 
above estimate of animals per day (4) times the days of work (40) 
results in a proposed 160 incidents of Level B harassment take of 
California sea lions (Table 2). The Navy intends to avoid Level A 
harassment take by shutting down activities if a California sea lion 
approaches within 25 m of the project site, which encompasses all 
estimated Level A harassment zones. Therefore, no take by Level A 
harassment is anticipated or proposed to be authorized.

                             Table 2--Estimated Take Proposed for Authorization and Proportion of Stock Potentially Affected
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                                                                                      Estimated daily   Proposed take    Proposed take
                              Species                                    Days of       occurrence  (#     by Level B       by Level A       Percent of
                                                                         activity         per day)        harassment       harassment         stock
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California sea lion (Zalophus californianus) U.S. Stock............              40                4              160                0             0.06
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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 
2020 IHA (85 FR 33129, June 1, 2020), and the discussion of the least 
practicable adverse impact included in that document remains accurate. 
The following measures are proposed for this renewal:
Mitigation
    The Navy would conduct briefings between construction supervisors 
and crews and the marine mammal monitoring team prior to the start of 
all pile driving activity, and when new personnel join the work, to 
explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    For in-water heavy machinery work other than pile driving (e.g., 
standard barges, etc.), if a marine mammal comes within 10 m, 
operations would cease and vessels would reduce speed to the minimum 
level required to maintain steerage and safe working conditions. This 
type of work could include the following activities: (1) movement of 
the barge to the pile location; or (2) positioning of the pile on the 
substrate via a crane (i.e., stabbing the pile).
    Though not required, Navy has indicated that in-water pile driving 
would only be conducted at least 30 minutes after sunrise and up to 30 
minutes before sunset, when visual monitoring of marine mammals can be 
conducted.
    For those marine mammals for which Level B harassment take has not 
been requested, in-water pile driving would shut down immediately if 
such species are observed within or entering the monitoring zone (i.e., 
Level B harassment zone). If take reaches the authorized limit for an 
authorized species, pile installation would be stopped as these species 
approach the Level B harassment zone to avoid additional take.
    Establishment of Shutdown Zone for Level A Harassment--For all pile 
driving activities, the Navy would establish a shutdown zone. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of activity would occur upon sighting of a marine mammal (or 
in anticipation of an animal entering the defined area). Conservative 
shutdown zones of 25 m for impact and vibratory pile driving activities 
would be implemented for California sea lions. The placement of 
protected species observers (PSOs) during all pile driving activities 
(described in detail in the Monitoring section below) would ensure 
shutdown zones are visible.
    Establishment of Monitoring Zones for Level B Harassment--The Navy 
would establish monitoring zones corresponding with the estimated Level 
B harassment zones. 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 area outside the shutdown 
zone and thus prepare for a potential cessation of activity should the 
animal enter the shutdown zone.

[[Page 57477]]



    Table 3--Monitoring and Shutdown Zones for Each Project Activity
------------------------------------------------------------------------
                                            Monitoring     Shutdown zone
                 Source                      zone (m)           (m)
------------------------------------------------------------------------
Impact Pile Driving 24-inch octagonal                120              25
 concrete piles.........................
Impact Pile Driving 18-inch octagonal                 25              25
 concrete piles.........................
Vibratory Pile Driving 14-inch steel H-              400              25
 piles..................................
------------------------------------------------------------------------

    Soft Start--The use of soft-start procedures is believed to 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. For impact pile driving, contractors would 
be required to provide an initial set of strikes from the hammer at 
reduced energy, with each strike followed by a 30-second waiting 
period. This procedure would be conducted a total of three times before 
impact pile driving begins. Soft start would 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. 
Soft start would not be required during vibratory pile driving 
activities.
    Pre-Activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving of 30 
minutes or longer occurs, PSOs would observe the shutdown and 
monitoring zones for a period of 30 minutes. The shutdown zone would be 
considered cleared when a marine mammal has not been observed within 
the zone for that 30-minute period. If a marine mammal is observed 
within the shutdown zone, a soft-start would not proceed until the 
animal has left the zone or has not been observed for 15 minutes. If 
the Level B harassment zone has been observed for 30 minutes and 
species with no take authorization are not present within the zone, 
soft start procedures can commence and work can continue even if 
visibility becomes impaired within the Level B harassment monitoring 
zone. When a marine mammal for which take by Level B harassment is 
authorized is present in the Level B harassment zone, activities may 
begin and Level B harassment take would be recorded. If work ceases for 
more than 30 minutes, the pre-activity monitoring of both the Level B 
harassment and shutdown zone would commence again.
Monitoring
    Marine Mammal Visual Monitoring - Monitoring would be conducted by 
NMFS-approved observers. Trained observers would be placed from the 
best vantage point(s) practicable to monitor for marine mammals and 
implement shutdown or delay procedures when applicable through 
communication with the equipment operator. Observer training would be 
provided prior to project start, and would include instruction on 
species identification (sufficient to distinguish the species in the 
project area), description and categorization of observed behaviors and 
interpretation of behaviors that may be construed as being reactions to 
the specified activity, proper completion of data forms, and other 
basic components of biological monitoring, including tracking of 
observed animals or groups of animals such that repeat sound exposures 
may be attributed to individuals (to the extent possible).
    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving activities. In addition, observers would 
record all incidents of marine mammal occurrence, regardless of 
distance from activity, and would document any behavioral reactions in 
concert with distance from piles being driven. Pile driving activities 
include the time to install 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.
    At least one land-based PSO would be located at the project site, 
and the Navy has indicated that when possible and appropriate during 
vibratory pile driving activities, one additional boat-based PSO would 
be located at the edge of the Level B harassment isopleth (see Figure 
1-2 of the Marine Mammal Monitoring Plan dated March, 2020; available 
at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities).
    PSOs would scan the waters using binoculars, and/or spotting 
scopes, and would use a handheld GPS or range-finder device to verify 
the distance to each sighting from the project site. All PSOs would be 
trained in marine mammal identification and behaviors and would have no 
other project-related tasks while conducting monitoring. In addition, 
monitoring would be conducted by qualified observers, who would be 
placed at the best vantage point(s) practicable to monitor for marine 
mammals and implement shutdown/delay procedures when applicable by 
calling for the shutdown to the hammer operator. The Navy would adhere 
to the following PSO qualifications:
    (i) Independent observers (i.e., not construction personnel) are 
required;
    (ii) At least one observer must have prior experience working as an 
observer;
    (iii) Other observers may substitute education (degree in 
biological science or related field) or training for experience;
    (iv) Where a team of three or more observers are required, one 
observer shall be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer; and
    (v) The Navy would submit observer CVs for approval by NMFS.
    Additional standard observer qualifications include:
     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 and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; 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.
    Observers would be required to use approved data forms (see data 
collection forms in the applicant's Marine

[[Page 57478]]

Mammal Mitigation and Monitoring Plan). Among other pieces of 
information, the Navy would record detailed information about any 
implementation of shutdowns, including the distance of animals to the 
pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, the Navy would attempt to 
distinguish between the number of individual animals taken and the 
number of incidences of take.
Reporting
    A draft report would be submitted to NMFS within 90 days of the 
completion of marine mammal monitoring, or 60 days prior to the 
requested date of issuance of any future IHA for projects at the same 
location, whichever comes first. The report would include marine mammal 
observations pre-activity, during-activity, and post-activity during 
pile driving days (and associated PSO data sheets), and would also 
provide descriptions of any behavioral responses to construction 
activities by marine mammals and a complete description of all 
mitigation shutdowns and the results of those actions and an 
extrapolated total take estimate based on the number of marine mammals 
observed during the course of construction. A final report must be 
submitted within 30 days following resolution of comments on the draft 
report. At minimum, the following information must be collected on all 
sighting forms and included in the monitoring report:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
driven or removed and by what method (i.e., impact or vibratory);
     Weather parameters and water conditions during each 
monitoring period (e.g., wind speed, percent cover, visibility, sea 
state);
     The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting;
     Age and sex class, if possible, of all marine mammals 
observed;
     PSO locations during marine mammal monitoring;
     Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);
     Description of any marine mammal behavior patterns during 
observation, including direction of travel and estimated time spent 
within the Level A and Level B harassment zones while the source was 
active;
     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 (a correction 
factor may be applied to total take numbers, as appropriate);
     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;
     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;
     An extrapolation of the estimated takes by Level B 
harassment based on the number of observed exposures within the Level B 
harassment zone and the percentage of the Level B harassment zone that 
was not visible; and
     Submit all PSO datasheets and/or raw sighting data (in a 
separate file from the final report referenced immediately above).
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the Navy would report the 
incident to the Office of Protected Resources (OPR) (301-427-8401), 
NMFS and to the West Coast Region Stranding Coordinator (562-980-3230) 
as soon as feasible. If the death or injury was clearly caused by the 
specified activity, the Navy would immediately cease the specified 
activities until NMFS is able to review the circumstances of the 
incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of the IHA. The Navy 
would not resume their activities until notified by NMFS. The report 
would include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    NMFS would work with the Navy to determine what, if anything, is 
necessary to minimize the likelihood of further prohibited take and 
ensure MMPA compliance. The Navy would not resume their activities 
until notified by NMFS.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (85 
FR 21179, April 16, 2020) and solicited public comments on both our 
proposal to issue the 2020 IHA for the Navy's proposed activity 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 2020 IHA (85 FR 33129, June 1, 2020). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
renewal of the 2020 IHA.
    Comment: The Marine Mammal Commission (Commission) recommended that 
NMFS refrain from issuing renewals for any authorization and instead 
use its abbreviated Federal Register notice process, which is similarly 
expeditious and fulfills NMFS's intent to maximize efficiencies. If 
NMFS continues to propose to issue renewals, the Commission recommended 
that it (1) stipulate that a renewal is a one-time opportunity (a) in 
all Federal Register notices requesting comments on the possibility of 
a renewal, (b) on its web page detailing the renewal process, and (c) 
in all draft and final authorizations that include a term and condition 
for a renewal and, (2) if NMFS declines to adopt this recommendation, 
explain fully its rationale for not doing so.
    Response: NMFS does not agree with the Commission and, therefore, 
does not adopt the Commission's recommendation. NMFS will provide a 
detailed explanation of its decision within 120 days, as required by 
section 202(d) of the MMPA.
    Update: Since publication of the Federal Register notice of final 
IHA for the 2020 IHA, NMFS has sent the Commission a letter with 
detailed responses to their comments and concerns regarding IHA 
renewals. At the recommendation of the Commission, NMFS has added the 
``one-time'' language to our website and to our templates for both 
Federal Register notices of proposed IHAs and the IHAs themselves.

Preliminary Determinations

    The construction activities proposed by the Navy are nearly 
identical to those analyzed in the initial IHA. Due to the construction 
design plan changes, the proposed number of days of activity are fewer 
than the initial IHA. The method

[[Page 57479]]

of taking and effects of the action are identical to those analyzed in 
the initial IHA. The potential effects of the Navy's activities are 
limited to Level B harassment in the form of behavioral disturbance and 
temporary threshold shift. In analyzing the effects of the activities 
in the initial IHA, NMFS determined that the Navy's activities would 
have a negligible impact on the affected species or stocks and that the 
authorized take numbers of each species or stock were small relative to 
the relevant stocks (e.g., less than one-third of the abundance of all 
stocks). The mitigation measures and monitoring and reporting 
requirements as described above are identical to the initial IHA.
    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 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) the Navy'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.

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. No incidental take of ESA-listed marine mammal 
species is expected to result from this activity, and none would be 
authorized. Therefore, NMFS has determined that 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 Navy for conducting the Floating Dry Dock 
Project at Naval Base San Diego in San Diego, California, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed and final 2020 IHA and the 
reissued initial 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: September 14, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-20264 Filed 9-19-22; 8:45 am]
BILLING CODE 3510-22-P