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

Download as PDF 65704 Federal Register / Vol. 80, No. 207 / Tuesday, October 27, 2015 / Notices Dated: October 21, 2015. Julia Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [FR Doc. 2015–27208 Filed 10–26–15; 8:45 am] RIN 0648–XX08 BILLING CODE 3510–22–P Marine Mammals; File No. 14628 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. DEPARTMENT OF COMMERCE ACTION: Notice; issuance of permit amendment. Submission for OMB Review; Comment Request Notice is hereby given that National Museum of Natural History (NMNH), Smithsonian Institution (Charles W. Potter, Responsible Party), PO Box 37012, Washington, DC 20013 has been issued a minor amendment to Scientific Research Permit No. 14628. The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Agency: National Oceanic and Atmospheric Administration (NOAA). Title: NOAA’s Bay Watershed Education and Training (B–WET) Program National Evaluation System. OMB Control Number: 0648–0658. Form Number(s): None. Type of Request: Regular (revision and extension of a currently approved information collection). Number of Respondents: 8,086. Average Hours per Response: Awardee-respondents will complete an online survey in 60 minutes and teacher-respondents will complete two online surveys in 30 minutes each. Burden Hours: 1,773. Needs and Uses: This request is for revision and extension of a currently approved information collection. The NOAA Office of Education’s Bay Watershed Education and Training (B– WET) program seeks to contribute to NOAA’s mission by supporting education efforts to create an environmentally literate citizenry with the knowledge, attitudes, and skills needed to protect watersheds and related ocean, coastal, and Great Lakes ecosystems. B–WET currently funds projects in seven regions (California, Chesapeake Bay, Great Lakes, Gulf of Mexico, Hawaii, New England, and the Pacific Northwest). B–WET has created an across-region, internal evaluation system to provide ongoing feedback on program implementation and outcomes to ensure maximum quality and efficiency of the B–WET program. The evaluation system is sustained by B– WET staff with occasional assistance from an outside contractor. B–WET awardees and the awardees’ professional development teacherparticipants are asked to voluntarily complete online survey forms to provide AGENCY: SUMMARY: The amendment and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Jennifer Skidmore or Amy Sloan, (301) 427–8401. The requested amendment has been granted under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222–226), and the Fur Seal Act of 1966, as amended (16 U.S.C. 1151 et seq.). The original permit (No. 14628), issued on November 18, 2010 (75 FR 72794) authorizes the salvage, collection, importation, exportation, receipt, possession, archive, and analyses of marine mammal and endangered species parts under NMFS jurisdiction. No live animal takes and no incidental harassment of animals are authorized. Parts are archived by the NMNH and used to support research studies and incidental education. The minor amendment (No. 14628–01) extends the duration of the permit for one year, through November 30, 2016, but does not change any other terms or conditions of the permit. tkelley on DSK3SPTVN1PROD with NOTICES SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 19:58 Oct 26, 2015 Jkt 238001 National Oceanic and Atmospheric Administration PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 evaluation data. One individual from each awardee organization is asked to complete a form once per year of the award, and the teacher participants are asked to complete one form at the end of their professional development program and another form at the end of the following school year. Affected Public: State, local and tribal governments; not-for-profit institutions, business or other for-profit organizations, individuals or households. Frequency: Annually. Respondent’s Obligation: Voluntary. This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to OIRA_Submission@ omb.eop.gov or fax to (202) 395–5806. Dated: October 22, 2015. Sarah Brabson, NOAA PRA Clearance Officer. [FR Doc. 2015–27331 Filed 10–26–15; 8:45 am] BILLING CODE 3510–12–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XE097 Taking of Marine Mammals Incidental to Specified Activities; Front Street Transload Facility Construction National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental take authorization. AGENCY: 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, SUMMARY: E:\FR\FM\27OCN1.SGM 27OCN1 65705 Federal Register / Vol. 80, No. 207 / Tuesday, October 27, 2015 / Notices Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 EastWest 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: http://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 ESA status MMPA status Harbor Seal ..................................................................... California Sea Lion .......................................................... tkelley on DSK3SPTVN1PROD with NOTICES Species Not listed ........................... Not listed ........................... Non-depleted ..................... Non-depleted ..................... 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: http:// 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). VerDate Sep<11>2014 19:58 Oct 26, 2015 Jkt 238001 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 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 Occurrence Frequent. Frequent. 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 E:\FR\FM\27OCN1.SGM 27OCN1 65706 Federal Register / Vol. 80, No. 207 / Tuesday, October 27, 2015 / Notices discussed in detail in the Federal Register notice for the proposed IHA and are not repeated here. Air Bubble Curtain Bergerson is required to install an air bubble curtain system around the pile during pile installation using an impact hammer. 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 inwater 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. 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 mPa 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 mPa 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 mPa (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 mPa 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 mPa. Nevertheless, a conservative 190 dB (rms) re 1 mPa 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 mPa 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 Pile driving methods Distance to 190 dB (m) Distance to 160 dB (m) Vibratory pile driving/removal .......................................... Impact pile driving ........................................................... NA ...................................... 10/2.1 (with air bubble system). NA ...................................... 1,000/215 (with air bubble system). tkelley on DSK3SPTVN1PROD with NOTICES 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 VerDate Sep<11>2014 19:58 Oct 26, 2015 Jkt 238001 ‘‘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 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 Distance to 120 dB (m) 2,900. NA. 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. E:\FR\FM\27OCN1.SGM 27OCN1 tkelley on DSK3SPTVN1PROD with NOTICES Federal Register / Vol. 80, No. 207 / Tuesday, October 27, 2015 / Notices • 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. VerDate Sep<11>2014 19:58 Oct 26, 2015 Jkt 238001 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 http://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: D 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); D 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); D Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli; D An increased knowledge of the affected species; and PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 65707 D 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 × 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 E:\FR\FM\27OCN1.SGM 27OCN1 65708 Federal Register / Vol. 80, No. 207 / Tuesday, October 27, 2015 / Notices 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 mPa and 160 dB re 1 mPa 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 Criterion Criterion definition Threshold Permanent Threshold Shift (PTS) (Any level above that which is known to cause TTS). Level B Harassment ........ Level B Harassment ........ tkelley on DSK3SPTVN1PROD with NOTICES Level A Harassment (Injury). Behavioral Disruption (for impulse noises) ...................................................... Behavioral Disruption (for non-impulse 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 VerDate Sep<11>2014 19:58 Oct 26, 2015 Jkt 238001 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. PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 180 dB re 1 μPa (cetaceans). 190 dB re 1 μPa (pinnipeds). root mean square (rms). 160 dB re 1 μPa (rms). 120 dB re 1 μPa (rms). 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. E:\FR\FM\27OCN1.SGM 27OCN1 65709 Federal Register / Vol. 80, No. 207 / Tuesday, October 27, 2015 / Notices TABLE 4—ESTIMATED NUMBERS OF MARINE MAMMALS THAT MAY BE EXPOSED BY LEVEL B HARASSMENT FROM PILE AND PILE DRIVING ACTIVITIES Estimated marine mammal takes Species Pacific harbor seal ................................................................................................................. California sea lion .................................................................................................................. tkelley on DSK3SPTVN1PROD with NOTICES 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., populationlevel 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 VerDate Sep<11>2014 19:58 Oct 26, 2015 Jkt 238001 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 lowfrequency 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 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 1,020 1,100 Abundance 16,165 296,750 Percentage 6.31 3.71 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 E:\FR\FM\27OCN1.SGM 27OCN1 65710 Federal Register / Vol. 80, No. 207 / Tuesday, October 27, 2015 / Notices 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 DEPARTMENT OF DEFENSE Department of the Army tkelley on DSK3SPTVN1PROD with NOTICES Performance Review Board Membership Department of the Army, DoD. Notice. AGENCY: ACTION: Notice is given of the names of members of a Performance Review Board for the Department of the Army. DATES: Effective Date: November 20, 2015. SUMMARY: VerDate Sep<11>2014 19:58 Oct 26, 2015 Jkt 238001 FOR FURTHER INFORMATION CONTACT: Barbara Smith, Civilian Senior Leader Management Office, 111 Army Pentagon, Washington, DC 20310–0111. SUPPLEMENTARY INFORMATION: Section 4314(c)(1) through (5) of Title 5, U.S.C., requires each agency to establish, in accordance with regulations, one or more Senior Executive Service performance review boards. The boards shall review and evaluate the initial appraisal of senior executives’ performance by supervisors and make recommendations to the appointing authority or rating official relative to the performance of these executives. The Department of the Army Performance Review Board will be composed of a subset of the following individuals: 1. Ms. Lisha Adams, Executive Deputy to the Commanding General, United States Army Materiel Command. 2. LTG Thomas P. Bostick, Commanding General, United States Army Corps of Engineers. 3. Mr. Gabriel Camarillo, Principal Deputy Assistant Secretary of the Army for Acquisition, Policy and Logistics, Office of the Assistant Secretary of the Army (Acquisition, Logistics, and Technology). 4. Ms. Gwendolyn R. DeFilippi, Director, Civilian Senior Leader Management Office, Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs). 5. Ms. Sue A. Engelhardt, Director of Human Resources, United States Army Corps of Engineers. 6. Mr. Randall Exley, The Auditor General, Auditor General Office. 7. Mr. Kevin M. Fahey, Executive Director for Agile Acquisition, Office of the Assistant Secretary of the Army (Acquisition, Logistics and Technology). 8. Mr. Patrick K. Hallinan, Executive Director of the Army National Cemeteries Program, Dept of the Army. 9. Ms. Ellen M. Helmerson, Deputy Chief of Staff, G–8, United States Army Training and Doctrine Command. 10. Mr. David Jimenez, Executive Technical Director/Deputy to the Commander, United States Army Test and Evaluation Command. 11. MG Daniel I. Karbler, Commanding General, United States Army Test and Evaluation Command. 12. LTG Mary A. Legere, Deputy Chief of Staff, G–2, Office of the Deputy Chief of Staff, G–2. 13. Mr. Mark R. Lewis, Deputy Chief Management Officer, Office of the Under Secretary of the Army. 14. LTG Kevin W. Mangum, Deputy Commanding General/Chief of Staff, U.S. Army Training and Doctrine Command. PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 15. Mr. David Markowitz, Assistant Deputy Chief of Staff for Operations, G– 3/5/7, Office of the Deputy Chief of Staff, G–3/5/7. 16. Ms. Kathleen S. Miller, Assistant Deputy Chief of Staff, G–4, Office of the Deputy Chief of Staff, G–4. 17. Mr. William Moore, Deputy Chief of Staff, G–1/8 (Personnel and Logistics), United Stated Army Training and Doctrine Command. 18. Mr. Levator Norsworthy Jr., Deputy General Counsel(Acquisition)/ Senior Deputy General Counsel, Office of the General Counsel. 19. Mr. Gerald B. O’Keefe, Administrative Assistant to the Secretary of the Army, Office of the Administrative Assistant to the Secretary of the Army. 20. Mr Philip R. Park, Acting General Counsel, Office of the General Counsel. 21. Ms. Diane M. Randon, Deputy Assistant Chief of Staff for Installation Management, Office of the Assistant Chief of Staff for Installation Management. 22. Mr. Jeffrey N. Rapp, Assistant Deputy Chief of Staff, G–2 Office of the Deputy Chief of Staff, G–2. 23. Mr. J. Randall Robinson, Principal Deputy to the Assistant Secretary of the Army (Installations, Energy and Environment), Office of the Assistant Secretary of the Army (Installations and Environment). 24. Mr. Craig R. Schmauder, Deputy General Counsel (Installation, Environment and Civil Works), Office of the General Counsel. 25. Mr. Karl F. Schneider, Principal Deputy Assistant Secretary of the Army (Manpower and Reserve Affairs), Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs). 26. Honorable Heidi Shyu, Assistant Secretary of the Army (Acquisition, Logistics and Technology), Office of the Assistant Secretary of the Army (Acquisition, Logistics and Technology). 27. Ms. Caral Spangler, Principal Deputy Assistant Secretary of the Army (Financial Management and Comptroller). 28. MG Richard L. Stevens, Deputy Chief of Engineers/Deputy Commanding General, United States Army Corps of Engineers. 29. Mr. Lawrence Stubblefield, Deputy Assistant Secretary of the Army (Diversity and Leadership), Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs). 30. Mr. Donald C. Tison, Assistant Deputy Chief of Staff for Programs, G– 8, Office of the Deputy Chief of Staff, G– 8. 31. GEN Dennis L. Via, Commanding General, United States Army Materiel Command. E:\FR\FM\27OCN1.SGM 27OCN1

Agencies

[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.

-----------------------------------------------------------------------

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: 
http://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: http://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
----------------------------------------------------------------------------------------------------------------
         Pile driving methods          Distance to 190 dB  (m)  Distance to 160 dB  (m)  Distance to 120 dB  (m)
----------------------------------------------------------------------------------------------------------------
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 http://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
----------------------------------------------------------------------------------------------------------------
                Criterion                            Criterion definition                      Threshold
----------------------------------------------------------------------------------------------------------------
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