Taking of Marine Mammals Incidental to Specified Activities; Front Street Transload Facility Construction, 65704-65710 [2015-27262]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 80, Number 207 (Tuesday, October 27, 2015)]
[Notices]
[Pages 65704-65710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27262]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE097


Taking of Marine Mammals Incidental to Specified Activities; 
Front Street Transload Facility Construction

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

ACTION: Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the Bergerson 
Construction, Inc. (Bergerson) to take, by Level B harassment, small 
numbers of two species of marine mammals incidental to the Front Street 
Transload Facility construction project in Newport, Oregon, between 
November 1, 2015, and October 31, 2016.

DATES: Effective November 1, 2015, through October 31, 2016.

ADDRESSES: Requests for information on the incidental take 
authorization should be addressed to Jolie Harrison, Chief,

[[Page 65705]]

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 containing a list of the 
references used in this document, NMFS' Environmental Assessment (EA), 
Finding of No Significant Impact (FONSI), and the IHA may be obtained 
by writing to the address specified above or visiting the Internet at: 
https://www.nmfs.noaa.gov/pr/permits/incidental/. Documents cited in 
this notice may be viewed, by appointment, during regular business 
hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Shane Guan, 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 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds 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. 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for a one-year authorization to 
incidentally take small numbers of marine mammals by harassment, 
provided that there is no potential for serious injury or mortality to 
result from the activity. Section 101(a)(5)(D) establishes a 45-day 
time limit for NMFS review of an application followed by a 30-day 
public notice and comment period on any proposed authorizations for the 
incidental harassment of marine mammals. Within 45 days of the close of 
the comment period, NMFS must either issue or deny the authorization.

Summary of Request

    On April 22, 2015, Bergerson submitted a request to NMFS requesting 
an IHA for the possible harassment of small numbers of Pacific harbor 
seal (Phoca vitulina richardii) and California sea lion (Zalophus 
californianus) incidental to construction associated with the Front 
Street Marine Transload Facility in the city of Newport, Oregon, for a 
period of one year starting November 2015. NMFS determined the IHA 
application was complete on July 29, 2015.

Description of the Specified Activity

    A detailed description of the Front Street Transload Facility 
construction project is provided in the Federal Register notice for the 
proposed IHA (80 FR 48500; August 13, 2015). Since that time, no 
changes have been made to the proposed construction activities. 
Therefore, a detailed description is not provided here. Please refer to 
that Federal Register notice for the description of the specific 
activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Bergerson was 
published in the Federal Register on August 13, 2015. That notice 
described, in detail, Bergerson's activity, the marine mammal species 
that may be affected by the activity, and the anticipated effects on 
marine mammals. During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission). The Commission 
recommends NMFS issue the IHA, subject to inclusion of the proposed 
mitigation, monitoring, and reporting measures.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to 
occur in the proposed construction area are Pacific harbor seal (Phoca 
vitulina richardsi) and California sea lion (Zalophus californianus).

                    Table 1--Marine Mammal Species Potentially Present in Region of Activity
----------------------------------------------------------------------------------------------------------------
               Species                        ESA status              MMPA status               Occurrence
----------------------------------------------------------------------------------------------------------------
Harbor Seal..........................  Not listed.............  Non-depleted...........  Frequent.
California Sea Lion..................  Not listed.............  Non-depleted...........  Frequent.
----------------------------------------------------------------------------------------------------------------

    General information on the marine mammal species found in Oregon 
coastal waters can be found in Caretta et al. (2014), which is 
available at the following URL: https://www.nmfs.noaa.gov/pr/sars/pdf/po2013.pdf. Refer to that document for information on these species. A 
list of marine mammals in the vicinity of the action and their status 
are provided in Table 1. Specific information concerning these species 
in the vicinity of the proposed action area is provided in detail in 
the Bergerson's IHA application (Turner and Campbell, 2015).

Potential Effects of the Specified Activity on Marine Mammals

    The effects of underwater noise from in-water pile removal and pile 
driving associated with the construction activities for the Front 
Street Transload Facility in Newport, Oregon, has the potential to 
result in behavioral harassment of marine mammal species and stocks in 
the vicinity of the action area. The Notice of Proposed IHA included a 
discussion of the effects of anthropogenic noise on marine mammals, 
which is not repeated here. No instances of hearing threshold shifts, 
injury, serious injury, or mortality are expected as a result of the 
construction activities given the strong likelihood that marine mammals 
would avoid the immediate vicinity of the pile driving area.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammals and other marine 
species are associated with elevated sound levels, but the project may 
also result in additional effects to marine mammal prey species and 
short-term local water turbidity caused by in-water construction due to 
pile removal and pile driving. These potential effects are

[[Page 65706]]

discussed in detail in the Federal Register notice for the proposed IHA 
and are not repeated here.

Mitigation Measures

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, and other means of effecting the 
least practicable adverse 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.
    For the Front Street Transload Facility construction project, NMFS 
is requiring Bergerson to implement the following mitigation measures 
to minimize the potential impacts to marine mammals in the project 
vicinity as a result of the in-water construction activities.

Time Restriction

    Work shall occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between November 1, 2015, 
and February 15, 2016.

Air Bubble Curtain

    Bergerson is required to install an air bubble curtain system 
around the pile during pile installation using an impact hammer.

Establishment of Exclusion Zone and Level B Harassment Zones of 
Influence

    Before the commencement of in-water pile driving activities, 
Bergerson shall establish Level A exclusion zones and Level B zones of 
influence (ZOIs). The received underwater sound pressure levels (SPLs) 
within the exclusion zone would be 190 dB (rms) re 1 [micro]Pa and 
above. The Level B ZOIs would encompass areas where received underwater 
SPLs are higher than 160 dB (rms) and 120 dB (rms) re 1 [micro]Pa for 
impulse noise sources (impact pile driving) and non-impulses noise 
sources (vibratory pile driving and mechanic dismantling), 
respectively.
    Based on measurements conducted nearby in similar water depth and 
sediment type in the Yaquina Bay for the NOAA Marine Operation Center P 
Test Pile Program (Miner, 2010), average vibratory hammer sound 
pressure level for 24-inch steel pile at 10 meters from the pile is 157 
dB re 1 [mu]Pa (Minor 2010; ICF Jones & Stokes and Illingworth and 
Rodkin 2009). Based on practical spreading model with a transmission 
loss constant of 15, the distance at which the sound pressure levels 
fall below the 120 dB (rms) re 1 [mu]Pa is approximately 1.8 miles from 
the pile (Miner, 2010).
    Modeling of exclusion zone and ZOIs for impact pile driving source 
level are based on measurements conducted at the nearby Tongue Point 
Facility in Astoria, Oregon, for installation of 24-in steel pile with 
an impact hammer (Illingworth and Rodkin, 2009). The result shows that 
the SPL at 10 m from the pile is 182 dB (rms) re 1 [micro]Pa. 
Nevertheless, a conservative 190 dB (rms) re 1 [micro]Pa value at 10 m 
and a practical spreading with a transmission loss constant of 15 are 
used to establish the exclusion zone and ZOI. As a result, the distance 
at which the SPLs fall below the 160 dB (rms) re 1 [micro]Pa behavioral 
threshold for impact hammering is approximately 0.62 miles. With a 
bubble curtain and an estimated 10 dB reduction in sound levels, the 
distance at which the sound pressure levels fall below the 160 dB RMS 
behavioral threshold for impact hammering is approximately 707 feet. 
The exclusion zone with the air bubble curtain system would be 7 feet 
from the pile.
    The exclusion zone for Level A harassment and ZOIs for Level B 
harassment are presented in Table 2 below.

     Table 2--Modeled Level A and Level B Harassment Zones for Vibratory and Impact Pile Driving Activities
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         Pile driving methods          Distance to 190 dB  (m)  Distance to 160 dB  (m)  Distance to 120 dB  (m)
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Vibratory pile driving/removal.......  NA.....................  NA.....................  2,900.
Impact pile driving..................  10/2.1 (with air bubble  1,000/215 (with air      NA.
                                        system).                 bubble system).
----------------------------------------------------------------------------------------------------------------

Soft Start

    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the pile driver reaches full power. Whenever 
there has been downtime of 30 minutes or more without pile driving, the 
contractor will initiate the driving with ramp-up procedures described 
below.
    For impact pile driving, the contractor would 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 of variations 
between 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'').
    For vibratory pile driving, the contractor will initiate noise from 
vibratory hammers for 15 seconds at reduced energy followed by a 30-
second waiting period. The procedure shall be repeated two additional 
times.

Shutdown Measures

    Bergerson shall implement shutdown measures if a marine mammal is 
sighted approaching the Level A exclusion zone. In-water construction 
activities shall be suspended until the marine mammal is sighted moving 
away from the exclusion zone, or if the animal is not sighted for 30 
minutes after the shutdown.
    In addition, Bergerson shall implement shutdown measures to prevent 
a take if a marine mammal species or stock that is not authorized under 
the IHA enters a zone of influence, or if the take of a specific marine 
mammal species or stock has reached the take limit issued under the 
IHA.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals.

[[Page 65707]]

     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned .
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of pile driving and pile removal or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of pile driving and pile removal, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to 1, above, or to reducing harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to 1, above, or to 
reducing the severity of harassment takes only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means of effecting the least 
practicable impact on marine mammals species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an incidental take authorization (ITA) for an 
activity, section 101(a)(5)(D) of the MMPA states that NMFS must set 
forth, ``requirements pertaining to the monitoring and reporting of 
such taking.'' The MMPA implementing regulations at 50 CFR 
216.104(a)(13) indicate that requests for ITAs 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 in the proposed action area. Bergerson submitted a marine 
mammal monitoring plan as part of the IHA application. It can be found 
at https://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below.
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, temporary 
hearing threshold shift (TTS), or permanent hearing threshold shift 
(PTS).
    (3) An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [ssquf] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli;
    [ssquf] An increased knowledge of the affected species; and
    [ssquf] An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.

Monitoring Measures

    During pile removal and installation, two land-based protected 
species observers (PSOs) would monitor the area from the best 
observation points available. If weather conditions prevent adequate 
land-based observations of the entire ensonified zones, boat-based 
monitoring would be implemented.
    The PSOs shall observe and collect data on marine mammals in and 
around the project area for 30 minutes before, during, and for 30 
minutes after all pile removal and pile installation work. If a PSO 
observes a marine mammal within or approaching the exclusion zone, the 
PSO shall notify the work crew to initiate shutdown measures. In 
addition, if a PSO observes a marine mammal species that is not 
authorized for take, or the take of such marine mammal species has 
reached the take limit, the PSO shall notify the work crew to initiate 
shutdown measures if the animal is approaching the zone of influence.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power).
    Data collection during marine mammal monitoring would consist of a 
count of all marine mammals by species, a description of behavior (if 
possible), location, direction of movement, type of construction that 
is occurring, time that pile replacement work begins and ends, any 
acoustic or visual disturbance, and time of the observation. 
Environmental conditions such as weather, visibility, temperature, tide 
level, current, and sea state would also be recorded.

Reporting Measures

    Bergerson shall submit a final monitoring report within 90 days 
after completion of the construction work or the expiration of the IHA, 
whichever comes earlier. This report would detail the monitoring 
protocol, summarize the data recorded during monitoring, and estimate 
the number of marine mammals that may have been harassed. NMFS would 
have an opportunity to provide comments on the report, and if NMFS has 
comments, Bergerson shall address the comments and submit a final 
report to NMFS within 30 days.
    In the unanticipated event that the construction activities clearly 
cause the take of a marine mammal in a manner prohibited by this 
Authorization, such as an injury, serious injury, or mortality, 
Bergerson shall immediately cease all

[[Page 65708]]

operations and immediately report the incident to the Chief, Permits 
and Conservation Division, Office of Protected Resources, NMFS, and the 
West Coast Regional Stranding Coordinators. The report must include the 
following information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Status of all sound source use in the 24 hours preceding the 
incident;
    (iv) Environmental conditions (e.g., wind speed and direction, sea 
state, cloud cover, visibility, and water depth);
    (v) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (vi) Species identification or description of the animal(s) 
involved;
    (vii) The fate of the animal(s); and
    (viii) Photographs or video footage of the animal (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with Bergerson to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Bergerson may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    In addition, NMFS requires Bergerson to notify NMFS' Office of 
Protected Resources and NMFS' Stranding Network within 48 hours of 
sighting an injured or dead marine mammal in the vicinity of the 
construction site. Bergerson shall provide NMFS with the species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition, if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    In the event that Bergerson finds an injured or dead marine mammal 
that is not in the vicinity of the construction area, Bergerson would 
report the same information as listed above to NMFS as soon as 
operationally feasible.

Estimated Take by Incidental Harassment

    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].
    As discussed above, in-water pile removal and pile driving 
(vibratory and impact) generate loud noises that could potentially 
harass marine mammals in the vicinity of Bergerson's proposed Front 
Street Transload Facility construction project.
    As mentioned earlier in this document, currently NMFS uses 120 dB 
re 1 [micro]Pa and 160 dB re 1 [micro]Pa at the received levels for the 
onset of Level B harassment from non-impulse (vibratory pile driving 
and removal) and impulse sources (impact pile driving) underwater, 
respectively. Table 3 summarizes the current NMFS marine mammal take 
criteria.

                 Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
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                Criterion                            Criterion definition                      Threshold
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Level A Harassment (Injury).............  Permanent Threshold Shift (PTS) (Any level  180 dB re 1 [mu]Pa
                                           above that which is known to cause TTS).    (cetaceans).
                                                                                      190 dB re 1 [mu]Pa
                                                                                       (pinnipeds).
                                                                                      root mean square (rms).
Level B Harassment......................  Behavioral Disruption (for impulse noises)  160 dB re 1 [mu]Pa (rms).
Level B Harassment......................  Behavioral Disruption (for non-impulse      120 dB re 1 [mu]Pa (rms).
                                           noise).
----------------------------------------------------------------------------------------------------------------

    As explained above, exclusion and ZOIs will be established that 
encompass the areas where received underwater sound pressure levels 
(SPLs) exceed the applicable thresholds for Level A and Level B 
harassments. In the case of Bergerson's proposed Front Street Transload 
Facility construction project, the Level B harassment ZOIs for impact 
and vibratory pile driving are at 215 m and 2,900 m from the source, 
respectively. The Level A harassment exclusion from impact pile driving 
is 2.1 m from the source.
    Incidental take is calculated for each species by estimating the 
likelihood of a marine mammal being present within a ZOI during active 
pile removal/driving. Expected marine mammal presence is determined by 
past observations and general abundance near the Front Street Transload 
Facility during the construction window. Ideally, potential take is 
estimated by multiplying the area of the ZOI by the local animal 
density. This provides an estimate of the number of animals that might 
occupy the ZOI at any given moment. However, there are no density 
estimates for any Puget Sound population of marine mammals. As a 
result, the take requests were estimated using local marine mammal data 
sets, and information from state and federal agencies.
    The calculation for marine mammal exposures is estimated by:

Exposure estimate = N (number of animals in the area) * 30 days of pile 
removal/driving activity

    Estimates include Level B acoustical harassment during pile removal 
and driving. All estimates are conservative, as pile removal/driving 
would not be continuous during the work day. Using this approach, a 
summary of estimated takes of marine mammals incidental to Bergerson's 
Front Street Transload Facility construction work are provided in Table 
4. The take calculation of California sea lion is described in 
Bergerson's IHA application. The take calculation of Pacific harbor 
seal is updated from Bergerson's IHA application and is described 
below.
    Surveys done at the time of the construction of the NOAA MOC-P 
facility show that the number of harbor seals using haulouts in Yaquina 
Bay fluctuates widely from day to day; therefore, the average daily 
count of seals at the haulout was used to estimate the number of seals 
that would likely be present within the project area during the entire 
anticipated work period. Because there is no data on the counts of 
harbor seals using the haulouts in Sally's Bend, the average daily 
count of harbor seals using the finger jetty haulout was used to 
estimate the total number of potential harbor seals subject to Level B 
harassment throughout the project period. Survey results for harbor 
seals using the Oyster Dock haulout were also used to yield more 
conservative take estimates. It is estimated that an average daily take 
of 34 seals, with a total of 1,020 harbor seal takes by Level B 
harassment for the proposed work period.

[[Page 65709]]



    Table 4--Estimated Numbers of Marine Mammals That May Be Exposed by Level B Harassment From Pile and Pile
                                               Driving Activities
----------------------------------------------------------------------------------------------------------------
                                                                Estimated marine
                           Species                                mammal takes       Abundance      Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal..........................................              1,020          16,165            6.31
California sea lion..........................................              1,100         296,750            3.71
----------------------------------------------------------------------------------------------------------------

Analysis and Determinations

Negligible Impact

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 4, given that the 
anticipated effects of Bergerson's Front Street Transload Facility 
construction on marine mammals are expected to be relatively similar in 
nature. There is no information about the nature or severity of the 
impacts, or the size, status, or structure of any species or stock that 
would lead to a different analysis for this activity, else species-
specific factors would be identified and analyzed.
    Bergerson's proposed Front Street Transload Facility construction 
project would involve vibratory pile removal and vibratory and impact 
pile driving activities. Elevated underwater noises are expected to be 
generated as a result of these activities. The exclusion zone for Level 
A harassment is extremely small (2.1 m from the source) with the use of 
an air bubble curtain system. The small exclusion zone combined with 
the implementation of the proposed monitoring and mitigation measures 
described above results in no expected Level A take of marine mammals. 
For vibratory pile removal and pile driving, noise levels are not 
expected to reach the level that may cause TTS, injury (including PTS), 
or mortality to marine mammals.
    Additionally, the sum of noise from Bergerson's proposed Front 
Street Transload Facility construction activities is confined to a 
limited area by surrounding landmasses (as shown in Figure 1 of the IHA 
application), which blocks underwater sound propagation; therefore, the 
noise generated is not expected to contribute to increased ocean 
ambient noise. In addition, due to shallow water depths in the project 
area, underwater sound propagation of low-frequency sound (which is the 
major noise source from pile driving) is expected to be poor.
    In addition, Bergerson's proposed activities are localized and of 
short duration. The entire project area is limited to Bergerson's Front 
Street Transload Facility construction work. The entire project would 
involve the removal of 25 existing piles and installation of 126 piles. 
The duration for pile removal and pile driving would be 30 days. These 
low-intensity, localized, and short-term noise exposures may cause 
brief startle reactions or short-term behavioral modification by the 
animals. These reactions and behavioral changes are expected to subside 
quickly when the exposures cease (Southall et al. 2007). Moreover, the 
proposed mitigation and monitoring measures are expected to reduce 
potential exposures and behavioral modifications even further. 
Additionally, no important feeding and/or reproductive areas for marine 
mammals are known to be near the proposed action area. Therefore, the 
take resulting from the proposed Front Street Transload Facility 
construction work is not reasonably expected to, and is not reasonably 
likely to, adversely affect the marine mammal species or stocks through 
effects on annual rates of recruitment or survival.
    The proposed project area is not a prime habitat for marine 
mammals, nor is it considered an area frequented by marine mammals. 
Therefore, behavioral disturbances that could result from anthropogenic 
noise associated with Bergerson's construction activities are expected 
to affect only a small number of marine mammals on an infrequent and 
limited basis.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. The 
project activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
Bergerson's Front Street Transload Facility construction project will 
have a negligible impact on the affected marine mammal species or 
stocks.

Small Number

    Based on analyses provided above, it is estimated that 
approximately 750 harbor seals and 1,100 California sea lions could be 
exposed to receive noise levels that could cause Level B behavioral 
harassment from the proposed construction work at the Front Street 
Transload Facility in Newport, Oregon. These numbers represent 
approximately 4.6% and 3.7% of the populations of Pacific harbor seal 
and California sea lion, respectively, that could be affected by Level 
B behavioral harassment, respectively (see Table 5 above), which are 
small percentages relative to the total populations of the affected 
species or stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, which are expected to reduce the

[[Page 65710]]

number of marine mammals potentially affected by the proposed action, 
NMFS finds that small numbers of marine mammals will be taken relative 
to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no subsistence uses of marine mammals in the proposed 
project area; and, thus, no subsistence uses impacted by this action. 
Therefore, NMFS has determined that the total taking of affected 
species or stocks would not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence 
purposes.

Endangered Species Act (ESA)

    NMFS has determined that issuance of the IHA will have no effect on 
listed marine mammals, as none are known to occur in the action area.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) and analyzed the 
potential impacts to marine mammals that would result from the Front 
Street Transload Facility construction project. A Finding of No 
Significant Impact (FONSI) was signed in October 2015. A copy of the EA 
and FONSI is available upon request (see ADDRESSES).

Authorization

    NMFS has issued an IHA to Bergerson for the potential harassment of 
small numbers of two marine mammal species incidental to the Front 
Street Transload Facility construction project in Newport, Oregon, 
provided the previously mentioned mitigation.

    Dated: October 21, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-27262 Filed 10-26-15; 8:45 am]
BILLING CODE 3510-22-P