Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Naval Base Point Loma Fuel Pier Inboard Pile Removal Project, 2889-2892 [2023-00800]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 11 (Wednesday, January 18, 2023)]
[Notices]
[Pages 2889-2892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00800]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC666]


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.

ACTION: Notice; issuance of Renewal incidental harassment authorization 
(IHA).

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued a renewal

[[Page 2890]]

incidental harassment authorization (IHA) to the United States Navy 
(Navy) to incidentally harass marine mammals incidental to Fuel Pier 
Inboard Pile Removal Project at Naval Base Point Loma in San Diego Bay, 
CA.

DATES: This renewal IHA is valid from January 15, 2023 through January 
14, 2024.

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 proposed or, if the taking is 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 1 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, 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 Detailed Description of Specified Activities 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 initial 
IHA issuance, 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; and
    (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.

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 (86 FR 48986; September 01, 
2021), 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, 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 the 
expiration of the initial IHA). Therefore, a renewal is appropriate, 
and no monitoring data are available for review. The notice of the 
proposed renewal incidental harassment authorization was published on 
December 22, 2022 (87 FR 78655).

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 will 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

[[Page 2891]]

individual marine mammals resulting from exposure to the sounds 
produced from the underwater acoustic sources) is authorized under the 
initial IHA and authorized 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 authorized.
    The following documents are referenced in this notice and include 
important supporting information:
     Initial 2022 proposed renewal IHA (87 FR 78655, December 
22, 2022);
     Initial 2021 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 
take is authorized 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 renewal will 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 provided, 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 take is 
authorized here may be found in the Federal Register notices of the 
Proposed IHA for the initial authorization. NMFS has reviewed the most 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, other scientific literature, and the public comments, 
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 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
                         Common name                             take
                                                               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 Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the initial IHA, 
and the discussion of the least practicable adverse impact included in 
that document and the notice of the proposed IHA remains accurate. The 
same measures are proposed for this renewal and are summarized here:
     The use of trained and qualified Protected Species 
Observers (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;
     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; and
     Reporting of injured or dead marine mammals is required.

[[Page 2892]]



                         Table 2--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

    A notice of NMFS' proposal to issue a renewal IHA to the Navy was 
published in the Federal Register on December 22, 2022 (87 FR 78655). 
That notice either described, or referenced descriptions of, the Navy's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated amount and manner of take, and proposed mitigation, 
monitoring and reporting measures. NMFS received no public comments.

Determinations

    The renewal request consists of 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 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.

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 determined that the application of this categorical 
exclusion remains appropriate for this renewal IHA.

Endangered Species Act

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

Renewal

    NMFS has issued a renewal IHA to the Navy for the take of marine 
mammals incidental to 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.

    Dated: January 11, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-00800 Filed 1-17-23; 8:45 am]
BILLING CODE 3510-22-P