81 FR 80644 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the Elliot Bay Seawall Project in Seattle, Washington
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 81, Issue 221 (November 16, 2016)
National Oceanic and Atmospheric Administration
Federal Register Volume 81, Issue 221 (November 16, 2016)
| Page Range | 80644-80645 | |
| FR Document | 2016-27464 |
[Federal Register Volume 81, Number 221 (Wednesday, November 16, 2016)] [Notices] [Pages 80644-80645] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-27464] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-BC69 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to the Elliot Bay Seawall Project in Seattle, Washington AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of issuance of a Letter of Authorization. ----------------------------------------------------------------------- SUMMARY: In accordance with regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that a Letter of Authorization (LOA) has been issued to the City of Seattle's Department of Transportation (SDOT) for the take of eight species of marine mammals incidental to pile driving activities associated with the Elliot Bay Seawall Project (EBSP). DATES: Effective for a period of one year from November 16, 2016. ADDRESSES: The LOA and supporting documentation are available for review online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours at the Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, by telephoning the contact listed below. FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected Resources, NMFS, 301-427-8401. SUPPLEMENTARY INFORMATION: Background Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 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 regulations are issued. Under the MMPA, the term ``take'' means to harass, hunt, capture, or kill marine mammals. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the identified 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 in the regulations. 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.'' Regulations governing the taking of harbor seals (Phoca vitulina richardii), California sea lions (Zalophus californianus), Steller sea lions (Eumetopias jubatus monteriensis), harbor porpoise (Phocoena phocoena vomerina), Dall's porpoise (Phocoenoides dalli dalli), southern resident and transient killer whales (Orcinus orca), gray whales (Eschrichtius robustus), and humpback whales (Megaptera novaeangliae), by harassment, incidental to pile driving activities in Elliot Bay for the EBSP, were issued on October 21, 2013, and remain in effect until October 21, 2018. The regulations include mitigation, monitoring, and reporting requirements for the incidental take of marine mammals during pile driving activities associated with the EBSP. For detailed information on this action, please refer to the Federal Register Notice for the regulations at 78 FR 63396 (October 24, 2013). Pursuant to those regulations, NMFS issued an LOA, effective from October 22, 2013, through October 21, 2014, a second LOA, effective from October 22, 2014, through October 21, 2015, and a third LOA, effective October 22, 2015, through August 31, 2016. SDOT conducted activities as described, implemented the required mitigation methods, and conducted the required monitoring. NMFS announces here that it has issued a fourth LOA, effective for one year, beginning November 16, 2016. Monitoring Reports According to prior monitoring reports, no marine mammals entered the Level A harassment zone during the first year of the project (2013- 2014 LOA). Two marine mammals entered the Level A harassment zone during the second year (2014-2015 LOA), but work was stopped or not initiated until the animal left the Level A harassment zone. Six killer whales were observed in the Level A harassment zone during the third year of the project (2015-2016 LOA), but pile activity was not occurring at the time. Low-frequency cetaceans (e.g., humpback whales, gray whales) have rarely been observed during the past three years of this project (one humpback in the 2015-2016 LOA and the 2014-2015 LOA). No gray whales have been observed. Low numbers of high- and mid- frequency cetaceans (e.g., harbor porpoise and killer whales, respectively) have been observed within the Level A harassment zone, but only one animal of each species was documented as take (Level B harassment) during the 2015-2016 LOA, significantly below the maximum number of takes authorized per year (40 and 315, respectively). There were no observed takes of harbor porpoises or killer whales in the 2014-2015 LOA or the 2013-2014 LOA. Pinnipeds are more likely to be present in the construction area and to approach more closely. However, California sea lions (the pinniped species with the most documented takes), rested on the mooring buoys during construction and throughout the entire monitoring period on most days. These mooring buoys are well outside the SDOT's Level A harassment zones (under NMFS' then-current thresholds) for all pinnipeds and occur approximately two miles from these zones. The total number of potentially harassed marine mammals was well below the authorized limits, with the exception of the California sea lion in the 2014-2015 LOA (Year 2 LOA). The reported take for California sea lions for the Year 2 LOA by Level B harassment only, exceeded the annually authorized level, and slightly exceeded the authorized level in the Year 1 LOA, but not in the 2015-2016 LOA (Year 3 LOA). Please see the monitoring reports at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm for more detail. The exceeded take in the Year 2 LOA resulted in part because of an error in our assumptions relating to the proposed take estimates in the rule, i.e., the number of California sea lions regularly hauling out on buoys in Elliot Bay. Analysis Based on our review of monitoring to date, we revised take estimates by assuming an estimated daily exposure of up to seven California sea lions (as compared with five assumed in regulations). [[Page 80645]] This revised estimate of take constitutes 0.14 percent of the population of California sea lions, which is 0.09 percent greater than the estimated take in the rule, and is the same kind of take anticipated in the regulations. Accordingly, the anticipated taking remains consistent with the basis for our final rule determinations of negligible impact based on the total taking and of small numbers, and our subsistence findings for the specified activity. Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing In August 2016, NMFS released its Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance), which established new thresholds for predicting auditory injury, which equates to Level A harassment under the MMPA. In the August 4, 2016, Federal Register notice announcing the Guidance (81 FR 51694), NMFS explained the approach it would take during a transition period, wherein we balance the need to consider this new best available science with the fact that some applicants have already committed time and resources to the development of acoustic analyses based on our previous thresholds and have constraints that preclude the recalculation of take estimates, as well as consideration of where the agency is in the decision-making pipeline. In that notice, we included a non-exhaustive list of factors that would inform the most appropriate approach for considering the new Guidance, including: How far in the MMPA process the applicant has progressed; the scope of the effects; when the authorization is needed; the cost and complexity of the analysis; and the degree to which the Guidance is expected to affect our analysis. In this case, SDOT submitted a timely request for an LOA that was determined to be adequate and complete prior to availability of the Guidance and indicated that they would need to receive their fourth (final) LOA (if issued) by fall 2016. The incidental take rule for SDOT's activities considered the potential for auditory injury to marine mammals, and concluded that injury would be unlikely to occur due to SDOT's mitigation measures and SDOT's observed success of those measures as implemented previously. As described in the preamble of the regulations (78 FR 63396), the SDOT calculated Level A harassment and the Level A harassment mitigation zones on the basis of NMFS' then- current thresholds for onset of P (i.e., 180/190 dB rms) (PTS). Following release of the Guidance, we considered the updated thresholds and found that the distances at which animals might be exposed to injury fall mostly within the mitigation zones, and therefore the likelihood of auditory injury of marine mammals is still low. However, to further reduce the likelihood in light of the Guidance, the SDOT will now implement a 61meter (m) exclusion zone for high frequency cetaceans and a 25 m exclusion zone for pinnipeds (inclusive of both phocids and otariids) during vibratory pile driving, which is larger than the PTS isopleth indicated by the Guidance for otariids. As an addition to their monitoring plan, the SDOT will use Internet sites that track whale activity in Puget Sound prior to and during monitoring shifts in anticipation of any cetacean that may enter the Level A/B harassment zones. In summary, we have considered the new Guidance and believe that the likelihood of injury is adequately addressed in the analysis and appropriate protective measures are in place in the LOA. Authorization NMFS has issued an LOA to SDOT authorizing the Level B harassment of marine mammals incidental to pile driving activities associated with the EBSP at Seattle, WA. Take of marine mammals will be minimized through implementation of the following mitigation measures: (1) Limited impact pile driving; (2) containment of impact pile driving; (3) additional sound attenuation measures; (4) ramp-up of pile-related activities; (5) marine mammal exclusion zones; and (6) shutdown and delay procedures. SDOT will also conduct visual monitoring and underwater acoustic monitoring for mitigation and research purposes. Reports will be submitted to NMFS at the time of request for a renewal of the LOA, and a final comprehensive report, which will summarize all previous reports and assess cumulative impacts, will be submitted before the rule expires. Issuance of this LOA takes into consideration the results of the monitoring reports as well as NMFS' Guidance on hearing impacts from anthropogenic acoustic sources. Based on that information and the information discussed in the rule making for the five-year regulations, the activities described under the LOA and the level of anticipated taking is consistent with the findings made for the total taking allowable under the regulations, the project activities will have a negligible impact on the affected marine mammal species or stocks and will not have an unmitigable adverse impact on their availability for subsistence uses. Dated: November 9, 2016. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2016-27464 Filed 11-15-16; 8:45 am] BILLING CODE 3510-22-P
![80644 Federal Register / Vol. 81, No. 221 / Wednesday, November 16, 2016 / Notices
Peter Cooper at (301) 427–8503 at least regulations are issued. Under the stopped or not initiated until the animal
7 days prior to the meeting. MMPA, the term ‘‘take’’ means to left the Level A harassment zone. Six
Dated: November 9, 2016. harass, hunt, capture, or kill marine killer whales were observed in the Level
Jennifer M. Wallace,
mammals. Authorization for incidental A harassment zone during the third year
takings shall be granted if NMFS finds of the project (2015–2016 LOA), but pile
Acting Director, Office of Sustainable
that the taking will have a negligible activity was not occurring at the time.
Fisheries, National Marine Fisheries Service.
impact on the identified species or Low-frequency cetaceans (e.g.,
[FR Doc. 2016–27473 Filed 11–15–16; 8:45 am]
stock(s), will not have an unmitigable humpback whales, gray whales) have
BILLING CODE 3510–22–P
adverse impact on the availability of the rarely been observed during the past
species or stock(s) for subsistence uses three years of this project (one
(where relevant), and if the permissible humpback in the 2015–2016 LOA and
DEPARTMENT OF COMMERCE
methods of taking and requirements the 2014–2015 LOA). No gray whales
National Oceanic and Atmospheric pertaining to the mitigation, monitoring, have been observed. Low numbers of
Administration and reporting of such takings are set high- and mid-frequency cetaceans (e.g.,
forth in the regulations. NMFS has harbor porpoise and killer whales,
RIN 0648–BC69 defined ‘‘negligible impact’’ in 50 CFR respectively) have been observed within
216.103 as ‘‘. . . an impact resulting the Level A harassment zone, but only
Taking and Importing Marine from the specified activity that cannot one animal of each species was
Mammals; Taking Marine Mammals be reasonably expected to, and is not documented as take (Level B
Incidental to the Elliot Bay Seawall reasonably likely to, adversely affect the harassment) during the 2015–2016 LOA,
Project in Seattle, Washington species or stock through effects on significantly below the maximum
AGENCY: National Marine Fisheries annual rates of recruitment or survival.’’ number of takes authorized per year (40
Service (NMFS), National Oceanic and Regulations governing the taking of and 315, respectively). There were no
Atmospheric Administration (NOAA), harbor seals (Phoca vitulina richardii), observed takes of harbor porpoises or
Commerce. California sea lions (Zalophus killer whales in the 2014–2015 LOA or
californianus), Steller sea lions the 2013–2014 LOA.
ACTION: Notice of issuance of a Letter of
(Eumetopias jubatus monteriensis),
Authorization. Pinnipeds are more likely to be
harbor porpoise (Phocoena phocoena
present in the construction area and to
SUMMARY: In accordance with vomerina), Dall’s porpoise
approach more closely. However,
regulations implementing the Marine (Phocoenoides dalli dalli), southern
California sea lions (the pinniped
Mammal Protection Act (MMPA), as resident and transient killer whales
species with the most documented
amended, notification is hereby given (Orcinus orca), gray whales
takes), rested on the mooring buoys
that a Letter of Authorization (LOA) has (Eschrichtius robustus), and humpback
during construction and throughout the
been issued to the City of Seattle’s whales (Megaptera novaeangliae), by
harassment, incidental to pile driving entire monitoring period on most days.
Department of Transportation (SDOT) These mooring buoys are well outside
for the take of eight species of marine activities in Elliot Bay for the EBSP,
were issued on October 21, 2013, and the SDOT’s Level A harassment zones
mammals incidental to pile driving (under NMFS’ then-current thresholds)
activities associated with the Elliot Bay remain in effect until October 21, 2018.
The regulations include mitigation, for all pinnipeds and occur
Seawall Project (EBSP). approximately two miles from these
DATES: Effective for a period of one year
monitoring, and reporting requirements
for the incidental take of marine zones. The total number of potentially
from November 16, 2016. harassed marine mammals was well
mammals during pile driving activities
ADDRESSES: The LOA and supporting below the authorized limits, with the
associated with the EBSP. For detailed
documentation are available for review information on this action, please refer exception of the California sea lion in
online at: www.nmfs.noaa.gov/pr/ to the Federal Register Notice for the the 2014–2015 LOA (Year 2 LOA). The
permits/incidental/construction.htm. regulations at 78 FR 63396 (October 24, reported take for California sea lions for
Documents cited in this notice may also 2013). the Year 2 LOA by Level B harassment
be viewed, by appointment, during Pursuant to those regulations, NMFS only, exceeded the annually authorized
regular business hours at the Office of issued an LOA, effective from October level, and slightly exceeded the
Protected Resources, National Marine 22, 2013, through October 21, 2014, a authorized level in the Year 1 LOA, but
Fisheries Service, 1315 East-West second LOA, effective from October 22, not in the 2015–2016 LOA (Year 3
Highway, Silver Spring, MD 20910– 2014, through October 21, 2015, and a LOA). Please see the monitoring reports
3225, by telephoning the contact listed third LOA, effective October 22, 2015, at http://www.nmfs.noaa.gov/pr/
below. through August 31, 2016. SDOT permits/incidental/construction.htm for
FOR FURTHER INFORMATION CONTACT: conducted activities as described, more detail. The exceeded take in the
Stephanie Egger, Office of Protected implemented the required mitigation Year 2 LOA resulted in part because of
Resources, NMFS, 301–427–8401. methods, and conducted the required an error in our assumptions relating to
SUPPLEMENTARY INFORMATION: monitoring. NMFS announces here that the proposed take estimates in the rule,
it has issued a fourth LOA, effective for i.e., the number of California sea lions
Background regularly hauling out on buoys in Elliot
one year, beginning November 16, 2016.
Section 101(a)(5)(A) of the MMPA (16 Bay.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
U.S.C. 1361 et seq.) directs the Secretary Monitoring Reports
Analysis
of Commerce to allow, upon request, the According to prior monitoring reports,
incidental, but not intentional, taking of no marine mammals entered the Level Based on our review of monitoring to
small numbers of marine mammals by A harassment zone during the first year date, we revised take estimates by
U.S. citizens who engage in a specified of the project (2013–2014 LOA). Two assuming an estimated daily exposure of
activity (other than commercial fishing) marine mammals entered the Level A up to seven California sea lions (as
within a specified geographical region if harassment zone during the second year compared with five assumed in
certain findings are made and (2014–2015 LOA), but work was regulations).
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![Federal Register / Vol. 81, No. 221 / Wednesday, November 16, 2016 / Notices 80645
This revised estimate of take thresholds for onset of P (i.e., 180/190 impact on the affected marine mammal
constitutes 0.14 percent of the dB rms) (PTS). species or stocks and will not have an
population of California sea lions, Following release of the Guidance, we unmitigable adverse impact on their
which is 0.09 percent greater than the considered the updated thresholds and availability for subsistence uses.
estimated take in the rule, and is the found that the distances at which Dated: November 9, 2016.
same kind of take anticipated in the animals might be exposed to injury fall
Donna S. Wieting,
regulations. Accordingly, the mostly within the mitigation zones, and
therefore the likelihood of auditory Director, Office of Protected Resources,
anticipated taking remains consistent
National Marine Fisheries Service.
with the basis for our final rule injury of marine mammals is still low.
However, to further reduce the [FR Doc. 2016–27464 Filed 11–15–16; 8:45 am]
determinations of negligible impact
based on the total taking and of small likelihood in light of the Guidance, the BILLING CODE 3510–22–P
numbers, and our subsistence findings SDOT will now implement a 61meter
for the specified activity. (m) exclusion zone for high frequency
cetaceans and a 25 m exclusion zone for DEPARTMENT OF COMMERCE
Technical Guidance for Assessing the pinnipeds (inclusive of both phocids
Effects of Anthropogenic Sound on National Oceanic and Atmospheric
and otariids) during vibratory pile
Marine Mammal Hearing Administration
driving, which is larger than the PTS
In August 2016, NMFS released its isopleth indicated by the Guidance for Proposed Information Collection;
Technical Guidance for Assessing the otariids. As an addition to their Comment Request; Large Pelagic
Effects of Anthropogenic Sound on monitoring plan, the SDOT will use Fishing Survey
Marine Mammal Hearing (Guidance), Internet sites that track whale activity in
which established new thresholds for Puget Sound prior to and during AGENCY: National Oceanic and
predicting auditory injury, which monitoring shifts in anticipation of any Atmospheric Administration (NOAA),
equates to Level A harassment under the cetacean that may enter the Level A/B Commerce.
MMPA. In the August 4, 2016, Federal harassment zones. In summary, we have ACTION: Notice.
Register notice announcing the considered the new Guidance and
Guidance (81 FR 51694), NMFS believe that the likelihood of injury is SUMMARY: The Department of
explained the approach it would take adequately addressed in the analysis Commerce, as part of its continuing
during a transition period, wherein we and appropriate protective measures are effort to reduce paperwork and
balance the need to consider this new in place in the LOA. respondent burden, invites the general
best available science with the fact that public and other Federal agencies to
some applicants have already Authorization take this opportunity to comment on
committed time and resources to the NMFS has issued an LOA to SDOT proposed and/or continuing information
development of acoustic analyses based authorizing the Level B harassment of collections, as required by the
on our previous thresholds and have marine mammals incidental to pile Paperwork Reduction Act of 1995.
constraints that preclude the driving activities associated with the DATES: Written comments must be
recalculation of take estimates, as well EBSP at Seattle, WA. Take of marine submitted on or before January 17, 2017.
as consideration of where the agency is mammals will be minimized through
ADDRESSES: Direct all written comments
in the decision-making pipeline. In that implementation of the following
to Jennifer Jessup, Departmental
notice, we included a non-exhaustive mitigation measures: (1) Limited impact
pile driving; (2) containment of impact Paperwork Clearance Officer,
list of factors that would inform the
pile driving; (3) additional sound Department of Commerce, Room 6616,
most appropriate approach for
attenuation measures; (4) ramp-up of 14th and Constitution Avenue NW.,
considering the new Guidance,
pile-related activities; (5) marine Washington, DC 20230 (or via the
including: How far in the MMPA
mammal exclusion zones; and (6) Internet at JJessup@doc.gov).
process the applicant has progressed;
the scope of the effects; when the shutdown and delay procedures. SDOT FOR FURTHER INFORMATION CONTACT:
authorization is needed; the cost and will also conduct visual monitoring and Requests for additional information or
complexity of the analysis; and the underwater acoustic monitoring for copies of the information collection
degree to which the Guidance is mitigation and research purposes. instrument and instructions should be
expected to affect our analysis. Reports will be submitted to NMFS at directed to John Foster, (301) 427–8130
In this case, SDOT submitted a timely the time of request for a renewal of the or john.foster@noaa.gov.
request for an LOA that was determined LOA, and a final comprehensive report, SUPPLEMENTARY INFORMATION:
to be adequate and complete prior to which will summarize all previous
availability of the Guidance and I. Abstract
reports and assess cumulative impacts,
indicated that they would need to will be submitted before the rule This request is for extension of a
receive their fourth (final) LOA (if expires. currently approved information
issued) by fall 2016. The incidental take Issuance of this LOA takes into collection. The Large Pelagic Fishing
rule for SDOT’s activities considered the consideration the results of the Survey consists of dockside and
potential for auditory injury to marine monitoring reports as well as NMFS’ telephone surveys of recreational
mammals, and concluded that injury Guidance on hearing impacts from anglers for large pelagic fish (tunas,
would be unlikely to occur due to anthropogenic acoustic sources. Based sharks, and billfish) in the Atlantic
asabaliauskas on DSK3SPTVN1PROD with NOTICES
SDOT’s mitigation measures and on that information and the information Ocean. The survey provides the
SDOT’s observed success of those discussed in the rule making for the National Marine Fisheries Service
measures as implemented previously. five-year regulations, the activities (NMFS) with information to monitor
As described in the preamble of the described under the LOA and the level catch of bluefin tuna, marlin and other
regulations (78 FR 63396), the SDOT of anticipated taking is consistent with federally managed species. Catch
calculated Level A harassment and the the findings made for the total taking monitoring in these fisheries and
Level A harassment mitigation zones on allowable under the regulations, the collection of catch and effort statistics
the basis of NMFS’ then-current project activities will have a negligible for all pelagic fish is required under the
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Document Created: 2016-11-16 00:57:38
Document Modified: 2016-11-16 00:57:38
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of issuance of a Letter of Authorization. | |
| Dates | Effective for a period of one year from November 16, 2016. | |
| Contact | Stephanie Egger, Office of Protected Resources, NMFS, 301-427-8401. | |
| FR Citation | 81 FR 80644 | |
| RIN Number | 0648-BC69 |
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