Takes of Marine Mammals Incidental to Specified Activities; Construction and Race Event Activities for the 34th America's Cup in San Francisco Bay, CA, 47603-47617 [2012-19554]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Notices]
[Pages 47603-47617]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19554]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC031


Takes of Marine Mammals Incidental to Specified Activities; 
Construction and Race Event Activities for the 34th America's Cup in 
San Francisco Bay, CA

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
America's Cup Event Authority (ACEA) and the Port of San Francisco 
(Port) to incidentally harass, by Level B harassment only, several 
species of

[[Page 47604]]

marine mammals during construction activities associated with the 34th 
America's Cup in San Francisco Bay.

DATES: This authorization is effective for a period of 1 year from the 
date of issuance.

ADDRESSES: A copy of the IHA and related documents are available by 
writing to Michael Payne, Chief, Permits and Conservation Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910.
    A copy of the application, including references used in this 
document, may be obtained by visiting the Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. For those members of the 
public unable to view these documents on the internet, a copy may be 
obtained by writing to the address specified above or telephoning the 
contact listed below (see FOR FURTHER INFORMATION CONTACT). Associated 
documents prepared pursuant to the National Environmental Policy Act 
(NEPA) are also available at the same site. Documents cited in this 
notice may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

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

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 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 issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
published in the Federal Register to provide public notice and initiate 
a 30-day comment period.
    Authorization for incidental taking shall be granted if we find 
that the 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 (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. We have 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.''
    Section 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 Level B 
harassment as defined below. Section 101(a)(5)(D) establishes a 45-day 
time limit for our 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, we must either issue or deny the authorization. If 
authorized, an IHA may be effective for a maximum of one year from date 
of issuance.
    Except with respect to certain activities 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].''

Summary of Request

    We received an adequate and complete application on April 27, 2012, 
from ACEA and the Port requesting issuance of an IHA for the taking, by 
Level B harassment only, of marine mammals incidental to activities 
conducted in support of the 34th America's Cup (AC34) in San Francisco, 
California. A series of yacht races will be held in San Francisco Bay 
during 2012-13. The specified activities include the installation of 
temporary dock facilities along with certain permanent improvements at 
the venue sites to accommodate the AC34 events; these activities will 
require pile driving and will be conducted in advance of AC34 events. 
Components of the AC34 race events that may result in harassment of 
marine mammals include helicopter operations and fireworks displays. 
Authorization of incidental take was requested for the harbor seal 
(Phoca vitulina), California sea lion (Zalophus californianus), harbor 
porpoise (Phocoena phocoena), and elephant seal (Mirounga 
angustirostris). Based on the best available information, we have 
authorized the applicants to incidentally harass up to 14,063 
California sea lions, 686 harbor seals, 63 harbor porpoises, and two 
northern elephant seals during the IHA, which is valid for one year 
from the date of issuance. Any activities that may result in incidental 
harassment of marine mammals that fall outside of the 1-year period of 
validity will require subsequent authorization.

Description of the Specified Activity

    The America's Cup (AC34) is a series of sailing regattas and match 
races to be held in San Francisco Bay (the Bay) in 2012-13. These were 
described in greater detail in the Federal Register notice of proposed 
authorization (hereafter, the FR notice; 77 FR 32573; June 1, 2012) and 
will not be repeated here. A number of project sites, or venues, which 
will provide all aspects of AC34 facilities and services are planned to 
accommodate these events. Construction of these venues will require 
pile driving for the installation of temporary floating docks as well 
as for permanent improvements to existing waterfront facilities. 
Helicopters will be used for AC34 2012 and 2013 races to serve 
broadcasting and media operations. Commercial-grade fireworks displays 
are planned at the opening and closing ceremonies for the 2013 
America's Cup events only. The action area (i.e., San Francisco Bay) 
was described in greater detail in the FR notice.
    Temporary floating docks will be installed utilizing 18-in steel 
pipe piles; all piles for floating docks will be installed via 
vibratory pile driver only. Floating docks will be located at Piers 80, 
30-32, 14 North, 9, 23 North and South, 27 South, 29 and adjacent to 
Marina Green (please see Figure 1 of the AC34 application for location 
overview and Figures 3-9 for detailed location diagrams). The floating 
docks will be installed at various stages starting in late summer of 
2012 and extending through the spring of 2013. A total of 244 18-in 
steel pipe piles will be installed for temporary floating docks; 
project engineers estimate that a maximum of eight piles may be 
installed per day. Accounting for unforeseen delays, installation of 
floating docks is expected to require approximately 2 weeks at each 
location (with varying amounts of actual pile driving days), although 
the time may vary depending on number of piles to be driven and any 
unforeseen difficulties. In addition, repairs and improvements are 
planned for Pier 19 (see Figure 8 of the application for a site plan). 
Pier 19 repairs will require driving of 224 12-in wood piles; these 
will be installed via impact hammer with an estimated maximum 
production rate of eight piles per day. Pier 19 repairs are expected to 
require

[[Page 47605]]

approximately 28 days over the course of 4 months. Table 1 details the 
extent and location of pile driving activity.

------------------------------------------------------------------------
                                                               Number of
                           Location                              piles
------------------------------------------------------------------------
Pier 80......................................................         26
Pier 32 South................................................         27
Pier 14 North................................................         44
Pier 9.......................................................         15
Pier 23 North................................................         21
Pier 23 South................................................         16
Pier 27......................................................         55
Pier 29 East.................................................          5
Pier 29 North................................................         21
Marina Green offshore........................................         14
                                                              ----------
    Total piles for vibratory installation...................        244
Pier 19 *....................................................        224
------------------------------------------------------------------------
* Pier 19 repairs will require impact driving of 12-in wood piles. All
  other piles will be 18-in steel piles installed with vibratory driver.

    Depending on the location and logistics, piles will likely be 
installed from existing deck structures using land-based pile driving 
equipment or from a barge. Impact pile driving will not occur 
concurrently with any other known project using an impact hammer; 
however, there will be no restriction on concurrent vibratory driving. 
Vibratory pile driving for installation of floating docks is planned 
for late summer of 2012 and approximately March through June of 2013, 
while installation of 12-inch wood piles at Pier 19 is planned for 
sometime between August and December 2012.
    A brief overview of plans for the actual race events was provided 
in the FR notice. Because we do not plan to authorize take of marine 
mammals incidental to these activities, they were not described in 
detail. However, several commenters raised concerns relating to the 
potential for take incidental to race activities, whether from direct 
vessel strike or from behavioral harassment resulting from the presence 
of increased numbers of vessels associated with race activities. These 
concerns are addressed in greater detail later in this document (see 
``Comments and Responses'').
    Helicopters will be used for AC34 2012 and 2013 races to serve 
broadcasting and media operations. The helicopters following each race 
will fly between 100 and 400 feet above sea level (asl; 30-122 m) 
within the race area. The coordination of the helicopters during race 
events will be such that one or two will stay above 400 ft asl and 
other helicopters will fly between 100-400 ft asl to more closely cover 
the racing action. To protect sensitive avian species, the project 
sponsors will restrict helicopter operations such that they will avoid 
the air space within at least 1,000 ft (vertically and horizontally; 
305 m) around Alcatraz Island and Crissy Beach Wildlife Protection 
Area; these measures will also mitigate any possibility of incidental 
harassment of marine mammals at these locations. During flight 
operations, helicopters will minimize impacts to pinnipeds at Pier 39 
by avoiding low flying (less than 100 ft asl). Final details of 
helicopter operations will be provided in the Water and Air Traffic 
Plan that will be developed and implemented for AC34 prior to any race 
and/or helicopter events.
    Commercial grade fireworks displays are planned at the opening and 
closing ceremonies for the 2013 AC events only; therefore, it is likely 
that no fireworks events will occur during the 1-year period of 
validity for this IHA. However, this potentially harassment-inducing 
activity is precautionarily considered here to provide the event 
organizers with flexibility in scheduling such events. The location of 
the fireworks barge will be near Piers 27-29 and up to four fireworks 
displays will occur lasting 30-45 minutes each. It is anticipated that 
aerial shells will be launched to altitudes of 200 to 1,000 ft (61-305 
m) where they will explode and ignite internal burst charges and 
incendiary chemicals. Most of the incendiary elements and shell casings 
burn up in the atmosphere; however, portions of the casings and some 
internal structural components and chemical residue fall back to the 
ground or water, depending on prevailing winds. The project sponsors 
have coordinated and will continue to coordinate with the USCG 
regarding limitations on the location, frequency and duration of the 
fireworks to minimize potential environmental impacts. Any fireworks 
displays will be subject to approval by the USCG through the USCG 
Marine Event Permit process.

Description of Sound Sources and Distances to Thresholds

    An in-depth description of sound sources in general was provided in 
the FR notice (77 FR 32573; June 1, 2012). In-water construction 
activities associated with the project will include impact and 
vibratory pile driving. The sounds produced by these activities are 
considered pulsed and non-pulsed (and specifically continuous), 
respectively. The distinction between these two general sound types is 
important because they have differing potential to cause physical 
effects, particularly with regard to hearing (e.g., Ward, 1997 in 
Southall et al., 2007). Please see Southall et al., (2007) for an in-
depth discussion of these concepts.
    Since 1997, we have used generic sound exposure thresholds as 
guidelines to estimate when harassment may occur. Current practice 
regarding exposure of marine mammals to sound defines thresholds as 
follows: Cetaceans and pinnipeds exposed to sound levels of 180 and 190 
dB root mean square (rms; note that all underwater sound levels in this 
document are referenced to a pressure of 1 [micro]Pa) or above, 
respectively, are considered to have been taken by Level A (i.e., 
injurious) harassment, while behavioral harassment (Level B) is 
considered to have occurred when marine mammals are exposed to sounds 
at or above 120 dB rms for continuous sound (such as will be produced 
by vibratory pile driving) and 160 dB rms for pulsed sound (produced by 
impact pile driving), but below injurious thresholds. For airborne 
sound, pinniped disturbance from haul-outs has been documented at 100 
dB (unweighted) for pinnipeds in general, and at 90 dB (unweighted) for 
harbor seals (note that all airborne sound levels in this document are 
referenced to a pressure of 20 [micro]Pa).
    The underwater acoustic environment consists of ambient sound, 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The ambient underwater sound 
level of a region is defined by the total acoustical energy being 
generated by known and unknown sources, including sounds from both 
natural and anthropogenic sources. The sum of the various natural and 
anthropogenic sound sources at any given location and time depends not 
only on the source levels (as determined by current weather conditions 
and levels of biological and industrial or other anthropogenic 
activity) but also on the ability of sound to propagate through the 
environment. In turn, sound propagation is dependent on the spatially 
and temporally varying properties of the water column and sea floor, 
and is frequency-dependent. As a result of the dependence on a large 
number of varying factors, the ambient sound levels at a given 
frequency and location can vary by 10-20 dB from day to day (Richardson 
et al., 1995). Ambient underwater sound levels are comprised of 
multiple sources, including physical (e.g., waves, earthquakes, ice, 
atmospheric sound), biological (e.g., sounds produced by marine 
mammals, fish, and invertebrates), and anthropogenic sound (e.g., 
vessels, dredging, aircraft,

[[Page 47606]]

construction). Because the San Francisco waterfront is a heavily used 
urban and industrial environment, anthropogenic sound creates a 
typically loud environment. In San Francisco Bay, the average broadband 
ambient underwater sound levels were measured at 133 dB re 1[micro]Pa 
in the Oakland Outer Harbor (Strategic Environmental Consulting, Inc., 
2004).
    There is a general lack of information regarding the sound source 
levels for driving of timber piles in the available literature. 
However, underwater sound produced by impact driving of 12-in timber 
piles with use of cushion blocks, as is planned for the specified 
activity, has been measured in the Bay area at 170 dB rms at 10 m 
(Caltrans, 2007). Caltrans (2007) has also measured SPLs associated 
with vibratory pile driving in the Bay area; vibratory driving for 12-
in steel pipe piles was measured at 155 dB rms and for 36-in steel pipe 
piles at 170 dB rms, both at 10 m distance. Averaging these values 
provides a conservative estimate of 162.5 dB rms for 18-in piles, as 
will be used in the specified activities. Using practical spreading 
loss--4.5 dB reduction in level for each doubling of distance from the 
source--to approximate site-specific sound propagation characteristics, 
these data provide estimated source levels of 185 dB rms for impact 
driving of 12-in timber piles with use of a cushion block and 177.5 dB 
rms for vibratory driving of 18-in steel pipe piles. On the basis of 
these estimated source levels, the estimated distances to various 
thresholds (presented for reference only) are presented in Table 2. 
Impact pile driving activity is not likely to produce SPLs of 
sufficient intensity to potentially cause injury to pinnipeds (i.e., 
190 dB rms), and SPLs produced by vibratory pile driving will likely be 
low enough to preclude the potential for injury to any marine mammal 
(i.e., below 180 dB rms).

     Table 2--Estimated Distances to Underwater Marine Mammal Sound
                     Thresholds During Pile Driving
------------------------------------------------------------------------
                                                               Distance
                         Threshold                               (m)
------------------------------------------------------------------------
Impact driving, pinniped injury (190 dB)...................          n/a
Impact driving, cetacean injury (180 dB)...................          2.2
Impact driving, disturbance (160 dB).......................           46
Impact driving, airborne disturbance (100 dB)..............          5.3
Impact driving, airborne disturbance (90 dB)...............           17
Vibratory driving, pinniped injury (190 dB)................          n/a
Vibratory driving, cetacean injury (180 dB)................          n/a
Vibratory driving, disturbance (133 dB \1\)................          926
Vibratory driving, airborne disturbance (100 dB)...........          6.8
Vibratory driving, airborne disturbance (90 dB)............           22
------------------------------------------------------------------------
* Distance to disturbance zone calculated on basis of ambient sound
  measurement of 133 dB rms in vicinity of San Francisco waterfront.
  Marine mammals present in the project area are likely acclimated to
  non-pulsed sound at levels well above NMFS' threshold for harassment
  for these types of sound (i.e., 120 dB rms).

    There is a general lack of data regarding airborne SPLs from 
similar pile driving events; however, acoustic monitoring of pile 
driving events conducted recently by the U.S. Navy in Hood Canal 
provides approximate source levels of 114.5 and 116.7 dB rms for impact 
driving and vibratory driving, respectively, of steel piles of 24- to 
48-in diameter. Impact driving of 12-in timber piles with a cushion 
block will likely produce sound at somewhat lower intensity. It is 
extremely unlikely that pinnipeds will be exposed to airborne SPLs 
above the relevant thresholds, given the source levels and likely 
distance between pinnipeds and the activity. Please see Table 2 for 
estimated distances to thresholds.

Comments and Responses

    We published a notice of receipt of the AC34 application and 
proposed IHA in the Federal Register on June 1, 2012 (77 FR 32573). We 
received comments from the Marine Mammal Commission (Commission), 
Golden Gate Cetacean Research (GGCR), The Marine Mammal Center 
(Center), Oceanic Society Expeditions (OSE), and a private citizen. 
Several commenters expressed concern that the potential for interaction 
between marine mammals and AC34-related vessels during race events was 
underestimated. Specifically, commenters believed that interaction 
could occur between vessels and small cetaceans or pinnipeds, and that 
we did not consider the best available information for harbor porpoise. 
These concerns are addressed with greater specificity in comment 
response. However, we do not believe that take incidental to race 
events is likely to occur, as described below. With regard to the 
potential for vessel strike resulting from race events, we believe 
measures that will be developed and implemented by the Port, ACEA, and 
the USCG (the permitting authority for race events), in cooperation 
with interested parties such as GGCR, will be sufficient to mitigate 
the possibility of vessel strikes. In the event that a vessel strike 
did occur and could be connected to the AC34 race events, it would be 
considered an unauthorized take under the MMPA and could be subject to 
enforcement action.
    In addition, it was pointed out that we did not address three 
species with known occurrence in San Francisco Bay: Bottlenose dolphin 
(Tursiops truncatus), Steller sea lion (Eumetopias jubatus), and minke 
whale (Balaenoptera acutorostrata). The information provided in 
relation to the occurrence of these three species in the Bay did not 
lead us to believe that authorization of incidental take is warranted; 
the information provided by commenters may be found in ``Description of 
Marine Mammals in the Area of the Specified Activity''. The comments, 
and our responses, are provided here. We have determined that the 
mitigation measures described here will effect the least practicable 
impact on the species or stocks and their habitats.
    Comment 1: The Commission recommends that we assess and use the 
average ambient sound level minus two standard deviations down to the 
120-dB re 1 [mu]Pa threshold as a basis for establishing the Level B 
harassment zone for vibratory pile driving.
    Response: For this action, we concur and will implement the 
Commission's recommended approach.
    Comment 2: The Commission recommends that we require the applicants 
to implement soft-start procedures after 15 minutes if pile driving was 
delayed or shut down because of the presence of a marine

[[Page 47607]]

mammal within or approaching the shutdown zone and observers did not 
see that marine mammal leave the zone.
    Response: We disagree with this recommendation. The Commission 
believes it is possible that marine mammals may remain in the shutdown 
zone beyond the 15 minute required clearance period and not be 
observed, thus creating a risk of exposure to sound that could result 
in unauthorized Level A harassment. While this is possible in theory, 
we find it extremely unlikely that an animal could remain undetected in 
such a small zone and under typical observation conditions at the San 
Francisco waterfront. Vibratory driving for this activity is unlikely 
to produce sound levels above 180 dB rms, while impact driving of 12-in 
timber piles with a cushion block is predicted to produce sound levels 
exceeding 180 dB rms at a distance of only 2.2 m from the pile being 
driven. Neither activity is expected to produce sound exceeding 190 dB 
rms. It is highly unlikely that a marine mammal could remain within a 
radius of 10 m (i.e., the radial distance to the conservative shutdown 
zone to be established by the Port) and not be detected, much less 2.2 
m (i.e., the predicted radial distance to the 180 dB isopleths). 
Further, the required protocol for shutdowns and restarts (assuming the 
animal is not observed to exit the defined shutdown zone) is founded 
upon the premise that, based upon dive times and breathing patterns, 
small cetaceans and pinnipeds are typically unlikely to remain within 
variably-sized, but usually small, shutdown zones for longer than 15 
minutes. A requirement to implement soft-start following a 15 minute 
shutdown would implicitly reject that premise, i.e., there is no reason 
to make such a requirement if, as we believe, the 15 minute shutdown 
period is sufficient for small cetaceans and pinnipeds to clear a 
defined shutdown zone. We would be interested in and would carefully 
review any information from the public potentially demonstrating that 
the 15 minute shutdown period is insufficient.
    We believe the possibility of a marine mammal remaining undetected 
in the shutdown zone, in relatively shallow water, for greater than 15 
minutes is discountable. A requirement to implement soft-start after 
every shutdown or delay less than 30 minutes in duration would be 
impracticable, potentially resulting in significant construction delays 
and therefore extending the overall time required for the project, and 
thus the number of days on which disturbance of marine mammals could 
occur.
    Comment 3: The Commission recommends that we require the applicants 
to monitor before, during, and after all soft-starts of vibratory and 
impact pile driving to gather the data needed to determine the 
effectiveness of this technique as a mitigation measure.
    Response: The Commission states that the effectiveness of the soft-
start technique as a mitigation measure has yet to be empirically 
verified, and that we should not assume that these procedures 
constitute an effective mitigation measure. While the Commission is 
correct in that the effectiveness of the technique has yet to be 
empirically verified, we would note that we have never made any claims 
as to any specific degree of efficacy nor have we ever attempted to 
reflect such an assumption in our estimations of potential incidental 
take. We do believe it reasonable to expect that the use of soft-start 
procedures may mitigate the effects of pile driving activity and, in 
the absence of empirical study, are often required to use measures on 
the basis of presumed rather than demonstrated efficacy. However, we 
share with the Commission the desire to empirically verify the efficacy 
of any measures required, including soft-start, and would welcome 
suggestions on how best to design and conduct a study accomplishing 
that goal.
    The presumed efficacy of soft-start rests upon the premise that, if 
a sound is unpleasant to marine mammals, they will generally move away 
from it, behavioral context notwithstanding. Therefore, if sound is 
introduced into the marine environment gradually, or at a lower level 
than would be produced by full-power pile driving, marine mammals 
should have the opportunity to depart the area of effect before being 
exposed to maximum sound pressure levels. Any study of soft-start 
procedures should address questions relating to these assumptions, 
e.g., what behavior marine mammals exhibit in response to soft-starts 
and whether sound pressure levels produced during soft-starts are lower 
than those produced during full-power driving.
    The U.S. Navy completed a pile driving project in the Hood Canal, 
Washington, during 2011. As part of the monitoring effort required for 
that project, we requested the Navy to investigate the efficacy of 
soft-start. Their study was generally inconclusive: during vibratory 
pile driving, sound levels during soft-starts were typically lower than 
levels measured at the initiation and completion of driving; however, 
levels varied considerably during driving and were at times lower than 
those produced during the soft-starts. Mean levels during soft-start 
were approximately 2 dB lower than those produced during continuous 
driving, but measured values ranged from 16 dB louder during soft-start 
than during continuous driving to 14 dB louder during continuous 
driving--a range of 30 dB. As such, it is difficult to assign a level 
that describes how much lower the soft-start sound levels were than 
continuous driving levels. For impact pile driving, data show more 
consistently that levels were generally lower during soft-starts than 
during full-power driving, by approximately 4.5 dB. Overall, behavioral 
monitoring showed minimal variation in the frequency at which most 
behavioral patterns were observed among different construction 
categories (soft-starts, vibratory pile driving, and impact pile 
driving) and non-construction time periods. Animals were occasionally 
noted diving in conjunction with the onset of soft-start events and 
subsequently reemerging further away and continuing their previous 
movements. However, diving behaviors associated with a soft-start event 
occurred with the same frequency as diving behaviors during non-pile 
driving times. Despite the inconclusive nature of this opportunistic 
study, we see value in continuing to request the collection of such 
information from applicants within the context of agreed-upon 
monitoring plans. However, it is unclear how expanded monitoring in 
this case, in the absence of specific experimental design, would 
satisfy the Commission's request for empirical verification of 
efficacy.
    Comment 4: The Commission recommends that we require the applicants 
to monitor the Level A and B harassment zones to detect the presence 
and characterize the behavior of marine mammals during all vibratory 
and impact pile driving activities.
    Response: We proposed, in conjunction with the applicants, that 
monitoring be conducted during all impact pile driving and for no less 
than one-third of total vibratory pile driving days. The Commission 
believes that this level of monitoring effort is not sufficient, and 
that monitoring should be conducted during 100 percent of pile driving 
activity. The Commission states that because marine mammal reactions to 
different sources of disturbance are not always predictable, continuous 
monitoring is the only way to ensure that unexpected reactions are 
detected, documented, and evaluated. We agree that marine mammal 
reactions to a given stimulus are not always predictable; however, the 
monitoring effort is allocated such that days when extreme reactions 
might be more likely

[[Page 47608]]

(i.e., when activity begins at a new site) as well as days that are 
representative of typical levels of activity are accounted for. Marine 
mammal reactions to continuous sound, such as is produced by vibratory 
pile driving, have not typically been observed to be extreme or 
unexpected. The purpose of this monitoring is to verify the number and 
intensity of behavioral reactions that might be considered incidental 
takes, and the monitoring plan is sufficient to accomplish that task. 
Further, while dedicated observers are not present during the non-
monitored days, construction personnel and project staff are on-site. 
While lacking the specialized training required of biological 
observers, they are capable of noticing extreme behavioral reactions of 
smaller marine mammals or the presence of large whales occurring within 
1,000 m of the shore, and notifying the project monitoring team or 
implementing shutdown as appropriate. Should extreme reactions of 
marine mammals occur in response to vibratory pile driving (which will 
not produce sound exceeding thresholds for Level A harassment), the 
applicants will stop the activities and consult with us.
    In addition, we considered and rejected this expanded plan when 
developing the proposed IHA, and provided a discussion of the reasoning 
and justification for that decision in the proposed IHA FR notice. 
Please see that discussion for complete justification of this decision. 
The Commission has not provided any new information that would change 
our determination that the monitoring plan is sufficient when 
considering benefit to the species and practicability for the 
applicant.
    Comment 5: GGCR recommends that we require the establishment of a 
marine mammal observer network to monitor the presence of marine 
mammals during all AC34 race events, especially those attracting large 
crowds of spectator vessels. Additionally, GGCR suggests conducting 
pre- and post-race studies to both verify the distribution of marine 
mammals prior to racing events and to determine any long-term effects. 
The Center also expressed concern about potential incidental take from 
race events and the lack of an effective monitoring and mitigation plan 
for such incidents involving small cetaceans or pinnipeds. A private 
citizen noted that the spectator fleet associated with AC34 race events 
will cause increased levels of ambient sound in the Central Bay and 
expressed concern that this may result in acoustic masking, increasing 
the probability of vessel strike.
    Response: We thank the commenters for their concerns and for the 
information presented. Before addressing those concerns, we need to 
correct an inaccuracy found in the GGCR comment letter and provide 
additional information. First, GGCR states that ACEA is predicting over 
5,000 spectator vessels on peak days for the 2013 race events. In fact, 
ACEA predicts that a maximum of 880 boats would be on the water during 
a peak day in 2013, and that 80 percent of these would be sailboats 
(i.e., smaller vessels incapable of high rates of speed or erratic 
maneuvering). An estimated maximum of 340 boats would be present during 
peak days for 2012 events. Please see ``America's Cup 34 Visitation 
Analysis,'' provided on our Web site. Second, GGCR believes that, 
depending on tidal cycle, harbor porpoises could be blocked from 
entering or leaving the Bay. However, the USCG's Special Local 
Regulations allow for the races to take place only between 11 a.m. and 
4 p.m. on race days, meaning that races will take less than five hours. 
Although it will take additional time following the close of racing for 
spectator vessels to disperse, it seems unlikely that movements would 
be completely blocked over the diel cycle (i.e., 24-hour cycle).
    There are two avenues by which take of marine mammals incidental to 
race events might occur: Behavioral harassment (resulting from vessel 
noise and/or the physical presence of large numbers of vessels) and 
direct strike. According to information available from GGCR, the areas 
with greatest frequency of harbor porpoise sightings are in the 
vicinity of the Golden Gate, primarily within approximately 2-3 km to 
the east of the bridge, and the waters between Angel Island and 
Tiburon. The primary race area, as designated by the USCG, overlaps a 
portion of this area in the Central Bay and along the south shore to 
the east of the bridge, although the bulk of the primary race area and 
designated transit zone do not overlap with the areas of highest 
sighting frequency. Harbor porpoises could occur within most of the 
primary race area.
    We do not propose to authorize take incidental to AC34 race events. 
We believe that any effects on marine mammals stemming from race events 
could occur through behavioral responses to spectator vessels and that 
direct strike of a marine mammal is unlikely. All vessels associated 
with race events will be subject to USCG restrictions, and spectator 
vessels will congregate in designated areas or transit the race area 
through a designated transit zone at low levels of speed. The actual 
racing yachts will travel at much higher rates of speed, but in much 
lesser numbers and on more predictable courses. We believe it most 
likely that harbor porpoises would avoid areas with a high density of 
spectator vessels. One commenter expressed concern that vessel noise 
from spectator vessels could result in acoustic masking, making it more 
likely that harbor porpoises may not detect the vessels and be unable 
to avoid strike. We find this unlikely, as most vessels produce sound 
that, while audible to harbor porpoises, is well below their range of 
best hearing (Richardson et al., 1995; Southall et al., 2007).
    Richardson et al. (1995) summarized observations of behavioral 
disturbance for odontocetes by noting that avoidance can occur and that 
harbor porpoises in particular tend to change behavior and move away 
from vessels. However, no clear evidence that habitat use patterns are 
altered because of vessel traffic exists, especially over short 
durations as will occur here. For other odontocetes, observed reactions 
have been related to behavioral context (e.g., resting animals may show 
avoidance while foraging animals ignore vessels). While it is possible 
that the increased presence of spectator vessels associated with race 
events could result in behavioral changes in harbor porpoises or other 
marine mammals in the Central Bay, it is not possible to predict what 
responses might be likely. The animals could simply avoid the area 
where spectator vessels gather, remaining instead in other areas of 
high sighting frequency to the west of the Golden Gate or to the north 
of the primary race area near Cavallo Point, or, if attempting to 
transit through the area where spectator vessels are present, could 
potentially react to those vessels in ways that might be construed as 
harassment. It is unclear whether the presence of spectator vessels 
would cause harbor porpoises to avoid areas of importance for foraging 
(and no information has been presented indicating that the race course 
contains such areas) or otherwise alter behavior such that fitness 
consequences might ensue. However, given that race events will occur 
over relatively short periods of time--the Event Authority estimates 
that there would be approximately 4 race days each in August and 
October 2012, and approximately 44 race days between July and September 
2013--it seems unlikely that these potential behavioral changes may 
accrue to affect an individual's fitness, much less the viability of 
the resurgent San Francisco Bay population. Nevertheless, any potential 
incidences of behavioral

[[Page 47609]]

harassment resulting from race events would be difficult to quantify.
    Because we do not think that take incidental to race events is 
likely to occur, and the applicants have not requested (and we have not 
authorized) such take, we have not prescribed additional means for 
effecting the least practicable impact (i.e., mitigation measures) or 
requirements pertaining to monitoring and reporting. However, while the 
preceding paragraphs describe our reasoning in determining that take 
authorization is not warranted, we appreciate the commenters' concerns 
and agree that it would be beneficial to ensure that event organizers 
are aware of marine mammal activity in the vicinity of the course and 
are able to take appropriate action to further ensure that marine 
mammals are not harmed. In order to address the commenters' concerns, 
we have encouraged the applicants to develop a monitoring plan specific 
to race events and to solicit the expertise of GGCR staff in 
implementing the plan. Any such plan would be voluntary and in addition 
to the Water and Air Traffic Plan and any restrictions placed on 
vessels associated with race events by the permitting authority (USCG). 
The applicants have presented a draft plan, as follows, to be finalized 
prior to race events. Portions of this plan involving GGCR staff 
involvement are subject to final concurrence by GGCR.
    America's Cup Race Management will conduct visual monitoring for 
marine mammals during all race events. During events with less than 500 
spectator boats (i.e., greater than 50 percent of estimated peak 
attendance), monitoring will be conducted by AC34 course marshals in 
addition to regular duties. A subset of marshals will have been through 
training prior to race events, and each marshal vessel will have at 
least one trained marshal aboard. During 2013 race events with greater 
than 500 spectator boats, monitoring will be conducted by course 
marshals in concert with professional observers who will have no other 
duties. AC Race Management will coordinate with GGCR staff to supervise 
monitoring during those events with greater than 500 spectator boats. 
The monitoring effort will have three basic components:
    (1) Monitoring for large whales: Any occurrence of large whales 
will be communicated to advisory staff and amongst course marshals. 
Based upon the location and activity of the animal(s) a decision will 
be made regarding delay or postponement of the race event as 
appropriate.
    (2) Monitoring for small cetaceans: Any occurrence of harbor 
porpoises or bottlenose dolphins will be communicated to advisory staff 
and amongst course marshals. ACEA is not currently considering 
postponements of race events in response to the presence of small 
cetaceans, but will communicate observations of cetacean activity 
within and around the race area to all race participants and spectators 
via a designated VHF radio channel. Based upon the location and 
activity of the animal(s) a decision will be made regarding advisories 
to mariners as appropriate.
    (3) Other monitoring: Any observations of interest (e.g., unusual 
behaviors) for any marine mammals (including pinnipeds) will be 
recorded and communicated to GGCR and included in any final reporting.
    Coordination will include the following:
     GGCR has already and will continue to provide training for 
AC34 course marshals. Course marshal training includes education 
regarding marine mammal identification and patterns to look for in 
their movements and behavior around the bay.
     GGCR will provide one senior staff person to attend weekly 
briefings during 2013 racing events and provide pertinent information 
to course marshals for that week. Information may include areas of 
specific concern related to transit and feeding activities of cetaceans 
within the proposed race area.
     A dedicated observer will be positioned on the Golden Gate 
Bridge during 2013 race events with greater than 500 spectator boats 
with binoculars during each race (30 minutes before and after racing) 
to record and report any sighting of marine mammal activity.
     During 2013 race events with greater than 500 spectator 
boats at least 10 percent of GGCR-trained marshals will be on the water 
(i.e., a minimum of eight trained AC34 staff on as many marshal boats).
     Develop communication chain of command during a race:
    [cir] Course marshals will report any dense activity within the 
2012 or 2013 race course to GGCR senior staff. GGCR staff will advise 
as to significance of activity.
    [cir] A communication chain will be developed. The course marshals 
will communicate observations of marine mammal activity to AC Race 
Management and the USCG.
     America's Cup Race Management will submit a report to GGCR 
and NMFS at the conclusion of the 2013 racing events documenting 
observations.
    Monitoring for marine mammals will include pre-race surveys (60 
minutes prior to first race) on days with greater than 500 spectator 
boats, monitoring during races, post-race surveys (60 minutes after 
last race) on days with greater than 500 spectator boats, and 
reporting. We are pleased to advise the applicants on this plan but 
final development and implementation will be the responsibility of the 
event organizers and any other entities they choose to involve.
    Comment 6: The Center recommends that transit routes to and from 
locations where pile driving is scheduled to occur be made available 
for public review and that these be planned to avoid the harbor seal 
haul-out at Yerba Buena Island (YBI).
    Response: It is not anticipated that construction vessels used 
along the San Francisco waterfront would transit past the harbor seal 
haul-out on YBI. Any transit routes for personnel and materials 
associated with pile driving would follow established routes that are 
frequented by commercial traffic and would not add appreciably to any 
effects on marine mammals. In 2013 a transit route for race events will 
be established in the USCG's Special Local Regulations (see USCG SLR 
map for 2013, available at https://www.nmfs.noaa.gov/pr/permits/incidental.htm). This transit zone will enable both commercial and 
recreational users continued access to waterfront berths and facilities 
during the races. To prevent crowding and congestion in this area, 
vessels are prohibited from loitering or anchoring in the transit zone. 
This marine transit zone is located over two miles from the YBI haul-
out area.
    Comment 7: OSE and the private citizen contend that we failed to 
adequately consider potential incidental take of gray whales.
    Response: The gray whale is typically observed migrating southward 
along the Central California coast between December and February and 
then again heading northward between February and July. Observations in 
San Francisco Bay are typically made from December through May, during 
the whales' coastal migration. Pile driving activities could overlap 
with the southbound migrating whales; however, southbound migrants 
typically travel farther offshore and are less likely to enter into the 
Bay.
    The commenters describe research conducted by OSE in the Bay from 
1999-2001, which was presented in 2001 at the 14th Biennial 
International Conference on Marine Mammals. We have been unable to find 
any published representation of this work, and no citation was 
provided. However, the commenters note the study showed that gray 
whales consistently utilize the

[[Page 47610]]

Bay--predominantly the Central Bay--and have been observed in the Bay 
in every month save August, while also noting that over 95 percent of 
all sightings during the study occurred during the northbound 
migration, from February through May.
    As described in the FR notice, and supported by the research 
referenced by the commenters, the vast majority of expected gray whale 
occurrence will not overlap with either pile driving activity or race 
events. However, there is some chance that gray whales could occur in 
the Central Bay during those activities. In order to prevent 
unauthorized take of gray whales, the applicants will shut down pile 
driving activity if gray whales are observed within defined harassment 
zones. Similarly, the plan being developed by the applicants for 
managing race events will establish monitoring protocols for marine 
mammals. If any large whales are observed prior to race events, those 
events will be delayed or postponed as appropriate to avoid the 
potential for interaction with vessels. We do not believe that 
authorization of incidental take for gray whales is warranted.
    Comment 8: A private citizen expressed concern that the effects of 
low-level helicopter operations on harbor porpoises were not addressed.
    Response: The commenter does not provide any information regarding 
what may be considered ``low-level'' operations or what specific 
circumstances might be expected to result in behavioral harassment of 
harbor porpoises. Helicopter overflights are known to cause startle 
reactions among certain hauled-out pinnipeds--though it is unclear to 
what degree a group that is habituated to disturbance may react--but 
there is no data illustrating what reactions may be expected from 
cetaceans, if any. We do not generally consider airborne sound to be a 
significant concern for cetaceans, although the visual stimulus 
provided by the helicopter may cause a behavioral response. Helicopter 
operations will only occur in conjunction with race events--which 
cetaceans may avoid anyway because of increased vessel activity--and 
helicopters will be restricted from skimming the water (i.e., no flight 
below 100 ft). While the potential for behavioral harassment of 
cetaceans from helicopter operations may not be entirely discountable, 
we do not believe the limited duration of planned helicopter operations 
to be of concern and any impacts are impossible to quantify. We do not 
believe that authorization of incidental take for harbor porpoises, 
specific to helicopter overflights, is warranted.

Description of Marine Mammals in the Area of the Specified Activity

    Marine mammals with confirmed occurrences in San Francisco Bay are 
the harbor seal, California sea lion, harbor porpoise, elephant seal, 
gray whale, Steller sea lion, bottlenose dolphin, minke whale, humpback 
whale (Megaptera noveangliae), and sea otter (Enhydra lutris). The FR 
notice (77 FR 32573; June 1, 2012) summarizes the population status and 
abundance of the first four species and provides detailed life history 
information. Gray whale presence was described in greater detail in the 
FR notice and in the response to comments provided previously. 
Bottlenose dolphins, Steller sea lions, and minke whales were not 
considered in the FR notice, and are addressed in somewhat more detail 
here. Humpback whales are considered extremely rare in San Francisco 
Bay and are highly unlikely to be present in the action area, while sea 
otters are under the jurisdiction of the U.S. Fish and Wildlife 
Service. Therefore, these two species have not been discussed in 
detail. Here, we provide supplemental information regarding certain 
species as submitted through public comment.

Minke Whale

    GGCR notes that individuals observed outside of the Golden Gate may 
occasionally forage within the Bay, and has recorded four minke whale 
sightings within the Bay since October 2009. We do not believe this 
information demonstrates that incidental take authorization for minke 
whales is warranted. As described elsewhere, the applicants will delay 
or postpone race events if large whales are observed and there is 
believed to be a risk of interaction. Pile driving activity would be 
shut down if any species for which take is not authorized were observed 
within defined harassment zones.

Bottlenose Dolphin

    Although the NMFS Stock Assessment Report considers the northern 
limit of the coastal bottlenose dolphin stock to be the outer coast of 
San Francisco, GGCR reports observations of bottlenose dolphins within 
the Central Bay. GGCR suggests that bottlenose dolphins may regularly 
use those waters for feeding, with small groups observed to enter the 
Bay for several hours at a time, approximately twice a week, during 
warmer water months from July through October. At least 25 individuals 
known from Monterey Bay have been identified in the Bay. Although 
bottlenose dolphins may regularly use portions of the Central Bay, we 
do not believe the information, as presented by GGCR and as found in 
the sources cited by GGCR, indicates that dolphins are likely to occur 
in nearshore waters of the San Francisco waterfront, i.e., within 
defined harassment zones for pile driving. Therefore, no incidental 
take authorization is warranted for bottlenose dolphin.

Harbor Porpoise

    GGCR described the evident resurgence of harbor porpoises in the 
Bay in greater detail than we provided in the FR notice. In summary, 
GGCR notes that harbor porpoises were first observed in the Bay in 
2007-08, following an absence of approximately 65 years, and that they 
have been observed more frequently and in larger groups since that 
time. In the western portion of the Central Bay (east of the Golden 
Gate Bridge) during 2011, GGCR conducted 87 surveys from sea, land, and 
bridge, and recorded 1,796 sightings. GGCR reports a photo 
identification catalog of 450 individuals resulting from these 
sightings, but does not provide any specific density or abundance 
information that would lead us to believe our estimate of potential 
incidences of harassment incidental to pile driving activity is an 
underestimate.

Steller Sea Lion

    As reported by GGCR, Steller sea lions are occasionally observed in 
the Bay. GGCR states that 16 sightings were made over a 2-year period 
beginning in March 2010. These observations were all made in the 
western Central Bay, from vantage points on land or the Golden Gate 
Bridge. Photo identification indicates that these sightings represent 
at least a few different animals. We do not believe this information 
demonstrates that incidental take authorization for Steller sea lions 
is warranted.

Harbor Seal

    GGCR notes that harbor seals are frequently observed foraging in 
the Golden Gate area, and believes that these animals likely travel 
from closer haul-outs west of the Golden Gate Bridge, rather than from 
the YBI haul-out. We do not believe that this information affects our 
take estimates or preliminary findings.
    Typically, there is very little marine mammal activity in the 
waters immediately adjacent to the San Francisco waterfront, where pile 
driving activities are planned. The general lack of marine mammal 
activity at the San

[[Page 47611]]

Francisco waterfront--other than a California sea lion haul-out at Pier 
39--is likely due to the high level of human activity, both urban and 
industrial in nature. The primary route for shipping traffic into and 
out of the Port of San Francisco and Port of Oakland is located between 
the San Francisco waterfront and Angel Island, approximately 5 km to 
the north. Amongst other uses, tugboat activities occur at Piers 15 and 
17, ferry traffic around Pier 1 and along the waterfront to Piers 39 
and 45, marine shipping and cargo transport to Piers 80 A-D and Piers 
92 and 94-96, and cruise vessel traffic at Piers 27 and 35 (see Figures 
1-2 of the application for relative locations). As noted previously, 
ambient underwater sound has been measured at 133 dB rms, significantly 
above NMFS threshold for behavioral harassment from non-pulsed sound 
(120 dB).
    Harbor seals and California sea lion are the most common marine 
mammals in the Bay, and may be found at multiple sites either resting 
or foraging. There are no documented haul-outs in the vicinity of 
planned construction or race events other than those discussed in 
succeeding sections. Various sources have observed pinnipeds resting on 
channel marker buoys throughout the Bay, on the shorelines of Alcatraz 
or Angel Island and along the San Francisco waterfront but these 
locations have not been defined as haul-out sites.

Potential Effects of the Specified Activity on Marine Mammals

    We have determined that pile driving, as outlined in the project 
description, has the potential to result in behavioral harassment of 
marine mammals that may be present in the project vicinity while 
construction activity is being conducted. Pile driving could 
potentially harass those marine mammals that may be in the project 
vicinity while pile driving is being conducted. Behavioral disturbance 
is also possible when helicopter overflights or fireworks displays 
occur. The FR notice (77 FR 32573; June 1, 2012) provides a detailed 
description of marine mammal hearing and of the potential effects of 
these activities on marine mammals.

Anticipated Effects on Habitat

    No permanent detrimental impacts to marine mammal habitat are 
expected to result from these activities. Pile driving may impact prey 
species and marine mammals by causing temporary avoidance or 
abandonment of the immediate area. Site conditions are expected to be 
substantively unchanged from existing conditions. In addition, local 
habitat as it exists is significantly degraded as a result of the 
history of urban and industrial activity. Overall, the activity is not 
expected to cause significant or long-term adverse impacts on marine 
mammal habitat or to the prey base for marine mammals.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(D) of the MMPA, we must, where applicable, set forth 
the permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable impact on such species or 
stock and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
such species or stock for taking for certain subsistence uses (where 
relevant).
    Estimated distances to various sound thresholds were described 
previously under `Sound Thresholds', and are used to establish zones of 
influence (ZOIs) (described in following sections) to be used as 
mitigation measures for pile driving activities. ZOIs are often used to 
effectively represent the mitigation zone that will be established 
around each pile to prevent Level A harassment of marine mammals. In 
addition to the specific measures described later, ACEA and the Port 
will employ the following general mitigation measures:
     All work will be performed according to the requirements 
and conditions of the regulatory permits issued by federal, state, and 
local governments.
     Briefings will be conducted between the project 
construction supervisors and crew and marine mammal observer(s) (MMO) 
as necessary prior to the start of all pile-driving activity, and when 
new personnel join the work, to explain responsibilities, communication 
procedures, marine mammal monitoring protocol, and operational 
procedures.
     Contractors for construction work will comply with all 
applicable equipment sound standards and ensure that all construction 
equipment has sound control devices no less effective than those 
provided on the original equipment (i.e., equipment may not have been 
modified in such a way that it is louder than it was initially).
     Only one impact pile driver may be operated 
simultaneously.
     For impact driving of timber piles, a cushion block or 
similar device will be used for sound attenuation at all times.

Monitoring and Shutdown

    Shutdown Zones--For all pile driving activities, a shutdown zone 
(defined as, at minimum, the area in which SPLs equal or exceed 180/190 
dB rms for cetaceans and pinnipeds, respectively) will be established 
when applicable. For the specified activity, this will be necessary 
only for impact pile driving. The purpose of a shutdown zone is to 
define an area within which shutdown of activity will occur upon 
sighting of a marine mammal (or in anticipation of an animal entering 
the defined area), thus preventing injury, serious injury, or death of 
marine mammals. During all impact pile driving, the Port will establish 
a conservative shutdown zone of 10 m radius around each pile to avoid 
exposure of marine mammals to sound levels that could potentially cause 
injury. The shutdown zone will be monitored during all impact pile 
driving.
    Disturbance Zones--For all pile driving activities, a disturbance 
zone will be established. Disturbance zones are typically defined as 
the area in which SPLs equal or exceed 160 or 120 dB rms (for impact 
and vibratory pile driving, respectively). Disturbance zones provide 
utility for monitoring conducted for mitigation purposes (i.e., 
shutdown zone monitoring) by establishing monitoring protocols for 
areas adjacent to the shutdown zones. Monitoring of disturbance zones 
enables MMOs to be aware of and communicate the presence of marine 
mammals in the project area but outside the shutdown zone and thus 
prepare for potential shutdowns of activity. However, the primary 
purpose of disturbance zone monitoring is for documenting incidents of 
Level B harassment; disturbance zone monitoring is discussed in greater 
detail later (see Monitoring and Reporting). Disturbance zones will be 
established with 50 m radius for impact pile driving and 1,000 m radius 
for vibratory pile driving; these zones will subsume the calculated 
disturbance zones for harassment from airborne sound.
    Monitoring Protocols--The shutdown and disturbance zones will be 
monitored throughout the time required to drive a pile. If a marine 
mammal is observed within the disturbance zone, a take will be recorded 
and behaviors documented. However, that pile segment will be completed 
without cessation, unless the animal approaches or enters the shutdown 
zone, at which point all pile driving activities will be halted. Impact 
driving will only occur during daylight hours. If the shutdown zone is 
obscured by fog or poor lighting conditions, pile driving will not be

[[Page 47612]]

initiated until the entire shutdown zone is visible. Work that has been 
initiated appropriately in conditions of good visibility may continue 
during poor visibility.
    The shutdown zone will be monitored for the presence of marine 
mammals before, during, and after any pile driving activity. The 
shutdown zone will be monitored for 30 minutes prior to initiating the 
start of pile driving. If marine mammals are present within the 
shutdown zone prior to pile driving, the start of pile driving will be 
delayed until the animals leave the shutdown zone of their own 
volition, or until 15 minutes elapse without resighting the animal(s). 
The shutdown zone will also be monitored throughout the time required 
to drive a pile. If a marine mammal is observed approaching or entering 
the shutdown zone, pile driving operations will be discontinued until 
the animal has moved outside of the shutdown zone. Pile driving will 
resume only after the animal is determined to have moved outside the 
shutdown zone by a qualified observer or after 15 minutes have elapsed 
since the last sighting of the animal within the shutdown zone.
    Monitoring will be conducted using binoculars and the naked eye. 
When possible, digital video or still cameras will also be used to 
document the behavior and response of marine mammals to construction 
activities or other disturbances. Each observer will have a radio or 
cell phone for contact with other monitors or work crews. Observers 
will implement shutdown or delay procedures when applicable by calling 
for the shutdown to the hammer operator. A GPS unit or electric range 
finder will be used for determining the observation location and 
distance to marine mammals, boats, and construction equipment.
    Monitoring will be conducted by qualified observers. In order to be 
considered qualified, observers must meet the following criteria:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target.
     Advanced education in biological science, wildlife 
management, mammalogy, or related fields (bachelor's degree or higher 
is required).
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors.
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations.
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior.
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

Soft-start

    The objective of a soft-start is to alert any animals close to the 
activity and allow them time to move away, which should expose fewer 
animals to loud sounds, including both underwater and above-water 
sound. This procedure also ensures that any marine mammals missed 
during shutdown zone monitoring will move away from the activity and 
not be injured. The following soft-start procedures will be used for 
in-water pile installation:
     A soft-start technique will be used at the beginning of 
each day's in-water pile driving activities or if pile driving has 
ceased for more than 30 minutes.
     If a vibratory driver is used, contractors will be 
required to initiate sound from vibratory hammers for 15 seconds at 
reduced energy followed by a 30-second waiting period. The procedure 
will be repeated two additional times before full energy may be 
achieved.
     For impact driving, contractors will be required to 
conduct soft start if the technique is feasible given the hammer type. 
Soft start will be conducted to provide an initial set of strikes from 
the impact hammer at reduced energy, followed by a 30-second waiting 
period, then two subsequent sets. The reduced energy of an individual 
hammer cannot be quantified because they vary by individual drivers. 
Also, the number of strikes will vary at reduced energy because raising 
the hammer at less than full power and then releasing it results in the 
hammer `bouncing' as it strikes the pile, resulting in multiple 
`strikes'.

Helicopter Operations and Fireworks Displays

    Approved flight patterns for AC34 contracted and race-affiliated 
helicopters will be detailed in the Water and Air Traffic Plan, to be 
created in conjunction with the USCG prior to the conduct of any race 
events or helicopter operations. The project sponsors are responsible 
for coordinating with the FAA to ensure compliance with flight 
regulations and to enforce the flight restrictions identified in the 
Plan to protect marine mammals. Helicopters will descend/ascend 
vertically for landing and take-off at the helipad on Treasure Island. 
Helicopters will not skim the surface of water (i.e., flight no lower 
than 100 ft) during the race events nor during landing and takeoff 
operations. In addition, race-related helicopters will maintain a 
buffer of at least 1,000 ft (vertically and horizontally) around 
Alcatraz Island and Crissy Beach Wildlife Protection Area, will avoid 
direct overflights of the Pier 39 haul-out, and will maintain the 
restriction on flight below 100 ft in the vicinity of Pier 39 where sea 
lions are known to haul out.
    Any fireworks displays will be limited in terms of frequency and 
location as necessary to protect marine mammals. There will be no more 
than four events, two up to 30 minutes and two up to 45 minutes in 
duration in 2013. The fireworks barge will be in a similar location to 
and of the same noise intensity as the annual 4th of July fireworks 
display conducted by the City of San Francisco. These fireworks 
displays will be regulated through the USCG Marine Event Permit 
process.
    NMFS has carefully evaluated the applicant's mitigation measures as 
proposed and considered their effectiveness in past implementation to 
determine whether they are likely to effect the least practicable 
adverse impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures includes 
consideration of the following factors in relation to one another: (1) 
The manner in which, and the degree to which, the successful 
implementation of the measure is expected to minimize adverse impacts 
to marine mammals, (2) the proven or likely efficacy of the specific 
measure to minimize adverse impacts as planned; (3) the practicability 
of the measure for applicant implementation, including consideration of 
personnel safety, and practicality of implementation.
    Injury, serious injury, or mortality to marine mammals is extremely 
unlikely to result from the specified activities

[[Page 47613]]

even in the absence of any mitigation measures. However, in cooperation 
with the applicants, we require the described mitigation measures to 
reduce even further the probability of such events occurring and to 
reduce the number of potential behavioral harassments to the level of 
least practicable impact. We have determined that these mitigation 
measures provide the means of effecting the least practicable adverse 
impacts on marine mammal species or stocks and their habitat.

Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that we must set forth ``requirements pertaining to the 
monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR part 216 indicate that requests for IHAs must 
include the suggested means of accomplishing the necessary monitoring 
and reporting that will result in increased knowledge of the species 
and of the level of taking or impacts on populations of marine mammals 
that are expected to be present.
    The monitoring plan, and all methods identified herein, have been 
developed through coordination between NMFS and the applicants, and are 
based on the parties' professional judgment supported by their 
collective knowledge of marine mammal behavior, site conditions, and 
project activities. Any modifications to this protocol will be 
coordinated with us. A summary of the plan, as well as the described 
reporting requirements, is contained here.
    The intent of the monitoring plan is to:
     Comply with the requirements of the MMPA;
     Adequately characterize site-specific ambient sound levels 
and verify assumptions made regarding sound source levels for impact 
and vibratory pile driving.
     Avoid injury to marine mammals through visual monitoring 
of identified shutdown zones and shutdown of activities when animals 
enter or approach those zones; and
     To the extent possible, record the number, species, and 
behavior of marine mammals in disturbance zones for specified 
activities.
    As described previously, monitoring for marine mammals during pile 
driving will be conducted in specific zones established to avoid or 
minimize effects of elevated levels of sound created by the specified 
activities. Shutdown and disturbance zones will correspond to the 
distances described previously in this document.

Acoustic Measurements

    Acoustic measurements will be made for ambient sound in the absence 
of construction activity (Goal 1), as necessary to adequately measure 
source levels associated with vibratory and impact pile driving (Goal 
2), and to characterize site-specific sound propagation (Goal 3). 
Monitoring in the absence of construction activities will be conducted 
to determine ambient underwater noise levels in representative 
locations during hours that pile driving will occur (6 a.m.- 6 p.m.) 
for three consecutive days. Beginning with the first days of activity 
and continuing for as long as is necessary to measure representative 
pile driving events, the applicants will conduct acoustic monitoring in 
order to accomplish Goals 2 and 3. All measurements of impact pile 
driving will be made with the sound attenuation measures discussed 
previously in place. Maximum sound pressure levels, as well as 
approximate distances to relevant thresholds, will be measured and 
documented. Acoustic monitoring will be conducted in accordance with 
the Monitoring Plan developed by the applicants and approved by NMFS. 
Please see that plan, available at https://www.nmfs.noaa.gov/pr/permits/incidental.htm, for full details of the required acoustic monitoring.

Visual Monitoring

    The established shutdown and disturbance zones will be monitored by 
qualified marine mammal observers for mitigation purposes, as well as 
to document marine mammal behavior and incidents of Level B harassment. 
Monitoring protocols were described in greater detail under 
``Mitigation''. The monitoring plan will be implemented, requiring 
collection of sighting data for each marine mammal observed during the 
specified activities for which monitoring is required, including all 
impact pile driving and a subset of vibratory pile driving. Disturbance 
zones, briefly described previously under ``Mitigation'', are discussed 
in greater depth here.
    Disturbance Zone Monitoring--Disturbance zones are defined as 50 m 
radius for impact pile driving and 1,000 m radius for vibratory pile 
driving. Monitoring of disturbance zones will be implemented as 
described previously in ``Mitigation''. All impact pile driving will be 
monitored according to described protocols. For vibratory driving, the 
first two days of representative pile driving activity at each specific 
location, when the contractors are mobilizing and starting use of the 
vibratory hammer, will be monitored in order to validate estimates of 
incidental take and to record behavioral reactions, if any, of marine 
mammals present in the vicinity. Additional monitoring, to be decided 
when the schedule of work is provided by the contractor, will be 
conducted as necessary in each specific location such that a minimum of 
one-third of the total pile driving days at each location are 
monitored. These additional days may be scheduled at the discretion of 
the applicant, but shall include any days of heightened activity (if 
they occur) or will be representative of typical levels of activity. It 
is not possible for us to define a `typical' day of pile driving 
activity. Should it become apparent that greater than anticipated 
numbers of animals are being harassed, or that animals are displaying 
behavioral reactions of greater than anticipated intensity, we may 
require the applicants to expand the monitoring program.
    The monitoring biologists will document all marine mammals observed 
in the monitoring area. Data collection will include a count of all 
marine mammals observed by species, sex, age class, their location 
within or in relation to the zone, and their reaction (if any) to 
construction activities, including direction of movement, and type of 
construction that is occurring, time that pile driving begins and ends, 
any acoustic or visual disturbance, and time of the observation. 
Environmental conditions such as wind speed, wind direction, 
visibility, and temperature will also be recorded. No monitoring will 
be conducted during inclement weather that creates potentially 
hazardous conditions, as determined by the biologist, nor will 
monitoring be conducted when visibility is significantly limited, such 
as during heavy rain or fog. During these times of inclement weather, 
impact pile driving will be halted; these activities will not commence 
until monitoring has started for the day.
    Helicopter Operations and Fireworks Displays--In order to estimate 
levels of take incidental to these activities and to better understand 
pinniped sensitivity to disturbance from overflights and fireworks 
displays, the applicants will conduct monitoring as described here. For 
helicopter operations, at least one monitor will conduct observations 
at the California sea lion haul-out at Pier 39 (the only established 
haul-out within the project area) during a subset of helicopter 
operations days. Monitoring will be conducted for the first five days 
on which helicopter operations occur in close proximity to Pier 39 in 
order to confirm assumptions regarding the

[[Page 47614]]

degree to which pinnipeds may be disturbed by such operations. If 
pinnipeds are being disturbed by helicopter operations to a degree 
similar to that assumed here (see Estimated Take by Incidental 
Harassment), the applicants shall monitor on additional days, 
determined by the applicants and contractors, totaling at least one-
third of total helicopter operations days. If pinnipeds at Pier 39 are 
not being disturbed, or are being disturbed to a much lesser degree 
than what is assumed here, the applicants may cease monitoring after 
the initial five days.
    For fireworks displays, the applicants will conduct a pre- and 
post-event census of marine mammals within the acute fireworks impact 
area (the area where sound, light, and debris effects may have direct 
impacts on marine organisms and habitats) and will also monitor the 
California sea lion haul-out at Pier 39. The applicants have 
preliminarily determined that the acute impact area would be of 500 m 
radius from the fireworks launch area. The pre-event census, conducted 
in order to estimate the number of marine mammals that may be harassed 
by displays, will occur as close to the actual display time as 
possible, will be conducted for no less than 30 minutes, and will 
describe all observed marine mammals. However, only hauled-out 
pinnipeds observed in the area during the pre-event census, if any, 
will be assumed to be incidentally harassed by the display. Post-event 
monitoring in the acute fireworks impact area, to occur no later than 
the morning following the display and for no less than 30 minutes, will 
be conducted to record injured or dead marine mammals, if any.
    During monitoring at the Pier 39 haul-out--during helicopter 
overflights or fireworks displays--monitors will note pinniped 
disturbance according to a three-point scale indicating severity of 
behavioral reaction, as shown in Table 3. The time, source, and 
duration of the disturbance, as well as an estimated distance between 
the source and haul-out, will be recorded. Only responses falling into 
Levels 2 and 3 will be considered as harassment under the MMPA, under 
the terms of this IHA.

                Table 3--Pinniped Response to Disturbance
------------------------------------------------------------------------
             Level               Type of response        Definition
------------------------------------------------------------------------
1.............................  Alert............  Head orientation in
                                                    response to
                                                    disturbance. This
                                                    may include turning
                                                    head towards the
                                                    disturbance, craning
                                                    head and neck while
                                                    holding the body
                                                    rigid in a u-shaped
                                                    position, or
                                                    changing from a
                                                    lying to a sitting
                                                    position. May
                                                    include slight
                                                    movement of less
                                                    than 1 m.
2.............................  Movement.........  Movements in response
                                                    to or away from
                                                    disturbance,
                                                    typically over short
                                                    distances (1-3 m).
3.............................  Flight...........  All flushes to the
                                                    water as well as
                                                    lengthier retreats
                                                    (> 3 m).
------------------------------------------------------------------------

    All monitoring personnel must have appropriate qualifications as 
identified previously, with qualifications to be certified by ACEA and 
the Port (see Mitigation). These qualifications include education and 
experience identifying marine mammals that may occur in the Bay and the 
ability to understand and document marine mammal behavior. All 
monitoring personnel will meet at least once for a training session 
sponsored by the applicants. Topics will include implementation of the 
protocol, identification of marine mammals, and reporting requirements.
    All monitoring personnel will be provided a copy of the IHA. 
Monitoring personnel must read and understand the contents of the IHA 
as they relate to coordination, communication, and identification and 
reporting incidental harassment of marine mammals.

Reporting

    The applicants are required to submit a report on all activities 
and marine mammal monitoring results to the Office of Protected 
Resources, NMFS, and the Southwest Regional Administrator, NMFS, 90 
days prior to the desired date of validity for any subsequent IHA, or 
within 90 days of the expiration of the IHA, whichever comes first. A 
final report will be prepared and submitted within 30 days following 
receipt of any comments on the draft report. The report will provide 
descriptions of any observed behavioral responses to the specified 
activities by marine mammals, including marine mammal observations pre-
, during-, and post-activity for pile driving monitoring. At a minimum, 
the report will include:
     Specifics of the activity: date, time, and location; 
observation conditions correlated to observer effort; pile driving 
activity specifications (e.g., size and type of piles, hammer and sound 
attenuation device specifications);
     Discussion of incidental take, including (1) Records of 
all marine mammal observations as well as observed incidental take 
events; (2) for vibratory pile driving, the total estimated amount of 
incidental take based on extrapolation of observed take; and (3) 
estimates of take for helicopter operations and fireworks displays.
     Description of observed marine mammal behavior, including 
correlations of observed behavior to activity, including distance to 
pile being driven or other source of disturbance; and discussion of 
sensitivity of hauled-out pinnipeds to helicopter overflights and/or 
fireworks displays as described previously.
     Discussion of mitigation, including description of any 
actions performed to minimize impacts to marine mammals; and times when 
pile driving is stopped or delayed due to presence of marine mammals 
within shutdown zones and time when pile driving resumes.
     Any recommendations for improving efficacy and efficiency 
of monitoring and/or mitigation.
     Results of acoustic monitoring, including the following: 
(1) A description of monitoring equipment and protocols; (2) distance 
from hydrophones to source; (3) depth of hydrophones; (4) event-
specific measurements as well as overall mean source levels (peak and 
rms SPLs) and distances to thresholds; (5) ambient sound measurements.

Estimated Take by Incidental Harassment

    ACEA and the Port requested authorization to take harbor seals, 
California sea lions, northern elephant seals, and harbor porpoises, by 
Level B harassment only, incidental to the specified activities. Pile 
driving activities are expected to incidentally harass marine mammals 
through the introduction of underwater and/or airborne sound to the 
environment, while helicopter operations and fireworks displays have 
the potential to harass pinnipeds through some combination of acoustic 
and visual stimuli. Based on the nature of the activities and the 
described mitigation measures, no take by injury, serious

[[Page 47615]]

injury, or mortality is anticipated or authorized. Estimates of the 
number of animals that may be harassed by the specified activities is 
based upon the number of animals believed to potentially be present 
within relevant areas at the time a given activity is conducted. Table 
4 details the total number of estimated takes. In summary, we authorize 
the incidental take, by Level B harassment only, of 14,063 California 
sea lions, 686 harbor seals, 63 harbor porpoises, and two elephant 
seals. These take events will likely represent multiple takes of 
individuals, rather than each event being of a new individual.

                                       Table 4--Incidental Take Estimates
----------------------------------------------------------------------------------------------------------------
                                                                               Pile      Helicopter   Fireworks
                 Species                                                     driving     operations    displays
----------------------------------------------------------------------------------------------------------------
California sea lion.....................  Individuals/day................            1          250          250
                                          Total number days..............           63           52            4
                                                                          --------------------------------------
                                          Total take estimate............           63       13,000        1,000
----------------------------------------------------------------------------------------------------------------
Harbor seal.............................  Individuals/day................            2           10           10
                                          Total number days..............           63           52            4
                                                                          --------------------------------------
                                          Total take estimate............          126          520           40
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.........................  Individuals/day................            1          n/a          n/a
                                          Total number days..............           63          n/a          n/a
                                                                          --------------------------------------
                                          Total take estimate............           63          n/a          n/a
----------------------------------------------------------------------------------------------------------------
Elephant seal...........................                                   Total request of two individuals for
                                                                           all activities
----------------------------------------------------------------------------------------------------------------

Pile Driving

    California sea lions and harbor seals may use the waters adjacent 
to the San Francisco waterfront for foraging or for daily movement 
between foraging and haul-out locations, and observations have been 
made at various locations along the San Francisco waterfront. The 
California sea lion haul-out at Pier 39 is approximately 800-1,000 m 
from the nearest vibratory driving location--although sound will be 
attenuated by at least three major piers between, as well as the 
curvature of the waterfront shoreline--and is approximately 1.6 km from 
Pier 19, where impact pile driving will occur. As previously described 
in the FR notice, the nearest known haul-out site for harbor seals is 
at YBI. Vibratory driving locations range approximately 2.4-6.8 km from 
the haul-out, while Pier 19, where impact driving of timber piles will 
occur, is more than 3.2 km distant from the haul-out. Planned fireworks 
displays will be approximately 1.6-3.2 km from Pier 39 and 3.2-4.8 km 
from YBI, depending on the final selected location. No activities will 
be expected to affect animals at the YBI haul-out. While it is possible 
that harbor porpoises could occur in the vicinity of the waterfront--
and information provided through public comment has been helpful in 
better understanding recent trends in porpoise occurrence in the Bay--
we still consider their presence in the immediate vicinity of the 
waterfront to be uncommon. Specifically, information provided by GGCR 
shows that the greatest frequency of sightings has been in the vicinity 
of the Golden Gate (within a few kilometers to the east) and in the 
vicinity of Angel Island. It is possible that harbor porpoises will be 
present in the immediate vicinity of the waterfront, but we do not 
expect such occurrence and have no information indicating that our 
estimate of potential incidental take is not conservative.
    The most comprehensive monitoring data available was collected by 
Caltrans for the San Francisco-Oakland Bay Bridge (SFOBB) project; 
these data represent the best available information for approximating 
local abundance of these species. While public comment did provide some 
new information, particularly for harbor porpoise, no new density or 
abundance estimates for the waterfront area, where pile driving will 
occur, were offered. The SFOBB monitoring site was located in the 
vicinity of the YBI haul-out, whereas most of the sites where 
construction, helicopter, or fireworks activities will occur are in 
areas of high commercial shipping and boat activity. Therefore, SFOBB 
monitoring data may be expected to provide conservative estimates of 
marine mammal abundance. More recent monitoring was conducted during 
construction associated with the Exploratorium, located at Piers 15 and 
17 at the San Francisco waterfront. During vibratory pile driving only, 
monitoring was conducted on 25 days from January 10-July 29, 2011, to a 
distance of approximately 2,000 m from the pile driving location. On 
those 25 days, the only species observed were the California sea lion 
and the harbor seal. Harbor seals were observed on 9 of 25 days, while 
California sea lions were observed on 8 of 25 days. Sightings data 
provide rates of 0.52 and 0.68 animals observed per monitoring day for 
harbor seals and California sea lions, respectively.
    During monitoring of the SFOBB project over 22 days, abundance 
estimates of 1.5 seals per day and 0.09 sea lions per day were 
recorded. Due to the relative tranquility of YBI and the presence of a 
harbor seal haul-out, the estimate for harbor seals is likely higher 
than would be found for the San Francisco waterfront. However, as 
confirmed by information from the Exploratorium monitoring effort, the 
estimate for California sea lions is likely lower, given that greater 
numbers of that species may be encountered transiting to and from the 
Pier 39 haul-out.
    The applicants proposed conservative estimates of two harbor seals 
per day--a slight increase from the SFOBB data--and one California sea 
lion per day, a slight increase from the Exploratorium observations. 
The Caltrans SFOBB monitoring reported one observed harbor porpoise in 
the vicinity of YBI. We believe that, despite observations of larger 
groups of porpoise reported from the western Central Bay, an estimate 
of one harbor porpoise per day of activity in the vicinity of the 
waterfront is a very conservative estimate. Based on

[[Page 47616]]

estimated pile driving production rates, a maximum of 63 days is 
anticipated for pile driving under this IHA.

Helicopter Operations and Fireworks Displays

    Incidental take resulting from helicopter overflights and/or 
fireworks displays will likely be limited to California sea lions and 
harbor seals occurring within the immediate vicinity of a helicopter 
flight patterns or fireworks displays. Specifically, California sea 
lions present at Pier 39 will likely be subject to incidental 
harassment, although there is the potential for harbor seals to be 
hauled-out within range of stimuli that may cause harassment.
    Estimates of the number of California sea lions that could be 
harassed by helicopter operations and/or fireworks displays are based 
on information from the Pier 39 haul-out. California sea lion usage of 
Pier 39 is a relatively recent phenomenon. The first individuals were 
observed during the winter of 1989-90, however, by the next year the 
numbers reached an average 500 per day (Goals Project, 2000), with a 
maximum recorded observation of approximately 800 individuals. Since 
that the early 1990s, peak numbers during winter have declined and now 
average about 200-300 animals per day. In order to estimate incidental 
take, a conservative estimate of 500 animals present per day was 
considered. Observations of pinniped response to the presence of humans 
on foot in the Channel Islands indicated that the proportion of 
California sea lions hauled out at the time of disturbance that are 
behaviorally harassed is approximately 50 percent (77 FR 12246), 
although this is likely conservative, given that the animals at Pier 39 
are more habituated to stimuli than those in more remote locations.
    Estimates of the number of harbor seal that may be present during 
helicopter operations and/or fireworks displays are based on local 
observations reported by the applicants--no other information upon 
which to base the estimate is known to us or to the applicants. 
Anecdotal information from monitoring of fleet week, National Park 
Service staff observations, and local sailors reported observations of 
anywhere from 10-15 seals per day while out on the water. Therefore, in 
an extremely conservative estimation, we assume that ten animals per 
day may be hauled-out in locations along the waterfront and that all 
animals will be harassed. The previously mentioned Channel Islands 
observations indicate that approximately 75 percent of animals hauled-
out at the time of disturbance are harassed by a given stimuli, but it 
is likely that all animals will flush in this context.

Elephant Seals

    As stated previously, elephant seals breed between December and 
March and have been rarely sighted in the Bay. However, regular, if 
infrequent, sightings of juveniles have been made in recent years at 
Crissy Field beach. Therefore, it is possible that an elephant seal 
could occur within areas that are ensonified above levels that NMFS 
considers to result in Level B harassment. Although possible, it is 
unlikely that elephant seals will be harassed; however, in order to be 
precautionary the applicants have requested authorization for 
incidental take of two elephant seals over the life of the IHA and we 
have authorized that take. There is no information upon which to base a 
quantitative estimate of potential take; therefore, take is estimated 
on the basis of the few individuals observed at Crissy Field beach.
    It is not anticipated that elephant seals will be harassed by 
helicopter operations and/or fireworks displays because (1) Elephant 
seals have been observed, during the aforementioned Channel Island 
monitoring, to display behavioral reactions to potentially harassing 
stimuli less than one percent of the time; (2) Crissy Field beach is 
over 4 km distant from the nearest potential fireworks display 
location; and (3) helicopters will avoid Crissy Field beach by 1,000 ft 
in response to concerns about sensitive avian species.

Negligible Impact and Small Numbers Analysis and Determination

    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.'' In making a negligible impact determination, 
NMFS considers a variety of factors, including but not limited to: (1) 
The number of anticipated mortalities (if any); (2) the number and 
nature of anticipated injuries (if any); (3) the number, nature, 
intensity, and duration of Level B harassment; and (4) the context in 
which the take occurs.
    Although the specified activities may harass marine mammals present 
in the action area, impacts are largely occurring to a localized group 
of animals (i.e., the California sea lions present in the vicinity of 
Pier 39 and harbor seals from YBI that may be present at the San 
Francisco waterfront). Further, any incidents of harassment will be 
occurring to animals that are habituated to a high level of surrounding 
human activity, including both urban and industrial activity, and to an 
already loud environment. Monitoring associated with the Exploratorium 
project resulted in no observations of discernible reactions to 
vibratory pile driving or any other work activity, although animals 
were observed as close as 12 m from pile driving. No avoidance behavior 
was observed, including even basic reactions such as head alerts. Both 
sea lions and harbor seals appeared to use the waterfront for 
travelling along a rough north-south course. Travel was typically slow, 
although some fast traveling (indicating by porpoising) by sea lions 
was noted. A few individuals of both species were also observed resting 
at the surface. Frequent commercial and recreational vessel traffic was 
consistently observed on all monitoring days, and observed animals were 
reported as appearing habituated to such traffic.
    The authorized number of incidences of harassment for each species 
can be considered small relative to the population size. There are an 
estimated 30,196 harbor seals in the California stock, 296,750 
California sea lions, 9,189 harbor porpoises in the San Francisco-
Russian River stock, and 124,000 northern elephant seals in the 
California breeding population. Based on the best available 
information, we have authorized the take, by Level B harassment only, 
of 14,063 California sea lions, 686 harbor seals, 63 harbor porpoises, 
and two northern elephant seals, representing 4.7, 2.3, 0.7, and 0.002 
percent of the populations, respectively. However, this represents an 
overestimate of the number of individuals harassed over the duration of 
the IHA, because these totals represent much smaller numbers of 
individuals (i.e., resident individuals that may occur in the vicinity 
over the course of multiple days) that may be harassed multiple times. 
No stocks known from the action area are listed as threatened or 
endangered under the ESA or determined to be depleted or considered 
strategic under the MMPA. Recent data suggests that harbor seal 
populations have reached carrying capacity, populations of California 
sea lions and northern elephant seals in California are also considered 
healthy, and recent information suggests that the harbor porpoise may 
be expanding its range on the west coast. No injury, serious injury, or 
mortality is anticipated, nor is the specified action

[[Page 47617]]

likely to result in long-term impacts such as permanent abandonment of 
the Pier 39 haul-out or a permanent reduction in presence in San 
Francisco Bay. We do not believe that the waterfront activities 
described here will impact the resurgent presence of harbor porpoise in 
San Francisco Bay. Apart from the race events occurring in the open 
waters of the Central Bay, the waterfront activities do not represent a 
significant departure from typical levels of urban and industrial 
activity in San Francisco. No impacts are expected at the population or 
stock level.
    Based on the foregoing analysis, behavioral disturbance to marine 
mammals in the Bay will be of low intensity and limited duration. To 
ensure minimal disturbance, the applicants will implement the 
mitigation measures described previously, which we have determined will 
serve as the means for effecting the least practicable adverse impact 
on the relevant marine mammal stocks or populations and their habitat. 
We find that the specified activities will result in the incidental 
take of small numbers of marine mammals, and that the requested number 
of takes will have no more than a negligible impact on the affected 
species and stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    There are no ESA-listed marine mammals expected to occur in the 
action area; therefore, no consultation under the ESA is required.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, we have prepared an Environmental 
Assessment (EA) to consider the direct, indirect and cumulative effects 
to the human environment resulting from issuance of an IHA to ACEA and 
the Port for the specified activities. We subsequently reached a 
Finding of No Significant Impact, which was signed on July 27, 2012. 
Those documents are available for review at https://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Authorization

    As a result of these determinations, we have issued an IHA to the 
Port and ACEA to conduct the described activities in San Francisco Bay 
for a period of one year, provided the previously described mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: July 31, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-19554 Filed 8-8-12; 8:45 am]
BILLING CODE 3510-22-P