Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Naval Base Point Loma Fuel Pier Inboard Pile Removal Project, 78655-78659 [2022-27776]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 245 (Thursday, December 22, 2022)]
[Notices]
[Pages 78655-78659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27776]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC617]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Naval Base Point Loma Fuel Pier 
Inboard Pile Removal Project

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

[[Page 78656]]


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

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SUMMARY: NMFS received a request from the United States Navy (Navy) for 
the renewal of their currently active incidental harassment 
authorization (IHA) to take marine mammals incidental to Fuel Pier 
Inboard Pile Removal Project at Naval Base Point Loma in San Diego 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 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 January 
6, 2023.

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: Kate Fleming, 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 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 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 1 year renewal IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: 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

[[Page 78657]]

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

History of Request

    On August 26, 2021, NMFS issued an IHA to the Navy to take marine 
mammals incidental to the Fuel Pier Inboard Pile Removal Project at 
Naval Base Point Loma in San Diego Bay, CA (86 FR 48986), effective 
from January 15, 2022 through January 14, 2023. On November 16, 2022, 
NMFS received an application for the renewal of that initial IHA. As 
described in the application for renewal IHA, the activities for which 
incidental take is requested consist of activities that are covered by 
the initial authorization but will not be completed prior to its 
expiration. At the time of submittal of the renewal request, no 
activities had been conducted (though the applicant indicated its 
intention to conduct some activities prior to expiration of the initial 
IHA). Therefore, a renewal is appropriate, and no monitoring data is 
available for review.

Description of the Specified Activities and Anticipated Impacts

    The initial IHA authorized take incidental to the removal of 409 
piles from the Fuel Pier at Naval base Point Loma by a variety of 
techniques (i.e., one to two pile clippers, an underwater chainsaw, a 
diamond wire saw, or a vibratory hammer, possibly with the assistance 
of a diver, to allow for continued Naval Fleet readiness activities. At 
the time of the request, the Navy has not done any work under the 
initial IHA. The activities that would occur under the renewal IHA 
consist of activities that are covered by the current authorization but 
will not be completed prior to its expiration (if any work is 
undertaken prior to expiration of the initial IHA). As the Navy has not 
done any work under the initial IHA at the time of their request, we 
assume here that the activities to be conducted under the renewal IHA 
are identical to those evaluated for the initial IHA.
    Level B harassment (disruption of behavioral patterns and TTS for 
individual marine mammals resulting from exposure to the sounds 
produced from the underwater acoustic sources) is authorized under the 
initial IHA and proposed for authorization through this renewal for six 
species of marine mammal that could be present in the project area: 
California sea lion (Zalophus californianus), the northern elephant 
seal (Mirounga angustirostris), the harbor seal (Phoca vitulina), the 
bottlenose dolphin (Tursiops truncatus), the Pacific white-sided 
dolphin (Lagenorhynchus obliquidens), and the common dolphin (Delphinus 
delphis). Based on the nature of the activity and the anticipated 
effectiveness of the mitigation measures Level A harassment is neither 
anticipated nor proposed to be authorized.
    The following documents are referenced in this notice and include 
important supporting information:
     Initial 2020 final IHA (86 FR 48986; September 01, 2021);
     Initial 2021 proposed IHA (86 FR 38274; July 20, 2021); 
and
     Initial IHA application, references cited, marine mammal 
monitoring plan, and San Diego Bay Acoustic Compendium (available at 
www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-fuel-pier-removal-naval-base-san-diego-california).

Detailed Description of the Activity

    A detailed description of the pile removal activities for which 
authorization of take is proposed here may be found in the notices of 
the proposed and final IHAs for the initial authorization. The location 
and nature of the activities, including the methods and types of 
equipment planned for use, are identical to those described in the 
previous notices. The Navy intends to complete work by March 31, 2023, 
under the terms of a previously developed Memorandum of Understanding 
(MOU) between the Navy and the U.S. Fish and Wildlife Service (USFWS). 
According to this MOU, the Navy would only be performing in-water 
activities during a 196-day period from September 16 to March 31 to not 
interfere with the California least tern (Sterna antillarum browni) 
nesting season. However, the proposed renewal would be effective for a 
period extending to one year from the date of expiration of 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 initial authorization. 
NMFS has reviewed the most recent 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 Marine Mammals in the Area 
of Specified Activities contained in the supporting documents for the 
initial IHA. This includes cases where stock abundances have changed. 
In all cases, stock abundance estimates are either the same (i.e., 
bottlenose dolphin, California sea lion, harbor seal), or have 
increased (common dolphin, Pacific white-sided dolphin, and northern 
elephant seal, with the exception of the long-beaked common dolphin, 
which has decreased. In all cases, our negligible impact determination 
has not changed.

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 Notices of 
the Proposed IHA for the initial authorization. NMFS has reviewed the 
most recent 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

[[Page 78658]]

specified activity are found in the notices of the proposed and final 
IHAs for the initial authorization. Specifically, the source levels, 
days of operation, and marine mammal density/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.

  Table 1--Level B Harassment Take Estimates for the NBPL Old Fuel Pier
                          Pile Removal Project
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                                                           Level B take
                       Common name                           requested
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California sea lion.....................................           1,260
Harbor seal.............................................              84
Northern elephant seal..................................               7
Common dolphin..........................................             756
Pacific white-sided dolphin.............................              84
Bottlenose dolphin......................................              84
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this proposed authorization are identical 
to those included in the FR notice announcing the issuance of the 
initial IHA, and the discussion of the least practicable adverse impact 
included in that document and the notice of the proposed IHA remains 
accurate. The same measures are proposed for this renewal and are 
summarized here:
     The use of trained and qualified PSOs;
     The implementation of a 20 m shutdown zone that is larger 
than the predicted Level A harassment isopleths.
     Delay or halting of activities in the event that 
visibility decreases where the shutdown zone cannot be appropriately 
monitored; and,
     Pile removal during daylight hours only.
     A minimum of one to four PSO's are allowed, depending on 
the visibility of the 400 meter Level B harassment zone, the visibility 
of the entire shutdown zone, and the location of pile removal 
activities for concurrent pile clippers;
     PSO's will need to record all observations of marine 
mammals, regardless of the distance from the pile being removed.
     Draft and final monitoring reports will be submitted to 
NMFS.
     The Navy will submit all PSO datasheets and/or raw 
sighting data with the draft report.
     Reporting of injured or dead marine mammals is required.

                         Table 3--Shutdown and Harassment Zones (meters) For Each Method
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                                                                                    Harassment
               Pile information                          Removal method                zone        Shutdown zone
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13-inch polycarbonate pile....................  One pile clipper................             423              20
14-inch, 16-inch concreate piles..............  One pile clipper................             250  ..............
14-inch, 16-inch concreate piles..............  Two pile clippers...............             250  ..............
14-inch, 16-inch concreate piles..............  Underwater chainsaw.............             229  ..............
14-inch, 16-inch concreate piles..............  Diamond wire saw................             575  ..............
14-inch, 16-inch concreate piles..............  Vibratory hammer................             311  ..............
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Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (86 
FR 38274; July 20, 2021) and solicited public comments on both our 
proposal to issue the initial IHA for Fuel Pier Inboard Pile Removal 
Project at Naval Base Point Loma and on the potential for a renewal 
IHA, should certain requirements be met.

Preliminary Determinations

    The proposed renewal request consists of activities identical to 
those that are covered by the initial authorization. The methods of 
determining estimated take, potential effects, and required mitigation, 
monitoring and reporting have not changed.
    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). We 
found that the activities authorized under the initial IHA would have a 
negligible impact and that the taking would be small relative to the 
population size.
    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. This includes consideration of the 
estimated abundance of common dolphin, Pacific white-sided dolphin, and 
northern elephant seal stocks increasing slightly and the population 
estimate for long-beaked common dolphin decreasing slightly. As such, 
our negligible impact determination has not changed. 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. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue

[[Page 78659]]

a renewal IHA to the Navy for conducting the Fuel Pier Inboard Pile 
Removal Project at Naval Base Point Loma in San Diego Bay, California 
from January 15, 2023 to January 14, 2024, provided the previously 
described mitigation, monitoring, and reporting requirements are 
incorporated. A draft of the proposed and final initial IHA can be 
found at https://www.fisheries.noaa.gov/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: December 16, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-27776 Filed 12-21-22; 8:45 am]
BILLING CODE 3510-22-P