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 proposed or, if the taking is limited to harassment, a notice of a proposed IHA 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 ( printed page 56637) similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to here as “mitigation”); and requirements pertaining to the monitoring and reporting of the takings. The definition of all applicable MMPA statutory used above are included in the relevant sections below and can be found in section 3 of the MMPA (16 U.S.C. 1362) and the NMFS's implementing 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 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.

3. Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.

An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at: www.fisheries.noaa.gov/​national/​marine-mammal-protection/​incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with relevant comments on the initial IHA, have been considered in the development of this proposed IHA renewal, and a summary of agency responses to applicable comments is included in this notice. NMFS will consider any additional public comments prior to making any final decision on the issuance of the requested renewal, and agency responses will be summarized in the final notice of our decision.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action ( i.e., the issuance of a renewal IHA) 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 September 2, 2025, NMFS issued an IHA to ODOT to take marine mammals incidental to the Yaquina Bay Dolphin Replacement Project in Newport, Oregon. The final IHA published in the Federal Register on September 5, 2025 (90 FR 42935). ODOT requested this IHA be effective from November 1, 2025 through October 31, 2026. On July 21, 2026, NMFS received an application for the renewal of that initial IHA, which was determined to be adequate and complete on August 12, 2026.

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

The purpose of the project is to remove and subsequently install new piles currently being used as part of the pier protection system. This proposed project will include the removal of 11 dolphins, consisting of 33 piles via vibratory pile driving and then the installation of 36 new 16-in (40.64-cm) steel piles, which would make up 12 new dolphins. Piles will all be “battered,” meaning the piles will be driven at an angle, rather than vertically to provide for additional lateral resistance to the overall structure. These replacement piles will be installed somewhat offset from the existing dolphins to avoid driving piles in previously disturbed sediment, as geotechnical engineers have confirmed that replacing the dolphins in the same location as the existing piles would require significantly deeper embedment to reach fixity. Pile removal and driving will be accomplished utilizing equipment mounted on a barge using supporting spuds. Piles will only require vibratory pile driving and will not need to be “proofed” with an impact hammer to further reach stable installation depth. Instead, ODOT and its contractor(s) will undertake auger installation to break through any harder substrate, with vibratory pile driving allowing for the achievement of stable depth. ( printed page 56638)

Takes of marine mammals by Level B harassment only are expected to occur as a result of noise produced by the pile driving installation and removal activities. The initial IHA authorized take incidental to in-water construction activities associated with the dolphins for the protection of the pier using vibratory hammers. However, given the unexpected discovery of harder substrate found under the initial piling locations, ODOT was unable to penetrate to the appropriate stable depth, therefore, not able to install piles for the proposed project. ODOT currently proposes to pre-drill holes followed by vibratory installation of piles to suitable depth.

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 (90 FR 34441, July 22, 2025) and final (90 FR 42935, September 5, 2025) IHAs 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, with the exception of auger drilling. Given this, we do not reiterate description of these aspects of the specified activity that are unchanged here but instead refer the reader to the original Federal Register notices for the proposed (90 FR 34441, July 22, 2025) and final (90 FR 42935, September 5, 2025) actions.

In addition to the methods analyzed under the original IHA, auger drilling may be used to pre-drill holes in which piles will be placed and driven to depth with a vibratory hammer. However, auger drilling is not expected to produce sound that is likely to result in incidental take of marine mammals due to the relatively low source levels, position of the sound source in the sediment layers and associated higher transmission loss, and the industrial nature of the project location. Drilling is therefore not addressed further in this notice.

The initial IHA authorized take incidental to the in-water vibratory pile driving removal and installation activities. The project is anticipated to require approximately 46 days of in-water work, as shown in table 1. The in-water work window is November through February (79 days). 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 proposed Federal Register for the initial authorization (90 FR 34441, July 22, 2025). NMFS has reviewed the monitoring data from the initial IHA, recent Stock Assessment Reports, 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 proposed Federal Register for the initial authorization (90 FR 34441, July 22, 2025).

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 notices of the proposed Federal Register for the initial authorization (90 FR 34441, July 22, 2025). NMFS has reviewed the monitoring data from the initial IHA, recent Stock Assessment Reports, 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 used to estimate take for the specified activity are found in the notices of the proposed (90 FR 34441, July 22, 2025) and final (90 FR 42935, September 5, 2025) actions. Specifically, the action area and marine mammal density/occurrence data applicable to this authorization remain unchanged from the initial Federal Register notices. Similarly, source levels, type of activity ( i.e., vibratory pile driving), methods of take, take of species/stock, and types of take remain unchanged from the initial Federal Register notices. The estimated number of takes proposed for authorization is a subset of those authorized in the initial IHA. Estimated take by Level B harassment for the proposed renewal was calculated using the same methodology as in the initial proposed (90 FR 34441, July 22, 2025) and final IHAs (90 FR 42935, September 5, 2025), as shown in table 2.

As required for an IHA renewal, ODOT submitted preliminary monitoring data gathered during the 2025-2026 work period. In-water work was conducted for 4 hours on a single day in January. During that time, PSOs documented 24 sightings of 46 individual California sea lions and 7 sightings of 7 individual harbor seals. Of these, 37 California sea lions and 3 harbor seals were sighted during vibratory pile driving. ( printed page 56639)

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 proposed IHA (90 FR 34441, July 22, 2025), and the discussion of the least practicable adverse impact included in that document remains accurate. The following measures are proposed for this renewal:

• ODOT must employ NMFS-approved PSOs and establish monitoring locations to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions, as described in ODOT's Marine Mammal Monitoring Plan (see NMFS' website:www.fisheries.noaa.gov/​action/​incidental-take-authorization-oregon-department-transportations-yaquina-bay-dolphin);
• Monitoring must take place from 30 minutes prior to initiation of vibratory pile driving activity (i.e., pre-start clearance monitoring) through 30 minutes post completion of pile driving activity;
• Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the PSO(s) to determine that the shutdown zones are clear of marine mammals;
• If a marine mammal is observed entering or within the shutdown zones pile driving activity must be delayed or halted;
• If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the required shutdown zones or 15 minutes have passed without redetection of the animal;
• Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone;
• ODOT must shut down vibratory pile installation and removal activities if a marine mammal comes within 28 meters (m) (92 feet (ft)) during pile driving or extraction;
• ODOT must shut down other construction operations if a marine mammal comes within 10 m (32.8 ft) of construction activity to avoid direct physical interaction with marine mammals;
• ODOT must submit a draft marine mammal monitoring report to NMFS within 90 days after the completion of pile driving activities. A final report must be prepared and submitted within 30 calendar days following receipt of any NMFS comments on the draft report; and
• All injured or dead marine mammals must be reported to the Office of Protected Resources (PR.ITP.MonitoringReports@noaa.gov and ITP.Hotchkin@noaa.gov) and to the NOAA West Coast Regional Stranding Coordinator (1-866-767-6114; more information found on NMFS' website: www.fisheries.noaa.gov/​westcoast/​marine-mammal-protection/​west-coast-marine-mammal-stranding-network).

Comments and Responses

As noted previously, NMFS published a Federal Register notice announcing the proposed IHA (90 FR 34441, July 22, 2025) and solicited public comments on both our proposal to issue the initial IHA for ODOT's Yaquina Bay Dolphin Replacement Project in Newport, Oregon and on the potential for a renewal IHA, should certain requirements be met. No public comments were received following the notice announcing the proposed issuance of the initial IHA (90 FR 34441, July 22, 2025).

Preliminary Determinations

This proposed action is identical to that of the initial authorization in terms of effects (90 FR 34441, July 22, 2025; 90 FR 42935, September 5, 2025). The same marine mammals are affected, and the potential effects and estimated take are a subset of those authorized in the initial IHA. Mitigation and monitoring remain the same as the initial authorization. The extensive analysis, as well as the associated findings included in the prior documents remain applicable.

Given this, 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) ODOT'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 ensure 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 ( printed page 56640) 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 ODOT for conducting construction activities for the Yaquina Bay Dolphin Replacement Project in Newport, Oregon from November 1, 2026, through October 31, 2027, provided the previously described mitigation, monitoring, and reporting requirements are incorporated. The initial IHA can be found at www.fisheries.noaa.gov/​action/​incidental-take-authorization-oregon-department-transportations-yaquina-bay-dolphin. We request comment on our analyses contained herein and within the original actions (90 FR 34441, July 22, 2025; 90 FR 42935, September 5, 2025), 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 this renewal IHA.

91 FR 56636