Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael Bridge Restoration Project in Richmond, California, 15549-15552 [2024-04400]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 43 (Monday, March 4, 2024)]
[Notices]
[Pages 15549-15552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04400]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD736]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael 
Bridge Restoration Project in Richmond, 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.

-----------------------------------------------------------------------

SUMMARY: NMFS received a request from the California Department of 
Transportation (Caltrans) for the renewal of their currently active 
incidental harassment authorization (IHA) to take marine mammals 
incidental to Phase II of the Richmond-San Rafael Bridge Restoration 
Project in Richmond, California. Caltrans' activities will not be 
completed prior to the IHA's expiration. 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 March 
19, 2024.

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, 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.
    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/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael. In case of problems accessing these documents, please contact 
the analyst listed below.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain

[[Page 15550]]

exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are promulgated or, if the taking is limited to harassment, an IHA is 
issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). NMFS must also prescribe requirements pertaining to 
monitoring and reporting of such takings. The definition of key terms 
such as ``take,'' ``harassment,'' and ``negligible impact'' can be 
found in the MMPA and the NMFS's implementing regulations (see 16 
U.S.C. 1362 et seq.; 50 CFR 216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity, and requested 
public comment on a potential renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year 
renewal of an 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); and
     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. 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

    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 
National Environmental Policy Act review. NMFS has preliminarily 
determined that the application of this categorical exclusion remains 
appropriate for this renewal IHA.

History of Request

    On July 31, 2024, NMFS issued an IHA to Caltrans to take marine 
mammals incidental to Phase II of the Richmond-San Rafael Bridge 
Restoration Project in Richmond, California (88 FR 51778, August 4, 
2023), effective from August 1, 2023 through March, 30 2024. On 
February 7, 2024, 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. As required, the applicant also provided a 
preliminary monitoring report which confirms that the applicant has 
implemented the required mitigation and monitoring, and which also 
shows that no impacts of a scale or nature not previously analyzed or 
authorized have occurred as a result of the activities conducted.

Description of the Specified Activities and Anticipated Impacts

    In the initial IHA Caltrans proposed to conduct construction 
activities to restore a portion of the Richmond-San Rafael Bridge. 
Prior to restoration work Caltrans would install a debris containment 
system to ensure contaminants from construction are not deposited into 
San Francisco Bay. Caltrans and NMFS concluded that during the 
deployment and retrieval of the containment system disturbance (i.e., 
Level B harassment) may occur to harbor seals hauled out at Castro 
Rocks. Castro Rocks is an important haulout location for harbor seals 
that is close to the portion of the Richmond-San Rafael Bridge where 
construction work is occurring.
    Under the initial IHA Caltrans took 19 days to deploy the debris 
containment system and during this time protected species observers 
(PSOs) did not observe any disturbance of harbor seals

[[Page 15551]]

hauled out at Castro Rocks. Caltrans will be unable to remove the 
debris containment system before the expiration of the initial IHA. 
Therefore, this renewal would allow for the removal of the debris 
containment system and completion of the restoration project. NMFS 
authorized 9,000 takes of harbor seals by Level B harassment under the 
initial IHA, for the installation and removal of the debris containment 
system. This renewal would authorize a portion of the number of takes 
authorized in the initial IHA based on the days remaining to complete 
the work.
    All documents related to the initial IHA and the applicants request 
for renewal are available on our website at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael

Detailed Description of the Activity

    A detailed description of the demolition and construction 
activities for which take is proposed here may be found in the Federal 
Register notices of the Proposed IHA (88 FR 41920, June 28, 2023) and 
Final IHA (88 FR 51778, August 4, 2023) for the initial authorization. 
The location, timing, and nature of the activities, including the types 
of equipment planned for use, are identical to those described in the 
previous notices. Under the initial IHA the removal of the debris 
containment system will not be completed before the IHA expires. This 
renewal would allow for the removal of the containment system and 
completion of the restoration work on the Richmond-San Rafael Bridge. 
The proposed renewal would be effective for a period not exceeding 1 
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 
Federal Register notice of the Proposed IHA (88 FR 41920, June 28, 
2023) for the initial authorization. NMFS has reviewed the monitoring 
data from the initial IHA, 2023 draft Stock Assessment Reports, 
information on relevant Unusual Mortality Events, and other scientific 
literature, and determined there is no new information that 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 may be found in the Federal Register 
notice of the Proposed IHA (88 FR 41920, June 28, 2023) for the initial 
authorization. NMFS has reviewed the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and 
determined that there is no new information that affects our initial 
analysis of impacts on marine mammals and their habitat.

Estimated Take

    The initial IHA assumed a daily occurrence rate of 300 harbor seals 
per day on Castro Rocks. Caltrans expected the installation and removal 
of the debris containment system to take approximately 30 days. 
Therefore, the initial IHA authorized a total of 9,000 takes by Level B 
harassment to complete the installation and removal of the debris 
containment system. Under the initial IHA Caltrans installed the debris 
containment system over a 19 day period and no takes by Level B 
harassment of harbor seals occurred during that time. The removal of 
the debris containment system will not be completed before the initial 
IHA expires.
    This IHA renewal would authorize take by Level B harassment of 
harbor seals during the removal of the debris containment system. It is 
expected to take a total of 10 days to remove the debris containment 
system once the construction activities are completed. NMFS assumes a 
similar daily occurrence rate of 300 harbor seals per day on Castro 
Rocks which over the 10 days of remaining work would equate to a total 
of 3,000 takes by Level B harassment of harbor seals under this renewal 
IHA. A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
notices of the Proposed IHA (88 FR 41920, June 28, 2023) and Final IHA 
(88 FR 51778, August 4, 2023) for the initial authorization.

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 
initial IHA, and the discussion of the least practicable adverse impact 
included in the Federal Register notice of the Proposed IHA (88 FR 
41920, June 28, 2023) remains accurate. The following mitigation 
measures are proposed for this renewal:
     Seasonal Work Restrictions: installation or removal of the 
debris containment system must not occur between Piers 52-57 from April 
1-July 31 due to the pupping and molting period of harbor seals;
     Work must not take place outside of the containment system 
on the bridge between Piers 52-57 from April 1 to July 31;
     A non-disturbance buffer will be established within 400 
feet (121 meters) of Castro Rocks on the south side of bridge;
     Staging of barges will not be allowed in the project area;
     Routes for watercraft to reach work locations will be 
predetermined in consultation with the project biologist to avoid 
harassment or take of marine mammals hauled out at Castro Rocks; and
     No piles may be driven or vibrated to create staging 
locations for any watercraft. Barges and vessels will be tethered to 
the existing concrete bridge piers. The following monitoring and 
reporting measures are proposed for this renewal:
     Caltrans will monitor to collect data on marine mammal 
behavior, counts of the individuals observed, and the frequency of the 
observations. Caltrans will collect sighting data and observations on 
behavioral responses to construction for marine mammal species observed 
in the region of activity during the period of construction. All 
observers will be trained in the identification of marine mammals and 
marine mammal behaviors;
     PSOs must be independent observers (i.e., not construction 
personnel). All PSOs must have the ability to conduct field 
observations and collect data according to assigned protocols, be 
experienced in field identification of marine mammals and their 
behaviors. Caltrans must submit their resumes to NMFS for approval;
     Biological monitoring must occur 5 days prior to the 
Project's start date, to establish baseline observations;
     Observation periods will encompass different tide levels 
and hours of the day. Monitoring of marine mammals around the 
construction site will be conducted using binoculars as necessary; and
     The location of the PSOs will be at a monitoring platform 
positioned on

[[Page 15552]]

Pier 55 of the Richmond-San Rafael Bridge, at the closest pier of the 
Richmond-San Rafael Bridge to Castro Rocks. Pier 55 is approximately 21 
meters from the nearest rock at Castro Rocks harbor seal colony.
    Caltrans shall submit a draft report to NMFS within 90 days of the 
completion of marine mammal monitoring, or 60 days prior to the 
issuance of any subsequent IHA for this project (if required), 
whichever comes first. The annual report will detail the monitoring 
protocol, summarize the data recorded during monitoring, and estimate 
the number of marine mammals that may have been harassed. If no 
comments are received from NMFS within 30 days, the draft final report 
will become final. If comments are received, a final report must be 
submitted up to 30 days after receipt of comments. All PSO datasheets 
and/or raw sighting data must be submitted with the draft marine mammal 
report.
    Reports shall contain the following information:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period including: (a) what type of restoration work is 
being completed, and (b) the total duration of work completed;
     PSO locations during monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including sea state and any other relevant weather 
conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    Upon observation of a marine mammal, the following information must 
be reported:
     Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
     Time of sighting;
     Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), and PSO confidence 
in identification;
     Distance and location of each observed marine mammal 
relative to the bridge restoration work;
     Estimated number of animals by species (min/max/best 
estimate);
     Estimated number of animals by cohort (adults, pups, and 
group composition, etc.);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such 
flushing or head posturing); and
     Detailed information about implementation of any 
mitigation measures, a description of specified actions that ensured, 
and resulting changes in behavior of the animal(s), if any.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (88 
FR 41920, June 28, 2023) and solicited public comments on both our 
proposal to issue the initial IHA for the installation and removal of 
the debris containment system 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 initial IHA (88 FR 51778, 
August 4, 2023) and none of the comments specifically pertained to the 
renewal of the 2023 IHA.

Preliminary Determinations

    The activities conducted under this potential renewal would be a 
subset of the activities authorized under the initial IHA. 
Specifically, this renewal would authorize the removal of the debris 
containment system. Removal of the debris containment system is 
expected to take 10 days. This activity was originally authorized under 
the initial IHA but Caltrans could not complete the removal of the 
debris containment system before the initial IHA expired. In analyzing 
the effects of the activities for the initial IHA, NMFS determined that 
the Caltrans' 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). There is no new information 
that affects NMFS' determinations supporting issuance initial IHA or 
this renewal. 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) Caltrans' 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

    No incidental take of Endangered Species Act (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 a renewal IHA to Caltrans for the removal of the debris 
containment system for Phase II of the Richmond-San Rafael Bridge 
Restoration Project in Richmond, California from the April 1, 2024, 
through March 30, 2025, 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/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael. 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: February 27, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-04400 Filed 3-1-24; 8:45 am]
BILLING CODE 3510-22-P