83 FR 12338 - Waiver of Requirements Under Sections 101(a) and 102(a) of the Marine Mammal Protection Act (MMPA) for the Mid-Barataria Sediment Diversion, the Mid-Breton Sound Sediment Diversion, and Calcasieu Ship Channel Salinity Control Measures Projects
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 83, Issue 55 (March 21, 2018)
National Oceanic and Atmospheric Administration
Federal Register Volume 83, Issue 55 (March 21, 2018)
| Page Range | 12338-12340 | |
| FR Document | 2018-05652 |
[Federal Register Volume 83, Number 55 (Wednesday, March 21, 2018)] [Notices] [Pages 12338-12340] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-05652] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG090 Waiver of Requirements Under Sections 101(a) and 102(a) of the Marine Mammal Protection Act (MMPA) for the Mid-Barataria Sediment Diversion, the Mid-Breton Sound Sediment Diversion, and Calcasieu Ship Channel Salinity Control Measures Projects AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of a waiver. ----------------------------------------------------------------------- SUMMARY: On February 9, 2018, Congress passed the Bipartisan Budget Act of 2018 (Budget Act), which included a requirement that the Secretary of Commerce, as delegated to the Assistant Administrator of the National Marine Fisheries Service (NMFS), issue a waiver of the Marine Mammal Protection Act (MMPA) moratorium and prohibitions for the Mid- Barataria Sediment Diversion, Mid-Breton Sound Sediment Diversion, and the Calcasieu Ship Channel Salinity Control Measures projects, as selected in the Louisiana Comprehensive Master Plan for a Sustainable Coast. NMFS has issued the waiver. DATES: The waiver was issued on March 15, 2018. FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected Resources, NMFS, (301) 427-8401. The waiver and supporting documents may be obtained online at https://www.fisheries.noaa.gov/action/marine-mammal-protection-act-waiver-select-louisiana-coastal-master-plan-projects. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: Background Section 101(a) of the MMPA (16 U.S.C. 1361 et seq.) establishes a moratorium on the taking and importation of marine mammals, along with exceptions to the moratorium. Section 102(a) of the MMPA prohibits, among other things, the taking of marine mammals and includes further exceptions to the prohibitions in certain circumstances. The MMPA defines the term ``take'' to mean to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Section 101(a)(3)(A) allows the Secretary of Commerce, as delegated to NMFS, to waive the requirements of section 101 and allow the taking of marine mammals under sections 101(a) and 102(a), provided consultation with the Marine Mammal Commission occurs and certain determinations are made. On February 9, 2018, the Budget Act (Pub. L. 115-123) was enacted by Congress. Section 20201 in title II of the Budget Act directs the Secretary of Commerce to, within 120 days of enactment, issue a waiver pursuant to section 20201 and section 101(a)(3) of the MMPA for three projects included in the 2017 Louisiana Comprehensive Master Plan for a Sustainable Coast. Specifically, in Congress' recognition of their consistency with the findings and policy declarations in section 2(6) of the MMPA, the Budget Act directs the Secretary to issue a waiver for the Mid-Barataria Sediment Diversion, the Mid-Breton Sound Sediment Diversion, and the Calcasieu Ship Channel Salinity Control Measures projects from the requirements of sections 101(a) and 102(a) of the MMPA for the duration of the construction, operation, and maintenance of the projects. The Budget Act further indicates that no [[Page 12339]] rulemaking, permit, determination, or other condition or limitation shall be required when issuing the waiver. Although section 101(a)(3)(A) of the MMPA requires the agency to make certain findings and determinations and follow certain procedures when issuing a waiver, Congress removed NMFS's discretion under section 101(a)(3)(A) to make those findings and determinations and to follow those procedures to determine whether waiver of the take moratorium is warranted. Section 20201 of the Budget Act further indicates that, upon the issuance of the waiver, the State of Louisiana (State) shall, in consultation with the Secretary of Commerce: (1) To the extent practicable and consistent with the purposes of the projects, minimize impacts on marine mammal species and population stocks, and (2) Monitor and evaluate the impacts of the projects on such species and population stocks. Description of the Action On March 15, 2018, NMFS issued the waiver from the requirements of the MMPA section 101(a) moratorium and section 102 prohibitions for take caused by the Mid-Barataria Sediment Diversion, Mid-Breton Sound Sediment Diversion and Calcasieu Ship Channel Salinity Control Measures projects, as identified in the 2017 Louisiana Comprehensive Master Plan for a Sustainable Coast, as required by the Budget Act. The waiver applies to take caused by construction, operation, and maintenance and remains in effect for the duration of these activities for the three projects. Take that is not caused by the construction, operation, and maintenance of the projects is not covered by the waiver. Prior to issuing the waiver, NMFS consulted with the Marine Mammal Commission (Commission) on issuance of the waiver, as required under section 101(a)(3)(A) of the MMPA. On March 12, 2018, the Commission provided the following comments and recommendations (the Commission's letter can be found at https://www.fisheries.noaa.gov/action/marine-mammal-protection-act-waiver-select-louisiana-coastal-master-plan-projects). Comments and Responses Comment 1: The Commission notes Section 20201 of the Budget Act includes a finding that the three identified projects are consistent with the findings and policy declarations in section 2(6) of the MMPA. They note, however, that it is unclear if the projects are consistent with other stated purposes and policies of the MMPA, including maintaining marine mammal species and stocks at optimum sustainable population levels and ensuring that species and stocks do not diminish to the point where they cease to be significant functioning elements in the ecosystems of which they are a part. NMFS Response: NMFS has no comment regarding Congress' interpretation of the consistency of these projects with different sections of the MMPA. Comment 2: The Commission recommends that the waiver indicate waiver recipients. NMFS Response: Congress did not identify specific recipients who should be covered by the waiver. Rather, Congress directed that the waiver should cover all persons (as defined under the MMPA) who will engage in the activities of constructing, operating, and maintaining the three named diversion projects. Therefore, unlike issuance of a typical permit, authorization, or waiver under the MMPA, this waiver applies to any individual or entity that causes the take of marine mammals during construction, operation, or maintenance of the three projects. In fact, it would not be possible for NMFS to identify all individuals and entities who will engage in these activities, especially for projects in the early planning stages or for long-term maintenance. Comment 3: The Commission recommends that NMFS seek agreement with the State or otherwise clarify that the requirements of section 20201(b) are ongoing responsibilities with consultations between the State and NMFS continuing as needed throughout all construction, operations, and maintenance activities. NMFS Response: NMFS agrees consultation regarding impact minimization, monitoring, and evaluation should be ongoing as each project develops through design and engineering, construction, operation, and maintenance phases. It is ultimately the State's responsibility to engage in consultation with NMFS and, upon doing so, NMFS will work with the State to develop clear consultation expectations in accordance with the intent of the Budget Act. NMFS anticipates the State will utilize existing environmental review processes (e.g., National Environmental Policy Act (NEPA)), where available, to both begin consultation and develop an approach for ongoing consultation through the various phases for each project. Comment 4: The Commission recommends that consultations between NMFS and the State begin immediately to review ongoing monitoring programs and update and expand them, as necessary, to ensure that essential baseline information is available before construction begins. Further, the Commission encourages NMFS to seek the advice of appropriate outside experts in helping to design effective monitoring programs. NMFS Response: For the Mid-Barataria Sediment Diversion, NMFS is a cooperating agency on the project's Environmental Impact Statement (EIS) under NEPA and a member of the Louisiana Trustees. Through these roles, NMFS has been and will continue to evaluate impacts of the project on marine mammals and continue to work with the State on marine mammal monitoring. For example, NMFS, in cooperation with the State's Coastal Protection and Restoration Authority (CPRA), has developed a marine mammal science plan which includes the collection of baseline data on Barataria Bay dolphins through tagging, health assessments, and modeling. This plan was developed with internal and external marine mammal experts, as recommended by the Commission, who led efforts to collect data on Barataria Bay dolphins after the Deepwater Horizon oil spill (e.g., Smith et al., 2017, Well et al., 2017). Phase I of the science plan is partially complete and NMFS is in discussion with the CPRA on funding for Phase II. For all projects, NMFS intends to continue working with external marine mammal experts to inform development and implementation of a comprehensive marine mammal monitoring plan as part of the State's consultation requirement. Minimizing and Monitoring Impacts on Marine Mammals As described above, the Budget Act requires the State, in consultation with the Secretary, to minimize, monitor, and evaluate impacts on marine mammals from the projects included in the waiver. We note here, as recommended by the Commission (see above), that by necessity the consultation will need to be ongoing to appropriately address the evolving project planning and design for the construction, operation, and maintenance phases of these three projects. Currently, for the Mid-Barataria Sediment Diversion, the State and the U.S. Army Corps of Engineers are coordinating closely with NMFS to ensure compliance under multiple statutes other than the MMPA (e.g., NEPA and the Clean Water Act), and further coordinating in consideration of the Mid-Barataria Sediment Diversion pursuant to the Deepwater Horizon restoration planning efforts. These statutes and processes include various [[Page 12340]] requirements to assess, minimize, and/or monitor impacts to different resources, including marine mammals. While the State has coordinated most closely with NMFS on the Mid-Barataria Sediment Diversion to date, it is likely the other two projects covered under the waiver will be similarly coordinated with NMFS to some degree due to the NEPA processes and permitting requirements under other Federal statutes. We believe that in many cases other statutes and processes will provide the State efficient frameworks within which to conduct the required consultation with NMFS, and we will support the State in integrating Budget Act compliance into these processes, discussions, and timelines, as needed. Regardless, NMFS is prepared to support the State in identifying and developing practicable measures to minimize and monitor impacts of the covered projects on marine mammals. Authority: 16 U.S.C. 1361 et seq. Dated: March 15, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. 2018-05652 Filed 3-20-18; 8:45 am] BILLING CODE 3510-22-P
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Disclosure and Public Comment results of this expedited review. These Mid-Barataria Sediment Diversion, Mid-
Commerce will disclose to parties to cash deposit requirements, when Breton Sound Sediment Diversion, and
this proceeding the calculations imposed, shall remain in effect until the Calcasieu Ship Channel Salinity
performed in connection with these further notice. Pursuant to 19 CFR Control Measures projects, as selected in
preliminary results within five days of 351.214(k)(3)(iv), however, if TG Tools the Louisiana Comprehensive Master
publication of this notice.3 Interested has a final estimated net subsidy rate Plan for a Sustainable Coast. NMFS has
parties may submit case briefs within 30 that is zero or de minimis, it will be issued the waiver.
days of publication of these preliminary excluded from the order. DATES: The waiver was issued on March
results and rebuttal briefs no later than This determination is issued and 15, 2018.
five days after the deadline for filing published pursuant to sections 751(a)(1) FOR FURTHER INFORMATION CONTACT: Jolie
case briefs.4 Rebuttal briefs must be and 777(i) of the Act and 19 CFR Harrison, Office of Protected Resources,
limited to issues raised in the case 351.214(h) and (k). NMFS, (301) 427–8401. The waiver and
briefs.5 Parties who submit case or Dated: March 15, 2018. supporting documents may be obtained
rebuttal briefs are requested to submit Gary Taverman, online at https://
with the argument: (1) A statement of Deputy Assistant Secretary for Antidumping www.fisheries.noaa.gov/action/marine-
the issue; (2) a brief summary of the and Countervailing Duty Operations, mammal-protection-act-waiver-select-
argument; and, (3) a table of performing the non-exclusive functions and louisiana-coastal-master-plan-projects.
authorities.6 Pursuant to 19 CFR duties of the Assistant Secretary for In case of problems accessing these
351.310(c), interested parties who wish Enforcement and Compliance. documents, please call the contact listed
to request a hearing must do so within Appendix above.
30 days of publication of these SUPPLEMENTARY INFORMATION:
preliminary results by submitting a List of Topics Discussed in the Preliminary
written request to the Assistant Decision Memorandum Background
Secretary for Enforcement and I. Summary Section 101(a) of the MMPA (16
Compliance, U.S. Department of II. Background
U.S.C. 1361 et seq.) establishes a
Commerce, filed electronically using III. Scope of the Order
IV. Subsidies Valuation moratorium on the taking and
ACCESS. Requests should contain the importation of marine mammals, along
V. Benchmarks and Interest Rates
party’s name, address, and telephone VI. Application of the CVD Law to Imports with exceptions to the moratorium.
number; the number of participants; and from China Section 102(a) of the MMPA prohibits,
a list of the issues to be discussed. If a VII. Use of Facts Otherwise Available and among other things, the taking of marine
request for a hearing is made, we will Adverse Inferences mammals and includes further
inform parties of the scheduled date for VIII. Analysis of Programs exceptions to the prohibitions in certain
the hearing which will be held at the IX. Disclosure and Public Comment circumstances. The MMPA defines the
U.S. Department of Commerce, 1401 X. Conclusion
term ‘‘take’’ to mean to harass, hunt,
Constitution Avenue NW, Washington, [FR Doc. 2018–05709 Filed 3–20–18; 8:45 am] capture, or kill, or attempt to harass,
DC 20230, at a time and location to be BILLING CODE 3510–DS–P hunt, capture, or kill any marine
determined. Parties should confirm by mammal. Section 101(a)(3)(A) allows
telephone the date, time, and location of the Secretary of Commerce, as delegated
the hearing two days before the DEPARTMENT OF COMMERCE to NMFS, to waive the requirements of
scheduled date. section 101 and allow the taking of
Unless the deadline is extended National Oceanic and Atmospheric
Administration marine mammals under sections 101(a)
pursuant to 19 CFR 351.214(h)(i)(2), and 102(a), provided consultation with
Commerce will issue the final results of RIN 0648–XG090 the Marine Mammal Commission occurs
this expedited review, including the and certain determinations are made.
results of its analysis of issues raised in Waiver of Requirements Under On February 9, 2018, the Budget Act
any written briefs, within 90 days after Sections 101(a) and 102(a) of the (Pub. L. 115–123) was enacted by
the date of publication of these Marine Mammal Protection Act (MMPA) Congress. Section 20201 in title II of the
preliminary results. for the Mid-Barataria Sediment Budget Act directs the Secretary of
Cash Deposit Instructions Diversion, the Mid-Breton Sound Commerce to, within 120 days of
Sediment Diversion, and Calcasieu enactment, issue a waiver pursuant to
Pursuant to section 19 CFR Ship Channel Salinity Control
351.214(k)(3)(iii), the final results of this section 20201 and section 101(a)(3) of
Measures Projects the MMPA for three projects included in
expedited review will not be the basis
for the assessment of countervailing AGENCY: National Marine Fisheries the 2017 Louisiana Comprehensive
duties. Upon issuing the final results, Service (NMFS), National Oceanic and Master Plan for a Sustainable Coast.
Commerce intends to instruct Customs Atmospheric Administration (NOAA), Specifically, in Congress’ recognition of
and Border Protection to collect cash Commerce. their consistency with the findings and
deposits of estimated countervailing ACTION: Notice; issuance of a waiver. policy declarations in section 2(6) of the
duties for the companies subject to this MMPA, the Budget Act directs the
expedited review, at the rates shown SUMMARY: On February 9, 2018, Secretary to issue a waiver for the Mid-
above, on shipments of subject Congress passed the Bipartisan Budget Barataria Sediment Diversion, the Mid-
Act of 2018 (Budget Act), which Breton Sound Sediment Diversion, and
sradovich on DSK3GMQ082PROD with NOTICES
merchandise entered, or withdrawn
from warehouse, for consumption on or included a requirement that the the Calcasieu Ship Channel Salinity
after the date of publication of the final Secretary of Commerce, as delegated to Control Measures projects from the
the Assistant Administrator of the requirements of sections 101(a) and
3 See 19 CFR 351.224(b). National Marine Fisheries Service 102(a) of the MMPA for the duration of
4 See 19 CFR 351.309(c)(1)(ii) and (d)(1). (NMFS), issue a waiver of the Marine the construction, operation, and
5 See 19 CFR 351.309(d)(2). Mammal Protection Act (MMPA) maintenance of the projects. The Budget
6 See 19 CFR 351.309(c)(2) and (d)(2). moratorium and prohibitions for the Act further indicates that no
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requirements to assess, minimize, and/ Significant Impact (FONSI), selects a Federal and State agencies act as
or monitor impacts to different restoration strategy that will help trustees on behalf of the public to assess
resources, including marine mammals. prioritize future decisions regarding natural resource injuries and losses and
While the State has coordinated most project selection and funding. Rather to determine the actions required to
closely with NMFS on the Mid-Barataria than selecting specific projects for compensate the public for those injuries
Sediment Diversion to date, it is likely construction, the Trustees evaluated a and losses. OPA further instructs the
the other two projects covered under the suite of restoration techniques and designated trustees to develop and
waiver will be similarly coordinated approaches, for example large-scale implement a plan for the restoration,
with NMFS to some degree due to the diversions or marsh creation, to rehabilitation, replacement, or
NEPA processes and permitting determine how to best support restoring acquisition of the equivalent of the
requirements under other Federal ecosystem-level injuries in the Gulf of injured natural resources under their
statutes. We believe that in many cases Mexico through restoration in the trusteeship, including the loss of use
other statutes and processes will Barataria Basin. This strategic approach and services from those resources from
provide the State efficient frameworks to restoration will allow the Trustees to the time of injury until the time of
within which to conduct the required prioritize projects for further evaluation restoration to baseline (the resource
consultation with NMFS, and we will by the LA TIG. The purpose of this quality and conditions that would exist
support the State in integrating Budget notice is to inform the public of the if the spill had not occurred) is
Act compliance into these processes, availability of the Final SRP/EA and complete.
discussions, and timelines, as needed. FONSI. The DWH Trustees are:
Regardless, NMFS is prepared to ADDRESSES: Obtaining Documents: You • U.S. Department of the Interior, as
support the State in identifying and may download the Final SRP/EA and represented by the National Park
developing practicable measures to FONSI at: http://www.gulfspill Service, U.S. Fish and Wildlife Service,
minimize and monitor impacts of the restoration.noaa.gov and http://www.la- and Bureau of Land Management;
covered projects on marine mammals. dwh.com. Alternatively, you may • National Oceanic and Atmospheric
request a CD of the Final SRP/EA and Administration, on behalf of the U.S.
Authority: 16 U.S.C. 1361 et seq.
FONSI (see FOR FURTHER INFORMATION Department of Commerce;
Dated: March 15, 2018.
CONTACT). In addition, you may view the
• U.S. Department of Agriculture;
Samuel D. Rauch, III, • U.S. Environmental Protection
document at any of the public facilities
Deputy Assistant Administrator for Agency;
listed at http://www.gulfspill
Regulatory Programs, National Marine • State of Louisiana Coastal
Fisheries Service.
restoration.noaa.gov.
Protection and Restoration Authority,
[FR Doc. 2018–05652 Filed 3–20–18; 8:45 am] FOR FURTHER INFORMATION CONTACT: Oil Spill Coordinator’s Office,
BILLING CODE 3510–22–P
• National Oceanic and Atmospheric Department of Environmental Quality,
Administration—Mel Landry, Department of Wildlife and Fisheries,
gulfspill.restoration@noaa.gov, (301) and Department of Natural Resources;
DEPARTMENT OF COMMERCE 427–8711. • State of Mississippi Department of
• Louisiana—Joann Hicks, Environmental Quality;
National Oceanic and Atmospheric LATIGPublicComments@la.gov, (225) • State of Alabama Department of
Administration 342–7308. Conservation and Natural Resources and
SUPPLEMENTARY INFORMATION: Geological Survey of Alabama;
RIN 0648–XE201
Introduction • State of Florida Department of
Notice of Availability of the Deepwater Environmental Protection and Fish and
Horizon Oil Spill Louisiana Trustee On April 20, 2010, the mobile Wildlife Conservation Commission; and
Implementation Group Final Strategic offshore drilling unit Deepwater • For the State of Texas, Texas Parks
Restoration Plan and Environmental Horizon, which was being used to drill and Wildlife Department, Texas General
Assessment #3 a well for BP in the Macondo prospect Land Office, and Texas Commission on
(Mississippi Canyon 252–MC252), Environmental Quality.
AGENCY: National Marine Fisheries exploded, caught fire, and subsequently On April 4, 2016, the DWH Trustees
Service (NMFS), National Oceanic and sank in the Gulf of Mexico, resulting in reached and finalized a settlement of
Atmospheric Administration (NOAA), an unprecedented volume of oil and their natural resource damages claims
Department of Commerce. other discharges from the rig and from with BP in a Consent Decree approved
ACTION: Notice of availability. the wellhead on the seabed. The by the U.S. District Court for the Eastern
Deepwater Horizon oil spill is the District of Louisiana. Pursuant to that
SUMMARY: In accordance with the Oil largest maritime oil spill in United Consent Decree, restoration projects in
Pollution Act of 1990 (OPA), the States history, discharging millions of the Louisiana Restoration Area are now
National Environmental Policy Act barrels of oil over a period of 87 days. chosen and managed by the LA TIG.
(NEPA), and a Consent Decree with BP In addition, well over one million The LA TIG is comprised of the
Exploration & Production Inc. (BP), the gallons of dispersants were applied to following DWH Trustees:
Deepwater Horizon Federal and State the waters of the spill area in an attempt • State of Louisiana Coastal
natural resource trustee agencies for the to disperse the spilled oil. An Protection and Restoration Authority
Louisiana Trustee Implementation undetermined amount of natural gas (CPRA);
Group (LA TIG) have prepared the Final • Louisiana Oil Spill Coordinator’s
sradovich on DSK3GMQ082PROD with NOTICES
also was released to the environment as
Strategic Restoration Plan and a result of the spill. Office (LOSCO);
Environmental Assessment #3: The Deepwater Horizon Federal and • Louisiana Department of
Restoration of Wetlands, Coastal, and State natural resource trustees (DWH Environmental Quality (LDEQ);
Nearshore Habitats in the Barataria Trustees) conducted the NRDA for the • Louisiana Department of Wildlife
Basin, Louisiana (SRP/EA). The Final Deepwater Horizon oil spill under the and Fisheries (LDWF);
SRP/EA identifies and, in conjunction Oil Pollution Act of 1990 (OPA; 33 • Louisiana Department of Natural
with the associated Finding of No U.S.C. 2701 et seq.). Pursuant to OPA, Resources (LDNR);
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Document Created: 2018-03-21 00:45:54
Document Modified: 2018-03-21 00:45:54
| 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; issuance of a waiver. | |
| Dates | The waiver was issued on March 15, 2018. | |
| Contact | Jolie Harrison, Office of Protected Resources, NMFS, (301) 427-8401. The waiver and supporting documents may be obtained online at https://www.fisheries.noaa.gov/action/marine- mammal-protection-act-waiver-select-louisiana-coastal-master-plan- projects. In case of problems accessing these documents, please call the contact listed above. | |
| FR Citation | 83 FR 12338 | |
| RIN Number | 0648-XG09 |
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