Small Take of Marine Mammals Incidental to Specified Activities; Maintenance Dredging Around Pier 39, San Francisco, California, 52990-52994 [05-17639]
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52990
Federal Register / Vol. 70, No. 171 / Tuesday, September 6, 2005 / Notices
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Dated: August 30, 2005.
Emily Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. E5–4829 Filed 9–2–05; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[I.D. 052405C]
Small Take of Marine Mammals
Incidental to Specified Activities;
Maintenance Dredging Around Pier 39,
San Francisco, California
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; receipt of application
and proposed incidental harassment
authorization; request for comments.
AGENCY:
SUMMARY: NMFS has received an
application from Bay Marina
Management Incorporated (BMMI) to
take small numbers of marine mammals,
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by harassment, incidental to dredging
on the west side of the Pier 39 Marina
on the San Francisco waterfront, CA.
Under the Marine Mammal Protection
Act (MMPA), NMFS is requesting
comments on its proposal to issue an
incidental harassment authorization
(IHA) to BMMI for 1 year.
DATES: Comments and information must
be received no later than October 6,
2005.
ADDRESSES: Comments on the
application should be addressed to
Steve Leathery, Chief, Permits,
Conservation and Education Division,
Office of Protected Resources, National
Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD
20910–3225. The mailbox address for
providing email comments is
PR1.052405C@noaa.gov. NMFS is not
responsible for e-mail comments sent to
addresses other than the one provided
here. Comments sent via e-mail,
including all attachments, must not
exceed a 10–megabyte file size.
Comments may also be submitted via
facsimile to (301) 427–2521. A copy of
the application containing a list of the
references used in this document may
be obtained by writing to this address or
by telephoning the contact listed here
and is also available at: https://
www.nmfs.noaa.gov/protlres/PR2/
SmalllTake/
smalltakelinfo.htm#applications.
Documents cited in this notice may be
viewed, by appointment, during regular
business hours, at the aforementioned
address.
FOR FURTHER INFORMATION CONTACT: Jolie
Harrison, (301) 713–2289, or Monica
DeAngelis, NMFS Southwest Region,
(562) 980–3232.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the
MMPA (16 U.S.C. 1361 et seq.) direct
the Secretary of Commerce (Secretary)
to allow, upon request, the incidental,
but not intentional, taking of marine
mammals by U.S. citizens who engage
in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
issued or, if the taking is limited to
harassment, a notice of a proposed
authorization is provided to the public
for review.
Authorization may be granted if the
Secretary finds that the total taking will
have a negligible impact on the species
or stock(s), will not have an unmitigable
adverse impact on the availability of the
species or stock(s) for subsistence uses,
and that the permissible methods of
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taking and requirements pertaining to
the monitoring and reporting of such
taking are set forth. NMFS has defined
‘‘negligible impact’’ in 50 CFR 216.103
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.’’
Subsection 101(a)(5)(D) of the MMPA
established an expedited process by
which citizens of the United States can
apply for an authorization to
incidentally take small numbers of
marine mammals by harassment. Except
for certain categories of actions not
pertinent here, the MMPA defines
‘‘harassment’’ as:
any act of pursuit, torment, or annoyance
which: (i) has the potential to injure a marine
mammal or marine mammal stock in the wild
[Level A harassment]; or (ii) has the potential
to disturb a marine mammal or marine
mammal stock in the wild by causing
disruption of behavioral patterns, including,
but not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering
[Level B harassment].
Section 101(a)(5)(D) establishes a 45–
day time limit for NMFS review of an
application followed by a 30–day public
notice and comment period on any
proposed authorizations for the
incidental harassment of marine
mammals. Within 45 days of the close
of the comment period, NMFS must
either issue or deny issuance of the
authorization.
Summary of Request
On August 9, 2004, NMFS received an
application from Bay Marina
Management Incorporated (BMMI)
requesting an IHA for the take, by
harassment, of small numbers of
California sea lions (Zalophus
californianus) and Pacific harbor seals
(Phoca vitulina) incidental to the
maintenance dredging the I, J, and K
Docks on the west side of Pier 39
Marina on the San Francisco waterfront,
California.
Description of the Activity
BMMI proposes to perform
maintenance dredging using a small,
self-contained clamshell-style crane
barge between docks I, J, and K at the
Pier 39 west marina. These maintenance
measures are necessary to maintain safe
navigation depths at the marina, which
currently has reduced water depths
attributed to the accretion of bay
sediment. The proposed dredging at Pier
39 will remove sediment to create water
depths in the project area of 9 ft (2.7 m)
Mean Lower Low Water (MLLW), plus
an additional two-foot overdredge
allowance. Dredging design area limits
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(footprints) include the faces,
approaches, and entrance channels to
each berthing area up to the limit of the
adjacent pier. Dredging will occur
between June 1 and November 30 to
avoid impacts to steelhead trout and
Chinook salmon.
Dredging operations at the Pier 39
west marina are expected to occur in
late fall of 2005 or the summer of 2006
and are estimated to take approximately
one to two weeks to complete. Dredge
machinery would operate from 8 a.m. to
3:30 p.m. daily. Approximately 13,000
yd3 (9,939 m3) of material would be
removed. Material to be dredged will be
tested for pollutants and toxins by the
Dredge Material Management Office
prior to approval to begin dredging, and
deposition of dredged materials will be
deposited in accordance with local,
state and federal regulations. Once
removed, the dredged material will be
transferred to Piers 96/98, which are
owned and operated by the Port of San
Francisco, and from there it will be
disposed of at an approved upland
disposal site.
The proposed dredging of the Pier 39
west berthing area will focus on the
channels and slips of I and J docks and
half of the channel between J and K
docks. The original K dock was
destroyed by the combined weight of
hundreds of California sea lions that
frequently use the area as a haul-out.
Pier 39 replaced the damaged dock with
a number of ten by twelve-foot floats for
the sea lions to use. Since there are no
actual berthing sites at K dock, no
dredging will be necessary in the area
immediately surrounding or under K
dock. The crane barge will be situated
at the furthest distance possible from K
dock during each dredging episode. The
closest that the barge will be to the K
dock haul-out is when dredging the
channel between J and K docks. When
the barge is dredging this channel it will
be moored to the bayside of J dock and
extend the clamshell dredge arm out
into the channel, towards K dock. Since
the distance between J and K docks is
100 ft (30 m) and the barge is 30 ft (9
m) wide, it will never be positioned
closer than 50 ft (15 m) to K dock at any
time during the dredging project.
Description of Habitat and Marine
Mammals Affected by the Activity
The marine mammal species known
to be present at the Pier 39 Marina area
are the California sea lion (Zalophus
californianus) and the Pacific harbor
seal (Phoca vitulina). Since 1993, a
single adult male Steller sea lion
(Eumetopias jubatus) has been observed
hauled out on K dock intermittently
during the months of July and August,
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and occasionally in September (30
sightings in the last 10 years). However,
this project will not affect the Steller sea
lion because dredging activities will be
halted if a Steller sea lion is observed.
Additional information on these
species can be found in Marine Mammal
Stock Assessment Reports, which are
available online at: https://
www.nmfs.noaa.gov/protlres/PR2/
StocklAssessmentlProgram/
sars.html.
California Sea Lions
California sea lions range from
southern Mexico to southwestern
Canada. In the U.S., they breed during
July after pupping in late May to June,
primarily in the Channel Islands of
California. Most individuals breed on
the Channel Islands off southern
California and off Baja and mainland
Mexico, although a few pups have been
born on Ano Nuevo Island and this year
a pup was born on the docks at
Monterey and subsequently transferred
to Ano Nuevo Island with its mother.
Following the breeding season on the
Channel Islands, most adult and subadult males migrate northward to
central and northern California and to
the Pacific Northwest, while most
females and young animals either
remain on or near the breeding grounds
throughout the year or move southward
or northward, as far as Monterey Bay.
Since nearing extinction in the early
1900’s, the California sea lion
population has increased and is now
growing at a rate of 5.4 to 6.1 percent
per year (based on pup counts) with an
estimated minimum population of
138,881 animals. Actual population
numbers may be as high as 237,000 to
244,000 animals. The population is not
listed as ‘‘endangered’’ or ‘‘threatened’’
under the Endangered Species Act
(ESA), nor is this species listed as
‘‘depleted’’ or as a ‘‘strategic stock’’
under the MMPA.
California sea lions first appeared at
Pier 39 in September, 1989. Numbers of
hauled-out sea lions were relatively low
the first year and K Dock was only used
as a haul out from late summer through
the winter. Within a few years, larger
numbers of sea lions were observed at
K Dock and they began using the haulout throughout the year. The Marine
Mammal Center (MMC) began
monitoring California sea lions at Pier
39 in the late 1990’s and counts indicate
peak usage of K dock at Pier 39 in May
and early June, just prior to the breeding
season. Although numbers decrease
during mid-summer, since most adults
relocate to the rookeries for pupping
and breeding, some sea lions, of all age
classes, remain in the area and continue
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to haul out at Pier 39. Within the
dredging work window (June 1 to
November 30) the largest numbers of
California sea lions are found at K Dock
in the late summer and fall. The highest
number of individuals ever observed at
once between June 1 and November 30
at Pier 39 to date was 1244, in August
of 2003. If the number of individuals
observed at one count is averaged by
month, from June to November, since
2000, the averages range from 169 for
July to 709 in September. Since
monitoring began in 1991, only 10
California sea lion pups have been
observed at Pier 39, in 1997 and 1998.
These pups, which were all weaned,
most likely hauled out at K Dock due to
the El Nino, and pups are not expected
at the project site in ‘‘normal’’ years.
Pacific Harbor Seals
Although not commonly observed at
Pier 39, Pacific harbor seals have been
documented as visitors to K dock
numerous times in the past decade.
Harbor seals range from Baja California
in Mexico northward to the Aleutian
Islands of Alaska. The population
estimate for the California stock is
27,863 individuals (Caretta, et al., 2004)
and is relatively stable.
Harbor seals inhabit coastal waters
within their range and prefer sheltered
bays and inlets to the exposed coastline.
Daily haul-out behavior of harbor seals
is typically dependent on the tides,
weather and time of day. Harbor seals
exhibit seasonal variation in
reproductive timing depending on
geography. The pupping season for
California populations is in the spring,
with populations in the San Francisco
Bay typically bearing young from March
15 through May 31 (Green et al., 2001).
There are two active pupping sites in
the San Francisco Bay, Mowry Slough
in the South Bay and Castro Rocks in
the North Bay. Pups have been observed
at Yerba Buena Island and Corte Madera
Marsh in the San Francisco Bay. No
births have been witnessed at these
locations, but Yerba Buena is thought to
be a potential pupping site. No harbor
seal pups have ever been seen at Pier 39.
Annual counts of harbor seals at Pier
39 range from 0 seals observed in 1999
and 2004, to a high of nine observations
in 2000 for a total of 28 observations
between 1997–2004. No more than two
harbor seals have been observed hauled
out simultaneously at any given time at
K Dock. No harbor seals have been
observed hauling out at Pier 39 July
through September. No pups have been
observed at Pier 39. Observations by
MMC volunteers indicate that observed
harbor seals at Pier 39 tend to distance
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themselves from the California sea lions
hauling out in the vicinity.
Potential Effects on Marine Mammals
The applicant requests authorization
for incidental taking, by Level B
harassment, of California sea lions and
Pacific harbor seals. Level B harassment
may occur if hauled animals flush the
haulout and/or move to increase their
distance from dredging-related
activities, such as noise associated with
dredging, presence of a crane barge, the
presence of workers, or unfamiliar
activity in proximity to the haulout site.
This disturbance from acoustic and
visual stimuli is the principal means of
marine mammal taking associated with
these activities.
Sudden brief noises have been shown
to elicit startle reactions in some
pinnipeds. Novel looming visual stimuli
may induce similar startle reactions in
pinnipeds. Daily engine starts and
movements of the dredge bucket and
vessel may induce startled and/or flight
behavior in marine mammals using K
dock as a haul out. However, this area
has become a tourist spot for viewing
sea lions, and the current population of
animals utilizing K dock is accustomed
to human activities and regular noise
levels from people, traffic, use of nearby
boat slips, and other marine operations.
If animals do flush into the water, they
may return to the haul-out site
immediately, stay in the water for a
length of time and then return to the
haul-out, or temporarily haul-out at
another site. Many factors contribute to
the degree of behavioral modification, if
any, including seasonality, group
composition of the pinnipeds, type of
activity they are engaged in and what
noises they may be accustomed to
experiencing. Short-term reactions such
as startle or alert reactions are unlikely
to disrupt behavior patterns such as
migrating, breeding, feeding and
sheltering and would not likely cause
serious injury to marine mammals.
The small, self-contained, clamshell
dredge used for this activity may
produce noise of a sufficient level to
harass marine mammals at K dock.
Measured sound energy levels (SELs) of
similar equipment ranged between 75–
88 dBA (re 20 microPa) measured at 50
feet (the closest distance that the dredge
unit will be to K dock) (Boeing, 2005).
Results of an ongoing study at
Vandenberg Air Force Base of the effects
of rocket launches on pinnipeds
indicate that the percentage of Pacific
harbor seals leaving the haul-out
increases with noise level up to an SEL
of approximately 100 dBA, after which
almost all seals leave, although recent
data has shown that an increasing
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percentage of seals have remained on
shore, and those that remain are adults.
Though harbor seals are more sensitive
to audio stimuli than sea lions, these
results indicate that animals are flushed
at an SEL less than 100 dBA, and it is
possible that marine mammals at K
Dock may modify their behavior as a
result of the lesser dredge noise.
If a startled reaction is accompanied
by large-scale movements of marine
mammals, such as stampedes into the
water, the disruption may escalate into
Level A harassment and could result in
injury of individuals, especially if pups
are present. However, due to the
uniqueness of this particular haul-out
area, the unlikely presence of pups, and
the proposed shut-down procedures
should pups be sighted, NMFS believes
there is a very low likelihood of such
injury occurring at the Pier 39 site.
Specifically, the haul-out consists of
many separate floating platforms that
can hold up to about 25 marine
mammals each. If disrupted to the point
of flushing off the platforms, pinnipeds
can quickly leap or roll into the water
in any direction off the relatively small
platforms, avoiding a dangerous
stampede-like situation that may occur
at normal haul-out locations such as
exposed rocks. Additionally, marine
mammal pups use this haul-out very
infrequently (approximately 10 pups
have been sighted at K Dock, in 1997
and 1998, during the El Nino), further
reducing potential harm to the species.
Over the last 13 years, BMMI has
observed the sea lions either ignore
various unfamiliar intrusions and
remain hauled out, or adapt to them and
eventually become acclimated and
return to their normal behavior.
Disturbance from these proposed
dredging activities is expected to have a
only a short-term negligible impact to a
small number of California sea lions and
a few Pacific harbor seals. At a
maximum, short-term impacts are
expected to result in a temporary
reduction in utilization of K dock as a
haulout site while work is in progress or
until seals acclimate to the disturbance.
The project is not expected to result in
any permanent reduction in the number
of animals at Pier 39. NMFS
preliminarily agrees with BMMI that
effects will be limited to short-term and
localized behavioral changes falling
within the MMPA definition of Level B
harassment.
Mitigation
To minimize disturbance of marine
mammals from visual and acoustic
stimuli associated with the dredging
activities, BMMI will use a small
(relative to the range of sizes of
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equipment that could accomplish the
task) clamshell dredge that can easily
target the specific areas to be dredged.
The smaller equipment will also
minimize the amount of turbidity
resulting from the dredging activities.
The dredge material will be
immediately loaded onto a barge and
transported to a nearby terrestrial
disposal site at Piers 96 and 98, which
will allow for a shorter project duration.
When not in use, the clamshell dredge
and dredge barge will be parked as far
as feasible from the K Dock. After
starting engines in morning, the
clamshell dredge will be moved as
slowly as possible to the area to be
dredged and the dredge head lowered
slowly and carefully into the water.
As mentioned previously, if a Steller
sea lion of any age or a marine mammal
pup of any species is spotted at any time
during dredging operations, operations
will cease until the animal has left the
area.
Monitoring
The K dock haulout will be monitored
periodically during dredging activities
by two NMFS-approved observers
according to the following schedule:
(1) During the week prior to the
commencement of dredging activities,
morning counts will be taken every
morning at the same time. One
afternoon count will be taken at
approximately the same time the
dredging is scheduled to stop in the
following days.
(2) During the dredging operations:
(a) One count will be taken every
morning before dredging work begins
and every afternoon once operations
cease.
(b) On the first day of dredging and on
one other day near the end of dredging
operations, monitors will be present all
day (starting one hour before operations
begin and remaining until 2 hours after
operations cease) and they will
document specific behaviors as they
relate to specific aspects of the dredging
operations and other activities. An
additional count will be conducted 2
hours after dredging operations cease.
Rates of departure and arrival of animals
from/to the haulout will be noted.
(3) Following completion of the
dredging:
(a) Morning counts (taken at
approximately same time as those taken
previously (See 1)) will be made every
day for a week.
(b) An afternoon count will be
conducted the day after dredging ceases
and on the last day of the post-dredging
monitoring.
(4) During all monitoring periods the
following data will be recorded: date,
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52993
time, observer, tidal height, species
present, maximum number of animals
hauled out, number of adults and subadults, number of males and females (if
possible), any observed disturbances to
the animals, and the number of animals
disturbed (for example, if animals
flushed, reports should include the
number of animals that returned to the
water, and those that remained hauled
out). During periods of dredging a
description of dredging activities will
also occur (including location of dredge,
i.e., between J and K Docks, or between
I and J Docks).
Reporting
A draft report will be submitted to the
NMFS Southwest Regional
Administrator and the Office of
Protected Resources within 90 days after
project completion. A final report will
be submitted within 30 days of
receiving NMFS’ comments, if any, on
the draft report. The Report will
contain, analyze, and summarize the
information required under Monitoring,
above, as well estimating the number of
animals taken by Level B Harassment.
BMMI will share data collected as a
result of these monitoring activities with
other interested parties, such as the
Marine Mammal Center and other boat
marinas.
Numbers of Marine Mammals Expected
to be Harassed
The highest number of California sea
lions ever counted at one time on the K
Dock between June 1 and November 30
was 1244 individuals in August 2003.
The average number of individuals
counted at one time within the work
window since 2000 is lowest in July
(169) and highest in September (709).
The effects of the proposed dredging
activities are expected to be limited to
Level B Harassment in the form of shortterm startle responses and localized
behavioral changes. Based on an average
of 169 to 709 animals over the
maximum of 14 days, NMFS estimates
that California sea lions could be
exposed to audio or visual stimulus
likely to cause harassment between
2360 and 9930 times. However, based
on review of the Pier 39 observer logs
maintained over the last 14 years, which
indicate that sea lions may remain in
the area and haul out for several days in
a row at the K dock, NMFS estimates
that between 1180 to 4965 individual
animals will be harassed. The highest
total number of harbor seals ever seen
in one month between June 1 and
November 30 was 3 in November of
1997. NMFS anticipates that no more
than 3 Pacific harbor seals will be
harassed by this activity. These are
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Federal Register / Vol. 70, No. 171 / Tuesday, September 6, 2005 / Notices
small numbers relative to the size of the
affected species or stocks.
Possible Effects of Activities on Marine
Mammal Habitat
NMFS anticipates that the action will
result in minor and short-term effects on
marine mammal habitat, including a
temporary increase in the turbidity in
the area of the dredging and a temporary
decrease in the quality of K dock as a
haul-out site as a result of increased
visual and audio stimuli.
Possible Effects of Activities on
Subsistence Needs
There are no subsistence uses for
California sea lions or Pacific harbor
seals in California waters, and thus,
there are no anticipated effects on their
availability for subsistence uses.
Endangered Species Act (ESA)
Though a single Steller sea lion has
infrequently been sighted at the K Dock,
BMMI plans to cease dredging
operations immediately if one is seen,
and not begin dredging again until the
animal has left the area of its own
volition. NMFS does not anticipate any
impacts to Steller sea lions to result
from the issuance of the IHA.
In the 1998 programmatic Biological
Opinion addressing dredging in San
Francisco Bay, NMFS established a June
1 to November 30 work window for
dredging activities in the San Francisco
Bay to avoid impacts to steelhead trout
and Chinook salmon. BMMI proposes to
dredge between June 1 and November
30, and therefore NMFS does not
anticipate any impacts to ESA-listed
fish.
National Environmental Policy Act
(NEPA)
NMFS has conducted a preliminary
NEPA analysis and produced a draft
Environmental Assessment (EA) on the
Issuance of an IHA for the Incidental
Take, by Harassment, of Marine
Mammals During the Dredging of Pier
39, San Francisco, California.
Concurrently with the publication of
this document, the EA has been posted
on the NMFS website at: https://
www.nmfs.noaa.gov/protlres/PR2/
SmalllTake/
smalltakelinfo.htm#applications.
Public comments are solicited regarding
both the EA and this notice. NMFS will
issue a record of decision under NEPA
prior to the issuance or denial of this
IHA.
Preliminary Conclusions
NMFS has preliminarily determined
that the dredging activities described in
this document and in the application for
VerDate Aug<18>2005
13:21 Sep 02, 2005
Jkt 205001
an IHA may result in short-term and
localized changes in behavior by small
numbers of California sea lions and
Pacific harbor seals. While behavioral
modifications may be made by the seals,
including temporarily vacating the K
Dock haulout, this action is expected to
have a negligible impact on the animals.
In addition, no take by injury or death
is anticipated, and take by harassment
will be at the lowest level practicable
due to incorporation of the mitigation
measures mentioned previously in this
document.
NMFS has preliminarily determined
that the proposed activity would result
in the harassment of small numbers of
California sea lions and Pacific harbor
seals, and that the takings will have no
more than a negligible impact on these
marine mammal stocks. Accordingly,
NMFS proposes to issue an IHA to
BMMI for the potential harassment of
small numbers of California sea lions
and Pacific harbor seals incidental to
dredging around Pier 39, provided the
previously mentioned mitigation,
monitoring, and reporting requirements
are incorporated.
Information Solicited
NMFS requests interested persons to
submit comments, information, and
suggestions concerning this request (see
ADDRESSES).
Dated: August 30, 2005.
Donna Wieting,
Acting Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 05–17639 Filed 9–2–05; 8:45 am]
BILLING CODE 3510–22–S
COMMITTEE FOR THE
IMPLEMENTATION OF TEXTILE
AGREEMENTS
Announcement of Request for Bilateral
Textile Consultations with the
Government of the People’s Republic
of China and the Establishment of
Import Limits for Certain Cotton and
Man-made Fiber Brassieres and Other
Body Supporting Garments (Category
349/649) and Other Synthetic Filament
Fabric (Category 620), Produced or
Manufactured in the People’s Republic
of China
September 1, 2005.
Committee for the
Implementation of Textile Agreements
(Committee).
ACTION: Notice
AGENCY:
EFFECTIVE DATE:
August 31, 2005.
Ross
Arnold, International Trade Specialist,
FOR FURTHER INFORMATION CONTACT:
PO 00000
Frm 00016
Fmt 4703
Sfmt 4703
Office of Textiles and Apparel, U.S.
Department of Commerce, (202) 4824212. For information on the quota
status of these limits, refer to the Bureau
of Customs and Border Protection
website (https://www.cbp.gov), or call
(202) 344-2650. For information on
embargoes and quota re-openings, refer
to the Office of Textiles and Apparel
website at https://otexa.ita.doc.gov.
SUPPLEMENTARY INFORMATION:
Authority: Section 204 of the Agricultural
Act of 1956, as amended (7 U.S.C. 1854);
Executive Order 11651 of March 3, 1972, as
amended.
On August 31, 2005, as provided for
under paragraph 242 of the Report of the
Working Party on the Accession of
China to the World Trade Organization
(Accession Agreement), the United
States requested consultations with the
Government of the People’s Republic of
China with respect to imports of
Chinese-origin cotton and man-made
fiber brassieres and other body
supporting garments (Category 349/649)
and other synthetic filament fabric
(Category 620).
Paragraph 242 of the Accession
Agreements provides that, upon receipt
of the request, the People’s Republic of
China will hold its shipments to a level
no greater than 7.5 percent above the
amount entered during the first 12
months of the most recent 14 months
preceding the month in which the
request for consultations was made.
Because this restraint period will be for
less than 12 months, the quantitative
limit will be prorated to conform to the
number of days remaining in the year,
beginning on August 31, 2005 (i.e., by
a ratio of 123/365). Consistent with
paragraph 242, consultations with the
People’s Republic of China will be held
within 30 days of receipt of the request
for consultations, and every effort will
be made to reach agreement on a
mutually satisfactory solution within 90
days of receipt of the request for
consultations. If no mutually
satisfactory solution were reached
during this 90-day consultation period,
the United States could continue these
limits.
To ensure that the limitations
provided for under Paragraph 242 are
carried out, the Committee is
establishing prorated limits on Chineseorigin textile and apparel products in
Categories 349/649 and 620, beginning
on August 31, 2005, and extending
through December 31, 2005. If
agreement on a different limit is reached
as a result of the consultations with
China, the Committee will issue a
Federal Register Notice containing a
directive to the Bureau of Customs and
E:\FR\FM\06SEN1.SGM
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Agencies
[Federal Register Volume 70, Number 171 (Tuesday, September 6, 2005)]
[Notices]
[Pages 52990-52994]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-17639]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 052405C]
Small Take of Marine Mammals Incidental to Specified Activities;
Maintenance Dredging Around Pier 39, San Francisco, California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; receipt of application and proposed incidental
harassment authorization; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS has received an application from Bay Marina Management
Incorporated (BMMI) to take small numbers of marine mammals,
[[Page 52991]]
by harassment, incidental to dredging on the west side of the Pier 39
Marina on the San Francisco waterfront, CA. Under the Marine Mammal
Protection Act (MMPA), NMFS is requesting comments on its proposal to
issue an incidental harassment authorization (IHA) to BMMI for 1 year.
DATES: Comments and information must be received no later than October
6, 2005.
ADDRESSES: Comments on the application should be addressed to Steve
Leathery, Chief, Permits, Conservation and Education Division, Office
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910-3225. The mailbox address for
providing email comments is PR1.052405C@noaa.gov. NMFS is not
responsible for e-mail comments sent to addresses other than the one
provided here. Comments sent via e-mail, including all attachments,
must not exceed a 10-megabyte file size. Comments may also be submitted
via facsimile to (301) 427-2521. A copy of the application containing a
list of the references used in this document may be obtained by writing
to this address or by telephoning the contact listed here and is also
available at: https://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/
smalltake_info.htm#applications. Documents cited in this notice may be
viewed, by appointment, during regular business hours, at the
aforementioned address.
FOR FURTHER INFORMATION CONTACT: Jolie Harrison, (301) 713-2289, or
Monica DeAngelis, NMFS Southwest Region, (562) 980-3232.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional, taking of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region if certain findings are
made and either regulations are issued or, if the taking is limited to
harassment, a notice of a proposed authorization is provided to the
public for review.
Authorization may be granted if the Secretary finds that the total
taking will have a negligible impact on the species or stock(s), will
not have an unmitigable adverse impact on the availability of the
species or stock(s) for subsistence uses, and that the permissible
methods of taking and requirements pertaining to the monitoring and
reporting of such taking are set forth. NMFS has defined ``negligible
impact'' in 50 CFR 216.103 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.''
Subsection 101(a)(5)(D) of the MMPA established an expedited
process by which citizens of the United States can apply for an
authorization to incidentally take small numbers of marine mammals by
harassment. Except for certain categories of actions not pertinent
here, the MMPA defines ``harassment'' as:
any act of pursuit, torment, or annoyance which: (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [Level A harassment]; or (ii) has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[Level B harassment].
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS
review of an application followed by a 30-day public notice and comment
period on any proposed authorizations for the incidental harassment of
marine mammals. Within 45 days of the close of the comment period, NMFS
must either issue or deny issuance of the authorization.
Summary of Request
On August 9, 2004, NMFS received an application from Bay Marina
Management Incorporated (BMMI) requesting an IHA for the take, by
harassment, of small numbers of California sea lions (Zalophus
californianus) and Pacific harbor seals (Phoca vitulina) incidental to
the maintenance dredging the I, J, and K Docks on the west side of Pier
39 Marina on the San Francisco waterfront, California.
Description of the Activity
BMMI proposes to perform maintenance dredging using a small, self-
contained clamshell-style crane barge between docks I, J, and K at the
Pier 39 west marina. These maintenance measures are necessary to
maintain safe navigation depths at the marina, which currently has
reduced water depths attributed to the accretion of bay sediment. The
proposed dredging at Pier 39 will remove sediment to create water
depths in the project area of 9 ft (2.7 m) Mean Lower Low Water (MLLW),
plus an additional two-foot overdredge allowance. Dredging design area
limits (footprints) include the faces, approaches, and entrance
channels to each berthing area up to the limit of the adjacent pier.
Dredging will occur between June 1 and November 30 to avoid impacts to
steelhead trout and Chinook salmon.
Dredging operations at the Pier 39 west marina are expected to
occur in late fall of 2005 or the summer of 2006 and are estimated to
take approximately one to two weeks to complete. Dredge machinery would
operate from 8 a.m. to 3:30 p.m. daily. Approximately 13,000 yd\3\
(9,939 m\3\) of material would be removed. Material to be dredged will
be tested for pollutants and toxins by the Dredge Material Management
Office prior to approval to begin dredging, and deposition of dredged
materials will be deposited in accordance with local, state and federal
regulations. Once removed, the dredged material will be transferred to
Piers 96/98, which are owned and operated by the Port of San Francisco,
and from there it will be disposed of at an approved upland disposal
site.
The proposed dredging of the Pier 39 west berthing area will focus
on the channels and slips of I and J docks and half of the channel
between J and K docks. The original K dock was destroyed by the
combined weight of hundreds of California sea lions that frequently use
the area as a haul-out. Pier 39 replaced the damaged dock with a number
of ten by twelve-foot floats for the sea lions to use. Since there are
no actual berthing sites at K dock, no dredging will be necessary in
the area immediately surrounding or under K dock. The crane barge will
be situated at the furthest distance possible from K dock during each
dredging episode. The closest that the barge will be to the K dock
haul-out is when dredging the channel between J and K docks. When the
barge is dredging this channel it will be moored to the bayside of J
dock and extend the clamshell dredge arm out into the channel, towards
K dock. Since the distance between J and K docks is 100 ft (30 m) and
the barge is 30 ft (9 m) wide, it will never be positioned closer than
50 ft (15 m) to K dock at any time during the dredging project.
Description of Habitat and Marine Mammals Affected by the Activity
The marine mammal species known to be present at the Pier 39 Marina
area are the California sea lion (Zalophus californianus) and the
Pacific harbor seal (Phoca vitulina). Since 1993, a single adult male
Steller sea lion (Eumetopias jubatus) has been observed hauled out on K
dock intermittently during the months of July and August,
[[Page 52992]]
and occasionally in September (30 sightings in the last 10 years).
However, this project will not affect the Steller sea lion because
dredging activities will be halted if a Steller sea lion is observed.
Additional information on these species can be found in Marine
Mammal Stock Assessment Reports, which are available online at: https://
www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.
California Sea Lions
California sea lions range from southern Mexico to southwestern
Canada. In the U.S., they breed during July after pupping in late May
to June, primarily in the Channel Islands of California. Most
individuals breed on the Channel Islands off southern California and
off Baja and mainland Mexico, although a few pups have been born on Ano
Nuevo Island and this year a pup was born on the docks at Monterey and
subsequently transferred to Ano Nuevo Island with its mother. Following
the breeding season on the Channel Islands, most adult and sub-adult
males migrate northward to central and northern California and to the
Pacific Northwest, while most females and young animals either remain
on or near the breeding grounds throughout the year or move southward
or northward, as far as Monterey Bay.
Since nearing extinction in the early 1900's, the California sea
lion population has increased and is now growing at a rate of 5.4 to
6.1 percent per year (based on pup counts) with an estimated minimum
population of 138,881 animals. Actual population numbers may be as high
as 237,000 to 244,000 animals. The population is not listed as
``endangered'' or ``threatened'' under the Endangered Species Act
(ESA), nor is this species listed as ``depleted'' or as a ``strategic
stock'' under the MMPA.
California sea lions first appeared at Pier 39 in September, 1989.
Numbers of hauled-out sea lions were relatively low the first year and
K Dock was only used as a haul out from late summer through the winter.
Within a few years, larger numbers of sea lions were observed at K Dock
and they began using the haul-out throughout the year. The Marine
Mammal Center (MMC) began monitoring California sea lions at Pier 39 in
the late 1990's and counts indicate peak usage of K dock at Pier 39 in
May and early June, just prior to the breeding season. Although numbers
decrease during mid-summer, since most adults relocate to the rookeries
for pupping and breeding, some sea lions, of all age classes, remain in
the area and continue to haul out at Pier 39. Within the dredging work
window (June 1 to November 30) the largest numbers of California sea
lions are found at K Dock in the late summer and fall. The highest
number of individuals ever observed at once between June 1 and November
30 at Pier 39 to date was 1244, in August of 2003. If the number of
individuals observed at one count is averaged by month, from June to
November, since 2000, the averages range from 169 for July to 709 in
September. Since monitoring began in 1991, only 10 California sea lion
pups have been observed at Pier 39, in 1997 and 1998. These pups, which
were all weaned, most likely hauled out at K Dock due to the El Nino,
and pups are not expected at the project site in ``normal'' years.
Pacific Harbor Seals
Although not commonly observed at Pier 39, Pacific harbor seals
have been documented as visitors to K dock numerous times in the past
decade. Harbor seals range from Baja California in Mexico northward to
the Aleutian Islands of Alaska. The population estimate for the
California stock is 27,863 individuals (Caretta, et al., 2004) and is
relatively stable.
Harbor seals inhabit coastal waters within their range and prefer
sheltered bays and inlets to the exposed coastline. Daily haul-out
behavior of harbor seals is typically dependent on the tides, weather
and time of day. Harbor seals exhibit seasonal variation in
reproductive timing depending on geography. The pupping season for
California populations is in the spring, with populations in the San
Francisco Bay typically bearing young from March 15 through May 31
(Green et al., 2001). There are two active pupping sites in the San
Francisco Bay, Mowry Slough in the South Bay and Castro Rocks in the
North Bay. Pups have been observed at Yerba Buena Island and Corte
Madera Marsh in the San Francisco Bay. No births have been witnessed at
these locations, but Yerba Buena is thought to be a potential pupping
site. No harbor seal pups have ever been seen at Pier 39.
Annual counts of harbor seals at Pier 39 range from 0 seals
observed in 1999 and 2004, to a high of nine observations in 2000 for a
total of 28 observations between 1997-2004. No more than two harbor
seals have been observed hauled out simultaneously at any given time at
K Dock. No harbor seals have been observed hauling out at Pier 39 July
through September. No pups have been observed at Pier 39. Observations
by MMC volunteers indicate that observed harbor seals at Pier 39 tend
to distance themselves from the California sea lions hauling out in the
vicinity.
Potential Effects on Marine Mammals
The applicant requests authorization for incidental taking, by
Level B harassment, of California sea lions and Pacific harbor seals.
Level B harassment may occur if hauled animals flush the haulout and/or
move to increase their distance from dredging-related activities, such
as noise associated with dredging, presence of a crane barge, the
presence of workers, or unfamiliar activity in proximity to the haulout
site. This disturbance from acoustic and visual stimuli is the
principal means of marine mammal taking associated with these
activities.
Sudden brief noises have been shown to elicit startle reactions in
some pinnipeds. Novel looming visual stimuli may induce similar startle
reactions in pinnipeds. Daily engine starts and movements of the dredge
bucket and vessel may induce startled and/or flight behavior in marine
mammals using K dock as a haul out. However, this area has become a
tourist spot for viewing sea lions, and the current population of
animals utilizing K dock is accustomed to human activities and regular
noise levels from people, traffic, use of nearby boat slips, and other
marine operations. If animals do flush into the water, they may return
to the haul-out site immediately, stay in the water for a length of
time and then return to the haul-out, or temporarily haul-out at
another site. Many factors contribute to the degree of behavioral
modification, if any, including seasonality, group composition of the
pinnipeds, type of activity they are engaged in and what noises they
may be accustomed to experiencing. Short-term reactions such as startle
or alert reactions are unlikely to disrupt behavior patterns such as
migrating, breeding, feeding and sheltering and would not likely cause
serious injury to marine mammals.
The small, self-contained, clamshell dredge used for this activity
may produce noise of a sufficient level to harass marine mammals at K
dock. Measured sound energy levels (SELs) of similar equipment ranged
between 75-88 dBA (re 20 microPa) measured at 50 feet (the closest
distance that the dredge unit will be to K dock) (Boeing, 2005).
Results of an ongoing study at Vandenberg Air Force Base of the effects
of rocket launches on pinnipeds indicate that the percentage of Pacific
harbor seals leaving the haul-out increases with noise level up to an
SEL of approximately 100 dBA, after which almost all seals leave,
although recent data has shown that an increasing
[[Page 52993]]
percentage of seals have remained on shore, and those that remain are
adults. Though harbor seals are more sensitive to audio stimuli than
sea lions, these results indicate that animals are flushed at an SEL
less than 100 dBA, and it is possible that marine mammals at K Dock may
modify their behavior as a result of the lesser dredge noise.
If a startled reaction is accompanied by large-scale movements of
marine mammals, such as stampedes into the water, the disruption may
escalate into Level A harassment and could result in injury of
individuals, especially if pups are present. However, due to the
uniqueness of this particular haul-out area, the unlikely presence of
pups, and the proposed shut-down procedures should pups be sighted,
NMFS believes there is a very low likelihood of such injury occurring
at the Pier 39 site. Specifically, the haul-out consists of many
separate floating platforms that can hold up to about 25 marine mammals
each. If disrupted to the point of flushing off the platforms,
pinnipeds can quickly leap or roll into the water in any direction off
the relatively small platforms, avoiding a dangerous stampede-like
situation that may occur at normal haul-out locations such as exposed
rocks. Additionally, marine mammal pups use this haul-out very
infrequently (approximately 10 pups have been sighted at K Dock, in
1997 and 1998, during the El Nino), further reducing potential harm to
the species.
Over the last 13 years, BMMI has observed the sea lions either
ignore various unfamiliar intrusions and remain hauled out, or adapt to
them and eventually become acclimated and return to their normal
behavior. Disturbance from these proposed dredging activities is
expected to have a only a short-term negligible impact to a small
number of California sea lions and a few Pacific harbor seals. At a
maximum, short-term impacts are expected to result in a temporary
reduction in utilization of K dock as a haulout site while work is in
progress or until seals acclimate to the disturbance. The project is
not expected to result in any permanent reduction in the number of
animals at Pier 39. NMFS preliminarily agrees with BMMI that effects
will be limited to short-term and localized behavioral changes falling
within the MMPA definition of Level B harassment.
Mitigation
To minimize disturbance of marine mammals from visual and acoustic
stimuli associated with the dredging activities, BMMI will use a small
(relative to the range of sizes of equipment that could accomplish the
task) clamshell dredge that can easily target the specific areas to be
dredged. The smaller equipment will also minimize the amount of
turbidity resulting from the dredging activities. The dredge material
will be immediately loaded onto a barge and transported to a nearby
terrestrial disposal site at Piers 96 and 98, which will allow for a
shorter project duration.
When not in use, the clamshell dredge and dredge barge will be
parked as far as feasible from the K Dock. After starting engines in
morning, the clamshell dredge will be moved as slowly as possible to
the area to be dredged and the dredge head lowered slowly and carefully
into the water.
As mentioned previously, if a Steller sea lion of any age or a
marine mammal pup of any species is spotted at any time during dredging
operations, operations will cease until the animal has left the area.
Monitoring
The K dock haulout will be monitored periodically during dredging
activities by two NMFS-approved observers according to the following
schedule:
(1) During the week prior to the commencement of dredging
activities, morning counts will be taken every morning at the same
time. One afternoon count will be taken at approximately the same time
the dredging is scheduled to stop in the following days.
(2) During the dredging operations:
(a) One count will be taken every morning before dredging work
begins and every afternoon once operations cease.
(b) On the first day of dredging and on one other day near the end
of dredging operations, monitors will be present all day (starting one
hour before operations begin and remaining until 2 hours after
operations cease) and they will document specific behaviors as they
relate to specific aspects of the dredging operations and other
activities. An additional count will be conducted 2 hours after
dredging operations cease. Rates of departure and arrival of animals
from/to the haulout will be noted.
(3) Following completion of the dredging:
(a) Morning counts (taken at approximately same time as those taken
previously (See 1)) will be made every day for a week.
(b) An afternoon count will be conducted the day after dredging
ceases and on the last day of the post-dredging monitoring.
(4) During all monitoring periods the following data will be
recorded: date, time, observer, tidal height, species present, maximum
number of animals hauled out, number of adults and sub-adults, number
of males and females (if possible), any observed disturbances to the
animals, and the number of animals disturbed (for example, if animals
flushed, reports should include the number of animals that returned to
the water, and those that remained hauled out). During periods of
dredging a description of dredging activities will also occur
(including location of dredge, i.e., between J and K Docks, or between
I and J Docks).
Reporting
A draft report will be submitted to the NMFS Southwest Regional
Administrator and the Office of Protected Resources within 90 days
after project completion. A final report will be submitted within 30
days of receiving NMFS' comments, if any, on the draft report. The
Report will contain, analyze, and summarize the information required
under Monitoring, above, as well estimating the number of animals taken
by Level B Harassment. BMMI will share data collected as a result of
these monitoring activities with other interested parties, such as the
Marine Mammal Center and other boat marinas.
Numbers of Marine Mammals Expected to be Harassed
The highest number of California sea lions ever counted at one time
on the K Dock between June 1 and November 30 was 1244 individuals in
August 2003. The average number of individuals counted at one time
within the work window since 2000 is lowest in July (169) and highest
in September (709). The effects of the proposed dredging activities are
expected to be limited to Level B Harassment in the form of short-term
startle responses and localized behavioral changes. Based on an average
of 169 to 709 animals over the maximum of 14 days, NMFS estimates that
California sea lions could be exposed to audio or visual stimulus
likely to cause harassment between 2360 and 9930 times. However, based
on review of the Pier 39 observer logs maintained over the last 14
years, which indicate that sea lions may remain in the area and haul
out for several days in a row at the K dock, NMFS estimates that
between 1180 to 4965 individual animals will be harassed. The highest
total number of harbor seals ever seen in one month between June 1 and
November 30 was 3 in November of 1997. NMFS anticipates that no more
than 3 Pacific harbor seals will be harassed by this activity. These
are
[[Page 52994]]
small numbers relative to the size of the affected species or stocks.
Possible Effects of Activities on Marine Mammal Habitat
NMFS anticipates that the action will result in minor and short-
term effects on marine mammal habitat, including a temporary increase
in the turbidity in the area of the dredging and a temporary decrease
in the quality of K dock as a haul-out site as a result of increased
visual and audio stimuli.
Possible Effects of Activities on Subsistence Needs
There are no subsistence uses for California sea lions or Pacific
harbor seals in California waters, and thus, there are no anticipated
effects on their availability for subsistence uses.
Endangered Species Act (ESA)
Though a single Steller sea lion has infrequently been sighted at
the K Dock, BMMI plans to cease dredging operations immediately if one
is seen, and not begin dredging again until the animal has left the
area of its own volition. NMFS does not anticipate any impacts to
Steller sea lions to result from the issuance of the IHA.
In the 1998 programmatic Biological Opinion addressing dredging in
San Francisco Bay, NMFS established a June 1 to November 30 work window
for dredging activities in the San Francisco Bay to avoid impacts to
steelhead trout and Chinook salmon. BMMI proposes to dredge between
June 1 and November 30, and therefore NMFS does not anticipate any
impacts to ESA-listed fish.
National Environmental Policy Act (NEPA)
NMFS has conducted a preliminary NEPA analysis and produced a draft
Environmental Assessment (EA) on the Issuance of an IHA for the
Incidental Take, by Harassment, of Marine Mammals During the Dredging
of Pier 39, San Francisco, California. Concurrently with the
publication of this document, the EA has been posted on the NMFS
website at: https://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/
smalltake_info.htm#applications. Public comments are solicited
regarding both the EA and this notice. NMFS will issue a record of
decision under NEPA prior to the issuance or denial of this IHA.
Preliminary Conclusions
NMFS has preliminarily determined that the dredging activities
described in this document and in the application for an IHA may result
in short-term and localized changes in behavior by small numbers of
California sea lions and Pacific harbor seals. While behavioral
modifications may be made by the seals, including temporarily vacating
the K Dock haulout, this action is expected to have a negligible impact
on the animals. In addition, no take by injury or death is anticipated,
and take by harassment will be at the lowest level practicable due to
incorporation of the mitigation measures mentioned previously in this
document.
NMFS has preliminarily determined that the proposed activity would
result in the harassment of small numbers of California sea lions and
Pacific harbor seals, and that the takings will have no more than a
negligible impact on these marine mammal stocks. Accordingly, NMFS
proposes to issue an IHA to BMMI for the potential harassment of small
numbers of California sea lions and Pacific harbor seals incidental to
dredging around Pier 39, provided the previously mentioned mitigation,
monitoring, and reporting requirements are incorporated.
Information Solicited
NMFS requests interested persons to submit comments, information,
and suggestions concerning this request (see ADDRESSES).
Dated: August 30, 2005.
Donna Wieting,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 05-17639 Filed 9-2-05; 8:45 am]
BILLING CODE 3510-22-S