Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Chevron Long Wharf Maintenance and Efficiency Project in San Francisco Bay, California, 25573-25577 [2024-07678]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 71 (Thursday, April 11, 2024)]
[Notices]
[Pages 25573-25577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07678]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD816]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Chevron Long Wharf Maintenance 
and Efficiency Project in San Francisco Bay, California

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

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

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SUMMARY: NMFS received a request from Chevron Products Company 
(Chevron) for the renewal of their currently active incidental 
harassment authorization (IHA) to take marine mammals incidental to the 
Long Wharf Maintenance and Efficiency Project (LWMEP) in San Francisco 
Bay, California. Chevron's 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 April 
26, 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]. 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 below.
    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.

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

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 promulgated or, if the taking is limited

[[Page 25574]]

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''). 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; 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 (88 FR 19247, March 31, 2023), 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: https://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 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NAO 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 May 12, 2023, NMFS issued an IHA to Chevron to take marine 
mammals incidental to the LWMEP in San Francisco Bay, California (88 FR 
31703, May 18, 2023), effective from June 1, 2023, through May 31, 
2024. On February 23, 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. That report and other supporting materials can be 
found on the project website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-chevron-products-company-long-wharf-maintenance-and-efficiency.

Description of the Specified Activities and Anticipated Impacts

    The Chevron LWMEP consists of construction activities to upgrade 
Berth 1 of the Refinery Long Wharf in San Francisco Bay, California, in 
order to meet current safety and efficiency standards. Chevron's 
planned construction at Berth 1 included: vibratory extraction of two 
18-inch concrete piles associated with an existing gangway and catwalk; 
impact installation of 42 24-inch square concrete piles to construct a 
mooring dolphin and hook, breasting dolphin and breasting points with 
standoff fenders, and to replace the catwalk in a different location; 
vibratory installation of a temporary construction template composed of 
up to 12 36-inch steel piles; and vibratory extraction of the same 
temporary steel piles when in-

[[Page 25575]]

water construction activities were complete. All in-water work was 
expected to be completed in a seasonal work window from June 1 through 
November 30, 2023.
    Due to unexpected difficulty with pile installation, Chevron was 
only able to complete vibratory extraction and impact installation of 
concrete piles, and vibratory installation of temporary steel piles. 
The applicant initially determined 12 36-inch steel piles would be 
needed to support the template; however, only 10 steel piles were 
needed and installed via vibratory hammer. Chevron plans to complete 
the remaining construction activities, which includes vibratory 
extraction of the 10 steel piles, in up to 8 non-consecutive days 
during 1 month during June 1 through November 30, 2024. This renewal 
request is to cover the subset of activities in the initial IHA that 
will not be completed during the effective IHA period.
    The initial IHA was intended to cover 1 year of a larger project 
for which Chevron obtained prior IHAs and intends to request take 
authorization for subsequent facets of the project. The larger 5-year 
project involves upgrading Long Wharf to satisfy current Marine Oil 
Terminal Engineering and Maintenance Standards. The Long Wharf has 6 
berths for receiving raw materials and shipping products. The project 
area encompasses the entirety of Berth 1, an area of approximately 470 
square meters (m\2\).
    Chevron's proposed activity includes vibratory pile removal, which 
may result in the incidental take of marine mammals, by harassment 
only. Due to mitigation measures, no Level A harassment is anticipated 
to occur, and none is proposed for authorization. The likely or 
possible impacts of the Chevron's proposed activity on marine mammals 
could involve both non-acoustic and acoustic stressors and is unchanged 
from the impacts described in Federal Register notices for the initial 
IHA (88 FR 19247, March 31, 2023; 88 FR 31703, May 18, 2023). Potential 
non-acoustic stressors could result from the physical presence of the 
equipment, vessels, and personnel; however, any impacts to marine 
mammals are expected to primarily be acoustic in nature. Sounds 
resulting from pile extraction may result in the incidental take of 
marine mammals, by Level B harassment only, in the form of behavioral 
harassment.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed here may be found in the notices of the proposed and 
final IHAs for the initial authorization (88 FR 19247, March 31, 2023; 
88 FR 31703, May 18, 2023). As previously mentioned, this request is 
for a subset of the activities considered for the initial IHA that 
would not be completed prior to its expiration. The location, timing, 
and nature of the activities, including the types of equipment planned 
for use, are identical to those described in the previous notice for 
the initial IHA. The proposed renewal IHA would be effective from June 
1, 2024, through March 31, 2025.

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 
notice of the proposed IHA for the initial authorization (88 FR 19247, 
March 31, 2023). NMFS has reviewed the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports (SARs), information on 
relevant Unusual Mortality Events (UMEs), and other scientific 
literature, and determined that neither this nor any other new 
information affects which species or stocks have the potential to be 
affected or the pertinent information in the description of the marine 
mammals in the area of specified activities contained in the supporting 
documents for the initial IHA (88 FR 31703, May 18, 2023).

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 an 
authorization of incidental take is proposed here may be found in the 
notice of the proposed IHA for the initial authorization (88 FR 19247, 
March 31, 2023). NMFS has reviewed the monitoring data from the initial 
IHA, recent draft SARs, information on relevant UMEs, 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

    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 (88 FR 19247, 
March 31, 2023; 88 FR 31703, May 18, 2023). Specifically, the area or 
space within which harassment is likely to occur and marine mammal 
occurrence data applicable to this authorization remain unchanged from 
the initial IHA. Similarly, methods of take, daily take estimates and 
types of take remain unchanged from the initial IHA, with the exception 
of California sea lion and gray whale. The number of takes proposed for 
authorization in this renewal are a subset of the initial authorized 
takes that better represent the amount of activity left to complete. 
These takes, which reflect the lower number of remaining days of work, 
are indicated below in table 1. Takes are calculated using the same 
methodology as the initial IHA, and are just a proportion of the 
initial takes based on up to 8 days of work remaining.
    For California sea lions, a maximum of four individuals have been 
seen in a single day based on previous monitoring reports. To account 
for this possibility, Chevron estimated 2 days of four individuals 
entering the project area and one individual for the remaining 6 days 
of work. Therefore, Chevron requested, and NMFS proposes to authorize, 
14 takes of California sea lions by Level B harassment.
    The initial IHA authorized 2 takes by Level B harassment of gray 
whale. No gray whale takes have occurred, and given the already very 
low number of takes previously authorized (2 animals), NMFS proposes to 
authorize 2 takes of gray whale in this renewal IHA, rather than a 
proportion of the initial takes.
    Based upon prior occurrences in the Bay, Chevron conservatively 
estimated, and NMFS concurred, that a maximum of 10 northern fur seals 
could occur in the project area during the 30 day in-water construction 
activity period for the initial IHA. Since only 8 days of in-water work 
are proposed for this renewal IHA, NMFS proposes to authorize 3 takes 
of northern fur seals by Level B harassment.

[[Page 25576]]



 Table 1--Estimated Take by Level B Harassment Proposed for Authorization and Estimated Take as a Percentage of
                                                 the Population
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                                                                                                  Estimated take
                                                                                       Total           as a
                    Species                            Expected occurrence        estimated take   percentage of
                                                                                                    population
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Harbor seal...................................  237 seals per day...............           1,896              <7
California sea lion *.........................  14 over project duration........              14              <1
Harbor porpoise...............................  1 porpoise per day..............               8              <1
Bottlenose dolphin............................  Up to 8 dolphins once per month.               8              <2
Gray whale **.................................  2 whales over project duration..               2              <1
Northern elephant seal........................  1 seal every 3 days.............               3              <1
Northern fur seal ***.........................  3 seals over project duration...               3              <1
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* Takes of California sea lion are calculated to account for up to 2 days with a maximum of four individuals per
  day, based on previous observations, and 6 days of one individual per day.
** The initial IHA authorized 2 takes by Level B harassment of gray whale. No gray whale takes have occurred,
  and given the already very low number of takes previously authorized (2 animals), NMFS proposes to authorize 2
  takes of gray whale in this renewal IHA, rather than a proportion of the initial takes.
*** Takes of northern fur seal are calculated using the same proportions as the initial IHA, which is based on a
  maximum of 10 individuals per 30 days.

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 (88 FR 31703, May 18, 2023), and the discussion of the 
least practicable adverse impact included in that document remains 
accurate. Only vibratory pile extraction is proposed for the renewal 
IHA, so only a subset of mitigation requirements are included as 
several others (e.g., soft-start procedures, bubble curtain) are 
specific to impact pile installation and, therefore, unnecessary for 
the specified activities proposed here.
    The following mitigation, monitoring, and reporting measures are 
proposed for this renewal, Chevron will:
     Employ at least two protected species observers (PSOs) to 
monitor the full shutdown zones, the Level B harassment zones to the 
extent practicable, and implement pre- and post-clearance monitoring;
     Implement a minimum shutdown zone of 10 meters for in-
water construction activities;
     Shut down if marine mammals come within the designated 
hearing group-specific shutdown zones;
     Shut down if any species for which take has not been 
authorized enters the Level B harassment zone;
     Submit a draft monitoring report to NMFS within 90 days of 
completion of marine mammal monitoring or 60 days prior to issuance of 
any subsequent IHA for this project, whichever comes first;
     Prepare and submit a final report within thirty days 
following resolution of comments on the draft report from NMFS;
     Submit all PSO datasheets and/or raw sighting data (in a 
separate file from the Final Report referenced immediately above); and
     Report injured or dead marine mammals.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (88 
FR 19247, March 31, 2023) and solicited public comments on both our 
proposal to issue the initial IHA for construction activities 
associated with LWMEP and on the potential for a renewal IHA, should 
certain requirements be met. During the 30-day public comment period, 
NMFS received no comments on either the proposal to issue the initial 
IHA or the potential for a renewal IHA.

Preliminary Determinations

    The proposed renewal request consists of a subset of activities 
analyzed through the initial authorization described above. In 
analyzing the effects of the activities for the initial IHA, NMFS 
determined that Chevron's activities would have a negligible impact on 
the affected species or stock and that authorized take numbers of each 
species or stock were small relative to the relevant stocks (e.g., less 
than one-third 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 preliminarily 
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) Chevron's activities will not have 
an unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and; (5) appropriate monitoring and reporting requirements are 
included.

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 proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this proposed action.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to Chevron for conducting pile extraction 
activities in San Francisco Bay from June 1, 2024, through May 31, 
2025, provided the

[[Page 25577]]

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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. We 
request comment on our analyses, the proposed renewal IHA, and any 
other aspect of this notice. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.

    Dated: April 8, 2024.
Catherine G. Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-07678 Filed 4-10-24; 8:45 am]
BILLING CODE 3510-22-P