Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Pier 58 Reconstruction Project in Seattle, Washington, 45393-45398 [2023-15088]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 135 (Monday, July 17, 2023)]
[Notices]
[Pages 45393-45398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15088]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD133]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Pier 58 Reconstruction Project 
in Seattle, Washington

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

ACTION: Notice; request for comments on proposed renewal incidental 
harassment authorization.

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SUMMARY: NMFS received a request from the City of Seattle, Washington 
(City) for the renewal of their currently active incidental harassment 
authorization (IHA) to take marine mammals incidental to the Pier 58 
Reconstruction Project. These activities are a subset of the initial 
work or are nearly identical to work covered in the current 
authorization. Pursuant to the Marine Mammal Protection Act, prior to 
issuing the currently active IHA, NMFS requested comments on both the 
proposed IHA and the potential for renewing the initial authorization 
if certain requirements were satisfied. The renewal requirements have 
been satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed renewal not 
previously provided during the initial 30-day comment period.

DATES: Comments and information must be received no later than August 
1, 2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, and should be submitted via email to 
[email protected] Electronic copies of the original application, 
renewal request, and supporting documents (including NMFS Federal 
Register notices of the original proposed and final authorizations, and 
the previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed below.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

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

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, an incidental harassment authorization is issued.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.

[[Page 45394]]

    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time 1-year renewal IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with 
relevant comments on the initial IHA, have been considered in the 
development of this proposed IHA renewal, and a summary of agency 
responses to applicable comments is included in this notice. NMFS will 
consider any additional public comments prior to making any final 
decision on the issuance of the requested renewal, and agency responses 
will be summarized in the final notice of our decision.

National Environmental Policy Act

    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has preliminarily determined that the application of this 
categorical exclusion remains appropriate for this renewal IHA.

History of Request

    On May 20, 2022, NMFS issued an IHA to the City to take marine 
mammals incidental to Pier 58 Reconstruction Project in Seattle, 
Washington (87 FR 31985), effective from August 1, 2022 through July 
31, 2023. NMFS received an application for the renewal of that initial 
IHA on April 3, 2023. As described in the application for renewal IHA, 
the activities for which incidental take is requested are a subset of 
those covered in the initial authorization while a small amount of 
additional, nearly identical work not covered under the initial 
authorization has also been included in the request for a renewal IHA. 
As required, the City also provided a preliminary monitoring report 
which confirms that it has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted.

Description of the Specified Activities and Anticipated Impacts

    The City is in the process of reconstructing Waterfront Park, which 
will be renamed Pier 58, along the Elliott Bay shoreline in Seattle, 
Washington. The City is repairing structural and safety deficiencies 
and optimizing public access and recreational uses of the piers. The 
Pier 58 reconstruction project includes vibratory removal of existing 
in-water piles and vibratory and impact installation of new piles. The 
reconstructed pier requires installation of 120 permanent 30-inch steel 
piles by vibratory hammer and impact proofing. Under the initial IHA, 
76 steel piles were successfully installed. The remaining 44 piles, 
which represent a subset of the originally planned 120 piles, would be 
installed under the renewal IHA. In addition, installation of 100 24-
inch temporary steel template piles by vibratory hammer and impact 
proofing was analyzed for the initial IHA. The 24-inch piles were to be 
subsequently removed by vibratory extraction. However, none of the 100 
24-inch temporary piles were installed during the Season 1 and these 
piles may not be required at all under the renewal IHA. At most, a 
subset of 33 24-inch temporary piles would be utilized. A total of 31 
existing steel H-piles and timber piles were removed under the initial 
IHA by pulling the piles using vibratory extraction or the clamshell 
bucket method. The nearly identical activity included under the 
proposed renewal IHA is the removal of eight 12-inch creosote timber 
piles (1 day) by vibratory hammer and the vibratory installation of 
eight 16-inch steel piles (2 days) at the nearby Don Armeni Boat Ramp. 
All in-water work with the potential to affect marine mammals will 
occur during the work window allowed by NOAA, U.S. Fish and Wildlife 
Service, U.S. Army Corps of Engineers, and Washington State Department 
of Fish and Wildlife. For this renewal request, this window is 
anticipated to be September 1, 2023, through February 15, 2024. Pile 
removal and installation will occur during daylight hours, typically 
during a work shift of 8 hours or fewer. The work would include periods 
of vibratory removal of timber piles, vibratory installation of steel 
piles, and impact installation of steel piles.

[[Page 45395]]

    Under the initial IHA, take by Level B harassment was authorized 
for 11 species/stocks and limited take by Level A harassment was 
authorized for 3 of these species (harbor porpoise (Phocoena phocoena), 
Dall's porpoise (Phocoenoides dalli), and harbor seal (Phoca 
vitulina)). No species were observed in the estimated Level A 
harassment zones during Season 1 pile driving. Observations in the 
Level B harassment zones during pile activity include 130 harbor seals 
out of 660 take incidents authorized; 92 California sea lions (Zalophus 
californianus) out of 700 incidents of take that were authorized; and 
one Steller sea lion (Eumetopias jubatus) out of 140 incidents of take 
that were authorized. No other species were observed in the Level B 
harassment zones during pile driving activity. The total number of 
potential takes by Level B harassment for Season 1 were only a small 
fraction of what were authorized in the IHA: potential harbor seal 
takes were only 20 percent of the authorized takes, potential 
California sea lion takes were only 13 percent of the authorized takes, 
and potential Steller sea lion takes were only 0.7 percent of the 
authorized takes.
    As part of the originally authorized IHA, Season 1 in-water pile 
activity occurred at Pier 58 across 45 workdays between October 3, 
2022, and February 15, 2023. Most workdays consisted of both vibratory 
and impact hammer installation of 30-inch steel piles; vibratory pile 
activity occurred on 36 workdays, and impact pile activity occurred on 
36 workdays. Of the total 81 piles installed, 5 test piles and 76 
production piles were installed via vibratory and impact hammer.
    It is anticipated that approximately 8 additional days will be 
required for installation of the remaining 44 30-inch steel piles at 
Pier 58, and approximately 10 days will be required for impact proofing 
of the 30-inch steel piles. It is anticipated that only 1 day will be 
required to remove the eight timber piles at Don Armeni Boat Ramp, and 
2 days will be required for the installation of eight 16-inch steel 
piles. This work could occur over a period of 3 months.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed, including the installation of 30-inch permanent steel 
piles and 24-inch temporary template steel piles may be found in the 
notices of the proposed and final IHAs for the initial authorization 
(87 FR 12089, March 3, 2022; 87 FR 31985, May 26, 2022). As previously 
mentioned, these specific activities represent a subset of the 
activities authorized in the initial IHA that would not be completed 
prior to its expiration. The location, timing, and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the previous notice for the initial 
IHA.
    Minor changes to the initial scope include the removal of eight 12-
inch creosote timber piles by vibratory hammer and the vibratory 
installation of eight 16-inch steel piles at the boat ramp. Vibratory 
removal of the 12-inch creosote timber piles, requiring an estimated 2 
days, is nearly identical to the vibratory removal of H-piles and 
timber piles, which required 3 days, under the initial IHA. The 
installation of eight 16-inch steel piles under the proposed renewal 
IHA is nearly identical to the installation of 30-inch steel piles 
under the initial IHA with the only difference being the size of piles 
(30-inch vs. 16-inch) and the duration (36 days vs. 2 days). The 
proposed renewal would be effective for a period not exceeding 1 year 
from the date of expiration of the initial IHA. The effective dates 
would be from August 1, 2023, through July 31, 2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Notice of the Proposed IHA for the initial authorization (87 FR 12089, 
March 3, 2022). NMFS has reviewed the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the Description of the Marine Mammals in the 
Area of Specified Activities contained in the supporting documents for 
the initial IHA (87 FR 12089, March 3, 2022).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which the 
authorization of take is proposed here may be found in the Notice of 
the Proposed and Final IHA (87 FR 12089, March 3, 2022; 87 FR 31985, 
May 26, 2022) for the initial authorization. NMFS has reviewed the 
monitoring data from the initial IHA, recent draft Stock Assessment 
Reports, information on relevant Unusual Mortality Events, and other 
scientific literature, and determined that neither this nor any other 
new information affects our initial analysis of impacts on marine 
mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Notice of the Proposed 
and/or Final IHAs for the initial authorization (87 FR 12089, March 3, 
2022; 87 FR 31985, May 26, 2022). Note that the sound source levels 
(SLs) for the vibratory and impact installation of 30-inch steel piles 
have been updated based on acoustic measurements from Season 1. The 
Waterfront Park Reconstruction Project Acoustic Monitoring Report by 
the Greenbusch Group (2023a) may be found as an attachment to the 
City's IHA renewal application. Data revealed that the SL for vibratory 
installation of steel 30-inch piles was 170 decibels (dB) root mean 
square (RMS), and the SL for impact installation of 30-inch steel piles 
was 187 dB RMS with a peak of 201.5 dB. Note that the unweighted value 
for impact driving of 30-inch steel piles (187 dB) was not listed in 
the Acoustic Monitoring Report but was provided directly by Greenbusch 
from the Season 1 monitoring data. These SLs were greater than those 
utilized for the initial IHA (163 dB RMS for vibratory installation; 
180 dB RMS and 193 dB Peak for impact installation). Additionally, the 
total strikes per day during impact installation of 30-inch steel piles 
was increased from 1,200 strikes per day in Season 1 (3 piles at 400 
strikes per pile) to 4,500 strikes per day (5 piles at 900 strikes per 
pile) under the proposed IHA renewal. The increase in strikes per pile 
(from 400 to 900 strikes) is based on data from the Waterfront Park 
Reconstruction Project Acoustic Monitoring Report (Greenbusch 2023a).
    The source level used for the vibratory installation of 16-inch 
steel piles (158 dB RMS) at Don Armeni Boat Ramp was found in Caltrans 
(2020) while the source level used for the vibratory removal of 12-inch 
timber piles (145 dB RMS) at the Don Armeni Boat Ramp was taken from 
the Pier 63 Removal Project Acoustic Monitoring Report (Greenbusch 
2023b).
    Table 1 below shows the distances to the Level A and Level B 
harassment zones during Season 1 under the initial IHA while Table 2 
shows the distances during Season 2 under the proposed IHA renewal.

[[Page 45396]]



         Table 1--Pier 58 Level A Harassment and Level B Harassment Zones Under Season 1 and Initial IHA
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                                              Level A harassment zone (m)
                                -------------------------------------------------------   Level B     Number of
  Pile size, type, and method        LF         MF         HF                            harassment      days
                                  cetacean   cetacean   cetacean   Phocids    Otariids    zone (m)
----------------------------------------------------------------------------------------------------------------
Timber and steel H-pile removal        6.1        0.5        9.0        3.7        0.3        1,359            9
30-in steel vibratory install,        19.3        1.7       28.6       11.7        0.8        7,357           36
 24-in steel vibratory install
 and removal *.................
30-in steel impact install.....      153.3        5.5      182.6       82.0        6.0          215  ...........
----------------------------------------------------------------------------------------------------------------
* No installation or removal of 24-in steel piles was conducted.


    Table 2--Pier 58 Level A Harassment and Level B Harassment Zones From Season 2 Under Proposed IHA Renewal
----------------------------------------------------------------------------------------------------------------
                                              Level A harassment zone (m)
                                -------------------------------------------------------   Level B     Number of
  Pile size, type, and method        LF         MF         HF                            harassment      days
                                  cetacean   cetacean   cetacean   Phocids    Otariids    zone (m)
----------------------------------------------------------------------------------------------------------------
Timber vibratory removal.......        1.1        0.1        1.6        0.7        0.0          453            1
30-in steel vibratory install,        57.0        5.1       84.3       34.6        2.4       21,710            8
 24-in steel vibratory install
 and removal *.................
30-inch steel impact                 550.7       19.6      655.9      294.7       21.5          616           10
 installation..................
16-inch steel vibratory                9.0        0.8       13.3        5.4        0.4        3,415            2
 installation..................
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* Use of 24-inch temporary piles may not be necessary under the renewal IHA. At most, a subset of 33 24-inch
  piles would be utilized. Note that if the 24-inch steel pile installation and removal activities occur, it
  would be on the same days as vibratory and impact driving of the 30-inch piles, so there are no added extra
  days for this activity.

    The Level A and Level B harassment zone sizes for 30-inch steel 
pile impact and vibratory installation were calculated to be larger for 
the Season 2 renewal IHA than those used in Season 1 under the initial 
IHA. This is due to the results from Season 1 acoustic measurements 
that demonstrated higher SLs for vibratory and impact driving. In 
addition, increased zone sizes result from an increase in the number of 
strikes per pile, number of piles per day and total number of strikes 
per day for impact driving. Additionally, while the behavioral 
harassment zone for 30-inch vibratory installation has been calculated 
to extend to just under 22 kilometers (km), the actual maximum 
ensonfied distance is approximately 14 km since the sound field is 
constrained by the shoreline of Elliott Bay as well as by Bainbridge 
Island located west of Elliott Bay.
    The stocks taken (11 total), methods of take (impact and vibratory 
installation; vibratory removal), and types of take (11 by Level B 
harassment; 3 by Level A harassment) remain unchanged from the 
previously issued IHA covering Season 1. The City utilized the same 
approach for estimating take for Season 2 and the renewal IHA as was 
used in support of the initial IHA. The results of the preliminary 
monitoring report were also considered. The 30-inch pile driving work 
for Pier 58 is anticipated to occur over 18 days within an estimated 2 
month time period. The pile removal and driving work for Don Armeni is 
anticipated to occur over 3 days within 1 month of work.
    Detailed explanations describing how the take numbers were derived 
from observational data may be found in the notice of final IHA (87 FR 
31985, May 26, 2022). Note that even though the Level A and Level B 
harassment zone sizes are larger in the renewal IHA compared to the 
initial IHA, as a result of NMFS' consideration of new site-specific 
data, we have concluded that the authorized take numbers remain 
appropriate and sufficient. As part of the Season 1 monitoring 
requirements, the City was required to station a protected species 
monitor on the Seattle-Bainbridge Ferry whenever vibratory installation 
was underway. The Ferry runs non-stop throughout the day and the PSO 
recorded all animal observations, even those outside of the specified 
harassment zones. The number of observations beyond the Level B 
harassment zone during Season 1 (7,357 m) was comparatively small. Only 
four species were observed beyond the behavioral harassment zone.
    A brief summary of take assumptions for each species is provided 
here. For gray whales, minke whales, and northern elephant seals, the 
City, with NMFS' concurrence, assumed a single animal would be taken 
per month by Level B harassment. For long-beaked common dolphin and 
common bottlenose dolphin, the City assumed, and NMFS concurred, there 
would be seven takes per month by Level B harassment. For transient 
killer whales it was assumed that six animals could be taken per month. 
The Level A harassment zone is larger than the Level B harassment zone 
for high-frequency cetaceans. For the harbor porpoise, it was assumed 
that six animals could be taken per day by Level B harassment. That is, 
they may enter into the larger Level A harassment zone, but are 
unlikely to remain long enough to accumulate energy at levels that 
would result in injury. Although the City must implement a shutdown 
zone of 660 m during this activity, due to the cryptic nature and lower 
detectability of harbor porpoises at large distances, the City 
anticipates that up to six of the harbor porpoises (two per month) that 
enter the Level A harassment zone could enter undetected and remain 
long enough to experience auditory injury. It was assumed that up to 12 
Dall's porpoises could experience Level B harassment per month. As a 
high frequency cetacean, the Level A harassment zone is larger than the 
Level B harassment zone. As with harbor porpoises, the Dall's porpoise 
could enter into the Level A harassment zone, but are unlikely to 
remain long enough to sustain auditory injury. Therefore, the animal 
would be exposed to Level B harassment. The City must implement a 
shutdown zone of 660 m during this activity, but anticipates that due 
to the cryptic nature and lower detectability of harbor porpoises at 
large distances, up

[[Page 45397]]

to 6 of the Dall's porpoises (2 per month) that enter the Level A 
harassment zone could remain long enough to experience auditory injury. 
It was assumed that up to 10 California sea lions and 2 Steller sea 
lions could be taken by Level B harassment each in-water work day. NMFS 
concurred with the City's request for take by Level B harassment of a 
single northern elephant seal per month. Finally, it was assumed that 
10 harbor seals could enter the Level B harassment zone per day and 1 
seal may approach closer and enter the 82 m Level A harassment zone 
before the animal is detected and activities shut down.

 Table 3--Proposed Take of Marine Mammals by Level A and Level B Harassment From Pier 58 Renewal IHA by Species
                                     and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                         Proposed take   Proposed take
             Species                      Stock           by Level A      by Level B       Stock      Percent of
                                                          harassment      harassment     abundance      stock
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal..............  Washington Northern              21             189       11,036         1.90
                                    Inland Waters
                                    stock.
Northern elephant seal...........  California breeding               0               3      187,386        <0.01
California sea lion..............  U.S................               0             210      257,606         0.08
Steller sea lion.................  Eastern U.S........               0              42       43,201         0.10
Harbor porpoise..................  Washington Inland                 6             120       11,233         1.12
                                    Waters.
Dall's porpoise..................  California/Oregon/                6              30       16,498         0.22
                                    Washington.
Long-beaked common dolphin.......  California.........               0              21       83,379         0.03
Common bottlenose dolphin........  California/Oregon/                0              21        3,477         0.60
                                    Washington
                                    Offshore.
Transient killer whale...........  West Coast                        0              18          349         5.16
                                    Transient.
Gray whale.......................  Eastern North                     0               3       26,960         0.01
                                    Pacific.
Minke whale......................  California/Oregon/                0               3          915         0.33
                                    Washington Stock.
----------------------------------------------------------------------------------------------------------------

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are nearly identical to 
those included in the FR Notice announcing the issuance of the initial 
IHA (87 FR 31985, May 26, 2022), although the size of the shutdown and 
Level B harassment areas has been revised as appropriate, as shown in 
Table 4 below. The following identical measures are proposed for this 
renewal:
     Shut down construction operations (including in-water 
heavy machinery work other than pile driving) if a marine mammal comes 
within 10 m of construction activity or a vessel involved with 
construction activity (e.g., barge) to avoid direct physical 
interaction with marine mammals;
     Shut down during active pile driving if marine mammals 
approach pile driving activities within hearing group-specific shutdown 
zones;
     Contact the local marine mammal sightings network (Orca 
Network) hourly to obtain real-time sightings reports of marine mammals 
in the project area;
     Shut down if any species for which take has not been 
authorized (e.g., Southern Resident killer whales, humpback whales), or 
a species for which take has been authorized but the authorized take 
numbers have been met, enters the Level B harassment zones;
     Implement impact pile driving soft starts whereby hammer 
energy is gradually ramped up;
     Use of a bubble curtain during all impact pile driving.
     Use of NMFS-approved protected species observers (PSOs) to 
monitor the entire Level A and Level B harassment zones;
     Submit draft reports on all monitoring within 90 calendar 
days of the completion of marine mammal monitoring at each pier or 60 
days prior to the issuance of any subsequent IHAs for these projects, 
whichever comes first;
     Prepare and submit final reports within 30 days following 
resolution of comments on the draft report from NMFS;
     Submit all PSO datasheets and/or raw sightings data (in a 
separate file from the final reports referenced above); and
     Report injured or dead marine mammals.
    The shutdown and Level B harassment zones shown in Table 4 have 
been revised from the Season 1 initial IHA to reflect the updated SLs 
associated with 30-inch impact and vibratory driving as well as the 
increase in strikes per day for impact driving described previously.

                     Table 4--Proposed Shutdown and Level B Harassment Zones for IHA Renewal
----------------------------------------------------------------------------------------------------------------
                                                          Minimum shutdown zone (m)
                                        ------------------------------------------------------------   Level B
      Pile size, type, and method            LF          MF          HF                               harassment
                                          cetacean    cetacean    cetacean     Phocid      Otariid     zone (m)
----------------------------------------------------------------------------------------------------------------
Timber vibratory removal (Don Armeni)..          10          10          10          10          10          453
30-inch steel vibratory installation...          60          10          85          35          10       21,710
30-inch steel impact installation......         555          20         660         295          25          616
16-inch steel vibratory installation             10          10          15          10          10        3,415
 (Don Armeni)..........................
----------------------------------------------------------------------------------------------------------------

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (87 
FR 12089, March 3, 2022) and solicited public comments on both our 
proposal to issue the initial IHA for the project and on the potential 
for a renewal IHA, should certain requirements be met. No comments were 
submitted to NMFS during the public comment period in response to the 
publication of the notice

[[Page 45398]]

of a proposed IHA (87 FR 12089, March 3, 2022).

Preliminary Determinations

    The City is in the process of reconstructing Waterfront Park which 
includes vibratory removal of existing in-water piles and vibratory and 
impact installation of new piles. The reconstructed pier requires 
installation of 120 permanent 30-inch steel piles by vibratory hammer 
and impact proofing. Under the initial IHA, 76 steel piles were 
successfully installed. The remaining 44 piles, which represent a 
subset of the originally planned 120 piles, would be installed under 
the renewal IHA. The pile type, size and method of installation (i.e., 
vibratory, impact) would be identical to that conducted in Season 1. A 
total of 31 existing steel H-piles and timber piles were removed under 
the initial IHA by pulling the piles using a vibratory extraction 
method or clamshell bucket. A nearly identical activity proposed under 
the renewal IHA would be the removal of eight 12-inch creosote timber 
piles (1 day) by vibratory hammer and the vibratory installation of 
eight 16-inch steel piles (2 days) at the Don Armeni Boat Ramp.
    A detailed description of the construction activities for which 
take is proposed, including the installation of 30-inch permanent steel 
piles and, potentially, 24-inch temporary template steel piles may be 
found in the notice of the proposed and final IHA for the initial 
authorization (87 FR 12089, March 3, 2022; 87 FR 31985, May 26, 2022). 
As previously mentioned, these specific activities represent a subset 
of the activities authorized in the initial IHA that would not be 
completed prior to its expiration.
    Minor changes to the initial scope as described in notice of the 
proposed and final IHA for the initial authorization (87 FR 12089, 
March 3, 2022; 87 FR 31985, May 26, 2022) include the removal of eight 
12-inch creosote timber piles by vibratory hammer and the vibratory 
installation of eight 16-inch steel piles at the boat ramp. Vibratory 
removal of the 12-inch creosote timber piles, requiring an estimated 2 
days, is nearly identical to the vibratory removal of H-piles and 
timber piles, which required 3 days, under the initial IHA. The 
installation of eight 16-inch steel piles under the proposed renewal 
IHA is nearly identical to the installation of 30-inch steel piles 
under the initial IHA with the only difference being the size of piles 
(30-inch vs. 16-inch) and the duration (36 days vs. 2 days).
    There is no new information which would change our potential 
impacts to the specified marine mammal species and stocks. The 
anticipated effects of the action under the renewal IHA are expected to 
be the same as those that may have occurred under the initial IHA. The 
species proposed for take are identical to those that were identified 
in the initial IHA. The same species that were authorized for limited 
take by Level A harassment under the initial IHA are proposed for take 
by Level A harassment under the renewal IHA. The Level A and Level B 
harassment zones for 30-inch pile installation under the renewal IHA 
are larger than those contained in the initial IHA. However, the number 
of animals of each species proposed for authorized take is less than 
what was authorized under the initial IHA since the number of in-water 
work days anticipated is less than half of the number of work days that 
occurred under the initial IHA. Furthermore, PSO monitoring of the 
renewal IHA's extended harassment zones demonstrated that most take 
occur closer to the in-water driving location. The mitigation and 
monitoring measures proposed for the renewal IHA are identical to those 
mandated in the initial IHA, with one exception. The shutdown and Level 
B harassment zones under the proposed renewal IHA are larger than those 
employed in Season 1.
    After analyzing the City's application for the initial IHA, NMFS 
determined that the action would have a negligible impact on all 
affected stocks and that the taking of authorized species would be 
small relative to population size (< 6 percent of the total abundance 
for all stocks).
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has preliminarily 
determined the following: (1) the required mitigation measures will 
affect the least practicable impact on marine mammal species or stocks 
and their habitat; (2) the authorized takes will have a negligible 
impact on the affected marine mammal species or stocks; (3) the 
authorized takes represent small numbers of marine mammals relative to 
the affected stock abundances; (4) The City's activities will not have 
an unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and; (5) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from these activities. Therefore, NMFS has determined that 
consultation under section 7 of the ESA is not required for this 
action.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to the City for conducting activities associated 
with the Pier 58 Reconstruction Project in Seattle, Washington from 
August 1, 2023 through July 31, 2024, provided the previously described 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed and final initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the 
proposed renewal IHA, and any other aspect of this notice. Please 
include with your comments any supporting data or literature citations 
to help inform our final decision on the request for MMPA 
authorization.

    Dated: July 12, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-15088 Filed 7-14-23; 8:45 am]
BILLING CODE 3510-22-P