[Federal Register Volume 68, Number 88 (Wednesday, May 7, 2003)]
[Notices]
[Pages 24440-24443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11377]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D.121902A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Installation of a New Floating Dock at the U.S. Coast Guard Pier, 
Monterey, CA

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

ACTION: Notice of issuance of an incidental harassment authorization.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) has been issued to the United States 
Coast Guard (USCG) to take small numbers of California sea lions and 
possibly Pacific harbor seals by harassment incidental to the 
installation of a new floating dock at 100 Lighthouse Avenue in the 
city and county of Monterey, CA.

DATES: This authorization is effective from April 30, 2003, through 
April 29, 2004.

ADDRESSES: A copy of the application may be obtained by writing to 
Christina Fahy, Protected Species Division, National Marine Fisheries 
Service - Southwest Regional Office, 501 West Ocean Boulevard, Suite 
4200, Long Beach, CA 90802-4213, or by telephoning the contact listed 
here.

FOR FURTHER INFORMATION CONTACT: Christina Fahy, Southwest Regional 
Office, NMFS, (562) 980-4023 or Kimberly Skrupky, Office of Protected 
Resources, NMFS, (301) 713-1401 x163.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) and (D) 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 marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    Permission may 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 subsistence uses and that the permissible methods of 
taking and requirements pertaining to the monitoring and reporting of 
such takings are set forth. NMFS has defined ``negligible impact'' in 
50 CFR 216.103 as
    an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.
    Subsection 101(a)(5)(D) of the MMPA established an expedited 
process by which citizens of the United States can apply for an 
authorization to incidentally take small numbers of marine mammals by 
harassment. The MMPA defines ``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [``Level A harassment'']; or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[``Level B harassment''].
    Subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Summary of Request

    On August 16, 2002, NMFS received a letter and application from the 
USCG, requesting an IHA for the possible harassment of small numbers of 
California sea lions (Zalophus californianus) and Pacific harbor seals 
(Phoca vitulina), incidental to the installation of a new floating dock 
in Monterey, CA.
    The installation of a new floating dock is needed to provide better 
and safer access to an 87 ft (26.6 m) Coastal Patrol Boat,USCGC 
Hawksbill (Hawksbill). Currently, the Hawksbill moors at a fixed wharf 
which does not meet the USCG's minimum standards for mooring a patrol 
boat. The tidal range causes severe chafing to the mooring lines and 
difficulties with the access gangway. The Coast Guard estimates that 
the cost of mooring line replacement is approximately $10,000 a year. 
When the patrol boat is at the dock, a crewmember is required to be 
continually present to adjust mooring lines and the gangway about every 
40 minutes. The Hawksbill has a 10-person crew, which is not designed 
to have one person awake the entire night while in port. Finally, 
several locally produced gangways, mounted from the wharf, have failed 
to give adequate access to the Hawksbill during the entire tidal cycle. 
The installation of a floating dock will eliminate the excessive cost 
to mooring lines and gangway replacement and any unnecessary burden on 
the crew.

Comments and Responses

    A notice of receipt of the application and proposed authorization 
was published on February 6, 2003 (68 FR 6116), and a 30-day public 
comment period was provided on the application and proposed 
authorization. The only comments received were from the Marine Mammal 
Commission (Commission). They stated,
    The Commission concurs with the Service's preliminary 
determination of the short-term impact of conducting the proposed 
activities will result, at most, in a temporary modification in 
behavior, including temporarily vacating haulout areas, by 
California sea lions and Pacific harbor seals, and, as such, is 
expected to have a negligible impact on the animals. The Commission 
also concurs that the mitigation measures proposed by the applicant 
and the monitoring that would be required by the Service appear to 
be adequate to ensure that the planned activities will not result in 
the mortality or serious injury of any marine mammal. The Commission 
therefore recommends that the requested incidental harassment 
authorization be issued, provided

[[Page 24441]]

that the Service is satisfied that the monitoring and mitigation 
programs will be carried out as described in the application and in 
the Service's Federal Register notice. The Service should also 
advise the Coast Guard that California sea otters inhabit waters in 
Monterey area and that an incidental taking authorization from the 
Fish and Wildlife Service to cover this species may also be needed.
    On October 19, 2001, the USCG requested consultation from the U.S. 
Fish and Wildlife Service (FWS) on the southern sea otter (Enhydra 
lutris nereis) and the brown pelican (Pelacanus occidentalis). FWS 
responded on December 21, 2001, stating, ``Based on the information 
provided in the concurrence request, and given the full implementation 
of the avoidance measure contained in this request, we concur with your 
determination that the project is not likely to adversely affect the 
southern sea otter and the brown pelican. Consequently, further 
consultation pursuant to section 7(a)(2) of the Endangered Species Act 
of 1973, as amended, is not required.''

Description of Habitat and Marine Mammals Affected by the Activity

    A description of the Monterey Bay ecosystem and its associated 
marine mammals can be found in the USCG application (USCG 2002).

Marine Mammals

    General information on California sea lions, harbor seals and other 
marine mammal species found in central California waters can be found 
in Caretta et al. (2001) which is available at: http://www.nmfs.noaa.gov/prot_res/readingrm/MMSARS/2002PacificSARs.pdf
    The marine mammals likely to be found in the project area are 
limited to the California sea lion and harbor seal. The California sea 
lion primarily uses the central California area to feed during the non-
breeding season. California sea lions are regularly observed in the 
Monterey Harbor area in the autumn, winter, and into the early spring. 
They regularly haul out on the USCG Jetty. No pupping occurs in the 
project area.
    A small number of harbor seals are also expected to be found in the 
project area. Harbor seals are distributed throughout the west coast of 
California. In Monterey Harbor, harbor seals haul out on a rocky 
outcropping located approximately 300 m (984 ft) inshore of the 
proposed project site. Harbor seals do not pup at this site, although 
several pupping sites are located around the Monterey Peninsula within 
3 to 20 km (1.9 to 12.4 mi) of the project site.

Potential Effects on Marine Mammals

    It is possible that California sea lions and harbor seals swimming 
in the project vicinity during pile driving may be subject to elevated 
sound pressure levels that could produce a temporary shift in the 
animal's hearing threshold. Construction and human activity around the 
site could also potentially result in behavioral changes in nearby 
pinnipeds. California sea lions and harbor seals may temporarily cease 
normal activities, such as feeding, or pop their heads up above water 
in response to the noise. They may also be curious and choose to 
investigate the project site. However, existing evidence shows that 
most marine mammals tend to avoid loud noises and will likely move away 
from the project site (Richardson et al., 1995). Disturbance from these 
activities is expected to have a short-term negligible impact to a 
number of sea lions and harbor seals. These disturbances will be 
reduced to the lowest level practicable by implementation of the 
proposed work restrictions and mitigation measures (see Mitigation).
    During the installation of the floating dock, California sea lion 
incidental harassment is expected to occur on a daily basis upon 
initiation of the pile driving. Sea lions are also likely to be 
initially harassed by the barge tender moving the barge into place. If 
the animals no longer perceive construction noise and activity as being 
threatening, they are likely to resume their regular hauling out 
behavior. The number of sea lions disturbed will vary daily, but 
animals in the water near the project site or hauled out closest to the 
project site are more likely to be disturbed than animals hauled out at 
the farther end of the jetty. Based on past ground surveys, the number 
of California sea lions that may potentially be harassed could range 
from 200 to 400, and possibly as many as 600 animals may move each day 
as a result of the project activities.
    Whether harbor seals, reacting to construction noise and associated 
activity, will move away from the rock outcropping is unknown. While 
seals are generally thought to be less tolerant of human activities 
than sea lions, the location of their haulout from the project site may 
be far enough away that disturbances may be less likely. Seals that are 
swimming near the project site may be harassed during construction 
activity, especially pile driving, and may swim away from the immediate 
area. Less than 20 harbor seals are expected to use the rocky 
outcroppings within the Monterey harbor during the project period. 
During aerial surveys from 1997 to 1999, the maximum number of harbor 
seals recorded on the rocky outcropping within the Monterey harbor was 
15 animals.

Potential Effect on Habitat

    The activity will take place on a part of the Monterey USCG pier 
that is not used directly by any marine mammal species. Short-term 
impacts of the activities are expected to result in a temporary 
reduction in utilization of the rock jetty at the end of the USCG pier 
by California sea lions and perhaps of the nearby rocky outcropping by 
Pacific harbor seals while work is in progress or until pinnipeds 
acclimate to the disturbance. This will not likely result in any 
permanent reduction in the number of sea lions or seals at these 
haulouts. Sea lions are regularly disturbed by boats and human 
activities in Monterey Harbor. In addition, approximately 4-5 m (13.1-
16.4 ft) above the harbor seal haul-out, there is a busy bike path and 
pedestrian walkway. Seals are frequently disturbed year-round due to 
their proximity to the bike path, particularly during the daytime. The 
abandonment of either haulout is not anticipated since existing foot 
traffic, commercial and recreational boating, and human activity 
currently occurring within the area have not caused long-term 
abandonment.
    Therefore, other than the potential, short-term abandonment by 
California sea lions and harbor seals of part of their existing 
haulouts in Monterey Harbor during floating dock installation, no 
impact on the habitat or food sources of marine mammals are likely from 
this project.

Mitigation

    Several mitigation measures to reduce the potential for harassment 
from installation of the floating dock will be implemented by USCG as 
part of their activity. General restrictions are as follows: the work 
will be performed during daylight hours only so that potential impacts 
can be detected more easily and steps can be taken to avoid them; 
shouting, loud noises, fast movements, and other activities that would 
disturb the haul-out sites will be minimized (considering human safety 
concerns foremost); the number of people and the amount of equipment on 
the USCG pier in close proximity to the sea lion haulout will be 
restricted to the minimum required to effectively perform the work; all 
equipment will be kept on the west side of the USCG pier and, as much 
as possible, out of sight of the sea lion haulout site; a NMFS-approved 
biological monitor will be on site at all times during the project

[[Page 24442]]

operations to monitor marine mammal disturbances and to advise 
personnel on ways to minimize or avoid disturbances.
    General restrictions during pile driving will include: no piles 
will be driven between the hours of 5 p.m. and 8 a.m. Based on a 
recommendation from NMFS, the USCG will avoid exposing pinnipeds to 
unsafe noise levels (190 dB re 1 microPascal-m). Given the acoustic 
monitoring from pile driving exercises for the Noyo River Bridge, the 
USCG will establish an initial safety zone of 50 m (164.0 ft) around 
the pile-driving site. The marine mammal monitor will scan the safety 
zone for 5 minutes continuously just prior to pile driving to determine 
whether marine mammals are present. Pile driving will not begin until 
the safety zone is clear. If an animal is in the safety zone before 
initiation of the pile driving activity on any given work day, 
operations will be delayed until the animal has moved a safe distance 
away. If an animal enters the safety zone while pile driving is 
occurring, operations will be stopped immediately until the animal has 
moved beyond the range of the safety zone. In consultation with NMFS, 
the safety zone may be increased if animals beyond 50 m (164.0 ft) show 
excessive behavioral changes in response to pile driving operations. If 
pile driving stops for less than 45 minutes, another 5-minute scan will 
not be necessary; if it stops for longer than 45 minutes, another scan 
will be performed.
    In order to provide further protection to pinnipeds hauled out near 
the project area, the USCG will also ``dry fire'' the hammer prior to 
operating at full capacity. A ``dry fire'' occurs when the hammer is 
raised and dropped with no compression of the pistons, an action which 
produces approximately 50 percent of the maximum in-air noise level, or 
45-55 dB (re 20 microPascal-m). This dry-firing should allow pinnipeds 
in the area to voluntarily move from the area and should expose fewer 
animals to loud sounds both underwater and above water.

Monitoring

    NMFS will require the USCG to monitor the impact of the floating 
dock installation activities on California sea lions and harbor seals 
in Monterey Harbor. Monitoring will be conducted by one or more NMFS-
approved monitors.
    In general, the marine mammal monitor(s) will record the date and 
time of arrival and departure of the monitor and work crew. The monitor 
will also conduct counts of sea lions on the jetty and counts of 
pinnipeds in the water near the project site every hour, commencing one 
hour before the start of project activity each day and ending 15 
minutes after all project activities have ceased. Data on size classes 
and sex (when possible) of sea lions on the jetty will be collected. 
Counts of harbor seals will be obtained at the beginning and the end of 
each work day. If possible, data on size class and sex of animals will 
be collected. The monitor(s) will also collect information on 
disturbance reactions, including the number of animals disturbed and 
the source (including type, location, timing, and duration of 
disturbance). The monitor will also record environmental conditions, 
including date, time, cloud cover, visibility, wind direction and 
velocity, swell direction and height, and tides.
    During pile driving operations, the monitor will monitor the 50-
meter safety zone, as described above (see Mitigation). The safety zone 
will be marked with temporary buoys in order to facilitate monitoring 
efforts.

Reporting

    The USCG will provide weekly reports to the Southwest Regional 
Administrator (Regional Administrator), NMFS, including a summary of 
the previous week's monitoring activities and an estimate of the number 
of California sea lions and harbor seals that may have been disturbed 
as a result of floating dock installation activities. These reports 
will include data collected during daily monitoring.
    A draft report must be submitted to the Regional Administrator 
within 60 days after the conclusion of the project. A final report must 
be submitted to the Regional Administrator within 30 days after 
receiving comments from the Regional Administrator on the draft final 
report. If no comments are received from NMFS, the draft report will be 
considered to be the final report.

Endangered Species Act

    Under section 7 of the Endangered Species Act, NMFS has determined 
that there will be no effect on listed species under NMFS jurisdiction. 
In addition, the USCG requested consultation with the FWS on October 
19, 2001, for the southern sea otter and the brown pelican. The FWS 
concurred with the determination that the proposed installation of a 
floating dock at the U.S. Government Breakwater, Sation Monterey, is 
not likely to adversely affect the southern sea otter or the brown 
pelican.

National Environmental Policy Act

    In conjunction with the promulgation of regulations implementing 
section 101(a)(5)(D) of the MMPA, NMFS completed an Environmental 
Assessment (EA) on May 9, 1995, that addressed the impacts on the human 
environment from the issuance of IHAs and the alternatives to that 
action. NMFS' analysis resulted in a Finding of No Significant Impact 
(FONSI). In addition, this proposed action, including pile driving, 
will use pile driving equipment that is less intense and will, 
therefore, have a lower impact on the marine environment than pile 
driving equipment used in other surveys for which EAs and resulting 
FONSIs have been prepared previously. This IHA also qualifies for a 
categorical exclusion under NOAA Administrative Order 216-6. Therefore, 
a new EA is not required and a new one will not be prepared.

Conclusions

    NMFS has determined that the short-term impact of the floating dock 
installation, as described in this document and in USCG (2002), should 
result, at worst, in the temporary modification in behavior by 
California sea lions and Pacific harbor seals. While behavioral 
modifications, including temporarily vacating the haulout, may be made 
by these species to avoid the resultant visual and acoustic 
disturbance, this action is expected to have a negligible impact on the 
animals. In addition, no take by injury or by death is anticipated, and 
harassment takes will be at the lowest level practicable due to the 
incorporation of the mitigation measures mentioned previously in this 
document.
    Since NMFS is assured that the taking would not result in more than 
the incidental harassment of small numbers of California sea lions and 
Pacific harbor seals or would not have an unmitigatable adverse impact 
on the availability of these stocks for subsistence uses and would 
result in the least practicable impact on the stocks, NMFS has 
determined that the requirements of section 101(a)(5)(D) have been met 
and the authorization can be issued. For the above reasons, NMFS has 
issued an IHA for a 1-year period beginning on the date noted above 
(see DATES) for the incidental harassment of California sea lions and 
harbor seals by the installation of a floating dock in Monterey, 
California, provided the above mentioned monitoring and reporting 
requirements are incorporated.


[[Page 24443]]


    Dated: Apr 30, 2003.
Laurie K. Allen,
Acting Office Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-11377 Filed 5-6-03; 8:45 am]
BILLING CODE 3510-22-S