[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Notices]
[Pages 36527-36532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14494]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC172


Taking of Marine Mammals Incidental to Specified Activities; 
Construction at Bremerton Ferry Terminal

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

ACTION: Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the Washington State 
Department of Transportation (WSDOT) to take, by harassment, small 
numbers of six species of marine mammals incidental to vibratory pile 
driving and pile removal activities at the Bremerton Ferry Terminal in 
Washington State between September 2013 and August 2014.

DATES: Effective September 1, 2013, through August 31, 2014.

ADDRESSES: Requests for information on the incidental take 
authorization should be addressed to P. Michael Payne, Chief, Permits 
and Conservation Division, Office of Protected Resources, National 
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 
20910. A copy of the application containing a list of the references 
used in this document, NMFS' Environmental Assessment (EA), Finding of 
No Significant Impact (FONSI), and the IHA may be obtained by writing 
to the address specified above or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Documents cited in this notice may be viewed, by appointment, 
during regular business hours, at the aforementioned address.

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

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``. . . an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for a one-year authorization to 
incidentally take small numbers of marine mammals by harassment, 
provided that there is no potential for serious injury or mortality to 
result from the activity. Section 101(a)(5)(D) establishes a 45-day 
time limit for NMFS review of an application followed by a 30-day 
public notice and comment period on any proposed authorizations for the 
incidental harassment of marine mammals. Within 45 days of the close of 
the comment period, NMFS must either issue or deny the authorization.

Summary of Request

    On August 14, 2012, WSDOT submitted a request to NOAA requesting an 
IHA for the possible harassment of small numbers of six marine mammal 
species incidental to construction associated with the replacement of 
wingwalls at the Bremerton Ferry Terminal in Washington State. On 
December 4, 2012, WSDOT submitted a revised IHA application. The action 
discussed in this document is based on WSDOT's December 4, 2012, IHA 
application.

Description of the Specified Activity

    Detailed description of the WSDOT's wingwalls replacement work at 
the Bremerton Ferry Terminal is provided in the Federal Register notice 
for the proposed IHA (78 FR 11844; February 20, 2013). Since that time, 
no changes have been made to the wingwalls replacement project at the 
Bremerton Ferry Terminal, except that WSDOT requested the incidental 
take coverage to be extended from February 28, 2014, through August 31, 
2014, in case the project may be postponed. Nevertheless, the amount of 
activity and the duration of actual in-water construction has not 
changed. The potential change in work season will not affect marine 
mammal take estimates since the actual construction duration will not 
change and the initial calculation relied on marine mammal presence in 
the project area on annual basis.
    The details of WSDOT's wingwalls replacement work at Bremerton 
Ferry Terminal are provided in the Federal Register notice for the 
proposed IHA (78 FR 11844; February 20, 2013). Please refer to that 
Federal Register notice for the description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to WSDOT was published 
in the Federal Register on February 20, 2013 (78 FR 11844). That notice 
described, in detail, WSDOT's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission). The Commission 
recommends NMFS issue the IHA to WSDOT, but has asked NMFS to condition 
the IHA in certain respects. Specific comments and responses are 
provided below.
    Comment 1: The Commission requests that NMFS justify its conclusion 
that the taking will involve only a small number of southern resident 
killer whales (SRKWs) and work with the Fish and Wildlife Service and 
the Commission to develop a policy that sets forth the criteria and/or 
thresholds for determining what constitutes ``small numbers'' and 
``negligible impact'' for the purpose of authorizing incidental takes 
of marine mammals
    Response: As stated in the Federal Register for the proposed IHA, 
WSDOT is required to implement shutdown measures if the combined Level 
B takes of SRKWs reach to a total of 16 at the Bremerton Ferry 
Terminal, which is equivalent to approximately 19% of the SRKW 
population. Subsequently, NMFS

[[Page 36528]]

worked with WSDOT on a possible solution to further reduce takes of 
SRKWs. WSDOT agreed that it will take all practical steps to avoid 
exposing SRKWs to sound levels that may result in harassment by 
implementing shutdown measures whenever a SRKW is sighted in the 
vicinity of the project area. In the event a SRKW is not detected 
before entering the zone of influence, NMFS has authorized the take of 
no more than four SRKW, which represents 5% of the existing population. 
As we have done in the past, NMFS will continue to collaborate with the 
Commission and Fish and Wildlife Service on a variety of MMPA issues, 
including small numbers and negligible impact, to strengthen our 
collective understanding of how activities affect marine mammal species 
and stocks.
    Comment 2: The Commission requests NMFS require WSDOT to monitor 
the Level B harassment zone at least 30 minutes before, during, and 30 
minutes after the pile-removal and -driving activities to ensure that 
those activities are not having an unintended effect on marine mammals 
in or near the zone.
    Response: NMFS agrees with the Commission and will require the 
WSDOT to monitor the Level B harassment zone for 30 minutes before, 
during, and 30 minutes after the pile driving and pile removal 
activities.
    Comment 3: The Commission requests NMFS specify in its 
authorization that, after a delay, power down, or shutdown, the Ferries 
Division would not resume activities until the marine mammal (1) is 
observed to have left the Level B harassment zone or (2) has not been 
seen or otherwise detected within the Level B harassment zone for 15 
minutes for small odontocetes and 30 minutes for mysticetes and large 
odontocetes, including killer whales.
    Response: As described in detail in the Federal Register notice for 
the proposed IHA, WSDOT's wingwalls replacement project at the 
Bremerton Ferry Terminal will only use vibratory pile hammer for pile 
driving. Marine mammals are not expected to be injured (Level A 
harassment) by WSDOT's use of vibratory pile hammers, thereby obviating 
the need for an exclusion zone for this activity. Nevertheless, for 
initiation of pile driving and pile removal activities, WSDOT is 
required to monitor the Level B harassment zone for 30 minutes before, 
during, and 30 minutes after in-water construction, and to ramp up 
vibratory hammer for pile removal and pile driving, which will 
effectively reduce any startle behavior of marine mammals in the 
vicinity at the commencement of the piling activity.
    However, WSDOT is required to shutdown when a SRKW is sighted in 
the vicinity of the project area, or the potential takes of any SRKW is 
approaching the allotted take limit. Therefore, under such 
circumstances, NMFS will require that WSDOT not resume activities until 
the killer whale under the above condition (1) is observed to have left 
the Level B harassment zone or (2) has not been seen or otherwise 
detected within the Level B harassment zone 30 minutes after a 
shutdown.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to 
occur in the construction area include Pacific harbor seal (Phoca 
vitulina richardsi), California sea lion (Zalophus californianus), 
Steller sea lion (Eumetopias jubatus), killer whale (Orcinus orca), 
gray whale (Eschrichtius robustus), and humpback whale (Megaptera 
novaeangliae).
    General information on the marine mammal species found in 
California waters can be found in Caretta et al. (2011), which is 
available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2011.pdf. Specific information concerning these species in the 
vicinity of the action area is provided in the Federal Register notice 
for the proposed IHA and in WSDOT's IHA application. Therefore, it is 
not repeated here.

Potential Effects of the Specified Activity on Marine Mammals

    The effects of underwater noise from in-water vibratory pile 
driving and pile removal associated with the construction activities at 
the Bremerton Ferry Terminal has the potential to result in behavioral 
harassment of marine mammal species and stocks in the vicinity of the 
action area. The Notice of Proposed IHA included a discussion of the 
effects of anthropogenic noise on marine mammals, which is not repeated 
here. No instances of hearing threshold shifts, injury, serious injury, 
or mortality are expected as a result of WSDOT's activities given the 
strong likelihood that marine mammals would avoid the immediate 
vicinity of the pile driving area.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammals and other marine 
species are associated with elevated sound levels, but the project may 
also result in additional effects to marine mammal prey species and 
short-term local water turbidity caused by in-water construction due to 
pile removal and pile driving. These potential effects are discussed in 
detail in the Federal Register notice for the proposed IHA and are not 
repeated here.

Potential Impacts on Availability of Affected Species or Stocks for 
Taking for Subsistence Uses

    No subsistence harvest of marine mammals occurs in the action area.

Mitigation Measures

    In order to issue an incidental take authorization under Section 
101(a)(5)(D) of the MMPA, NMFS must prescribe, where applicable, the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse impact on such species 
or stock and its habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance, and on the 
availability of such species or stock for taking for certain 
subsistence uses.
    For WSDOT's wingwalls replacement work at the Bremerton Ferry 
Terminal, NMFS is requiring WSDOT to implement the following mitigation 
measures to minimize the potential impacts to marine mammals in the 
project vicinity as a result of the in-water construction activities.
    Since the measured source levels (at 10 and 16 m) of the vibratory 
hammer involved in pile removal and pile driving are below NMFS' 
current thresholds for Level A takes, i.e., below 180 dB (rms) re 1 
[mu]Pa, no exclusion zone will be established, and there will be no 
required shutdown measures except when take of SRKWs approaches the 
authorized limit (see below). Instead, WSDOT is required to establish 
and monitor the 120 dB (rms) re 1 [mu]Pa zone of influence (ZOI, see 
below Monitoring and Reporting section).
    One significant mitigation measure for WSDOT's pile removal and 
pile driving activities is ramping up, or soft start, of vibratory pile 
hammers. The purpose of this procedure is to prevent the startling 
behavior of marine mammals in the vicinity of the construction activity 
from sudden loud noise.
    Soft start requires contractors to initiate the vibratory hammer at 
reduced power for 15 seconds with a 1 minute interval, and repeat such 
procedures for an additional two times.
    In addition, monitoring for marine mammal presence will take place 
30 minutes before, during and 30 minutes after pile driving to document 
marine mammal occurrence and responses before, during and after the 
pile driving

[[Page 36529]]

and pile removal activities (see Monitoring and Reporting section 
below).
    In addition, WSDOT will implement shutdown measures whenever 
Southern Resident killer whales (SRKWs) are present in the vicinity of 
the project area and take all practical steps to avoid exposing SRKWs 
to sound levels that result in harassment. If it is unknown whether it 
is a SRKW or a transient killer whale, it shall be assumed to be a SRKW 
appropriate mitigation measures shall be implemented.
    Further, if the number of any allotted marine mammal takes reaches 
the limit under the IHA, WSDOT will implement shutdown measures if such 
species/stock of animal approaches the 120 dB Level B harassment zone.
    Finally, to avoid exceeding its SRKW take limit, NMFS has required 
WSDOT to not resume activities until any SRKW (1) is observed to have 
left the Level B harassment zone or (2) has not been seen or otherwise 
detected within the Level B harassment zone 30 minutes.

Mitigation Conclusions

    Based on our evaluation of the prescribed mitigation measures, NMFS 
has determined the measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

Monitoring Measures

    Any ITA issued under Section 101(a)(5)(D) of the MMPA is required 
to prescribe, where applicable, ``requirements pertaining to the 
monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) state that requests for ITAs must 
include the suggested means of accomplishing the necessary monitoring 
and reporting that will result in increased knowledge of the species 
and of the level of taking or impacts on populations of marine mammals 
that are expected to be present in the action area.
(1) Protected Species Observers (PSOs)
    WSDOT will employ qualified protected species observers (PSOs) to 
monitor the 120 dB re 1 [mu]Pa (rms) for marine mammals. Qualifications 
for marine mammal observers include:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance. Use of binoculars is 
necessary to correctly identify the target.
     Advanced education (at least some college level courses) 
in biological science, wildlife management, mammalogy or related fields 
(Bachelor's degree or higher is preferred), but not required.
     Experience or training in the field identification of 
marine mammals (cetaceans and pinnipeds).
     Sufficient training, orientation or experience with the 
construction operation to provide for personal safety during 
observations.
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real time information on marine mammals 
observed in the area as necessary.
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
     Writing skills sufficient to prepare a report of 
observations that would include such information as the number and type 
of marine mammals observed; the behavior of marine mammals in the 
project area during construction, dates and times when observations 
were conducted; dates and times when in-water construction activities 
were conducted; and dates and times when marine mammals were present at 
or within the defined ZOI.
(2) Monitoring Protocols
    PSOs will be present on site at all times during pile removal and 
driving. Marine mammal behavior, overall numbers of individuals 
observed, frequency of observation, and the time corresponding to the 
daily tidal cycle will be recorded.
    The following protocols will be used for marine mammal monitoring 
during the Bremerton Ferry Terminal construction work:
     A range finder or hand-held global positioning system 
device will be used to ensure that the 120 dB re 1 [mu]Pa (rms) Level B 
behavioral harassment ZOI is monitored.
     A 20-minute pre-construction marine mammal monitoring 
period will be required before the first pile driving or pile removal 
of the day. A 30-minute post-construction marine mammal monitoring 
period will be required after the last pile driving or pile removal of 
the day. If the construction personnel take a break between subsequent 
pile driving or pile removal for more than 30 minutes, then additional 
pre-construction marine mammal monitoring will be required before the 
next start-up of pile driving or pile removal.
     If marine mammals are observed, the following information 
will be document:
    [ssquf] Species of observed marine mammals;
    [ssquf] Number of observed marine mammal individuals;
    [ssquf] Behavioral of observed marine mammals;
    [ssquf] Location within the ZOI; and
    [ssquf] Animals' reaction (if any) to pile-driving activities.
     During vibratory pile removal and driving, one land-based 
biologist will monitor the area from the terminal work site, and one 
boat with a qualified PSO shall navigate the ZOI in a circular path. 
All PSOs shall use binoculars to conducting monitoring.
     In addition, WSDOT will contact the Orca Network and/or 
Center for Whale Research to determine the location of the nearest 
marine mammal sightings. Sightings are called or emailed into the Orca 
Network and immediately distributed to other sighting networks 
including: The Northwest Fisheries Science Center of NOAA Fisheries, 
the Center for Whale Research, Cascadia Research, the Whale Museum 
Hotline, and the British Columbia Sightings Network.
     Marine mammal occurrence information collected by the Orca 
Network also includes detection by the following hydrophone systems: 
(1) The SeaSound Remote Sensing Network, a system of interconnected 
hydrophones installed in the marine environment of Haro Strait (west 
side of San Juan Island) to study killer whale communication, 
underwater noise, bottomfish ecology, and local climatic conditions, 
and (2) A hydrophone at the Port Townsend Marine Science Center that 
measures average underwater sound levels and automatically detects 
unusual sounds.
    NMFS has determined that these monitoring measures are adequate, 
particularly as it relates to assessing the level of taking or impacts 
to affected species. The land-based PSO is expected to be positioned in 
a location that will maximize his/her ability to detect marine mammals 
and will also be required to utilize binoculars to improve detection 
rates. In addition, the boat-based PSO will cruise within the 120 dB 
ZOI, which is not a particularly large zone, thereby allowing him/her 
to conduct additional monitoring with binoculars. With respect to 
prevent takes of SRKW, NMFS considers WSDOT's visual and acoustic 
monitoring is adequate because (1) killer whales have large dorsal fins 
and can be easily spotted from great distances; (2) SRKWs typically 
move in groups which

[[Page 36530]]

makes visual detection much easier; and (3) resident killer whales are 
very vocal, which makes them relatively easier for acoustic detection.

Reporting Measures

    WSDOT will provide NMFS with a draft monitoring report within 90 
days of the conclusion of the construction work. This report will 
detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.
    If comments are received from the NMFS Northwest Regional 
Administrator or NMFS Office of Protected Resources on the draft 
report, a final report will be submitted to NMFS within 30 days 
thereafter. If no comments are received from NMFS, the draft report 
will be considered to be the final report.

Notification of Injured or Dead Marine Mammals

    In addition to the reporting measures listed above, NMFS will 
require that WSDOT notify NMFS' Office of Protected Resources and NMFS' 
Stranding Network of sighting an injured or dead marine mammal in the 
vicinity of marine operations. Depending on the circumstance of the 
incident, WSDOT shall take one of the following reporting protocols 
when an injured or dead marine mammal is discovered in the vicinity of 
the action area.
    (a) In the unanticipated event that the construction activities 
clearly cause the take of a marine mammal in a manner prohibited by 
this Authorization, such as an injury, serious injury or mortality 
(e.g., ship-strike, gear interaction, and/or entanglement), WSDOT shall 
immediately cease all operations and immediately report the incident to 
the Supervisor of Incidental Take Program, Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Northwest 
Regional Stranding Coordinators. The report must include the following 
information:
    (i) time, date, and location (latitude/longitude) of the incident;
    (ii) description of the incident;
    (iii) status of all sound source use in the 24 hours preceding the 
incident;
    (iv) environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility, and water depth);
    (v) description of marine mammal observations in the 24 hours 
preceding the incident;
    (vi) species identification or description of the animal(s) 
involved;
    (vii) the fate of the animal(s); and
    (viii) photographs or video footage of the animal (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with WSDOT to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. WSDOT may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    (b) In the event that WSDOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
WSDOT will immediately report the incident to the Supervisor of the 
Incidental Take Program, Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the Northwest Regional Stranding 
Coordinators. The report must include the same information identified 
above. Activities may continue while NMFS reviews the circumstances of 
the incident. NMFS will work with WSDOT to determine whether 
modifications in the activities are appropriate.
    (c) In the event that WSDOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), WSDOT shall report the incident to 
the Supervisor of the Incidental Take Program, Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the Northwest 
Regional Stranding Coordinators, within 24 hours of the discovery. 
WSDOT shall provide photographs or video footage (if available) or 
other documentation of the stranded animal sighting to NMFS and the 
Marine Mammal Stranding Network. WSDOT can continue its operations 
under such a case.

Estimated Take by Incidental Harassment

    As mentioned in the Federal Register notice for the proposed IHA, a 
worst-case scenario for the Bremerton Ferry Terminal project assumes 
that it may take four days to remove the existing piles and seven days 
to install the new piles. The maximum total number of hours of pile 
removal activity is about 28 hours, and pile-driving activity is about 
6.75 hours (averaging about 3.2 hours of active pile removal/driving 
for each construction day).
    Also, as described in the Federal Register notice for the proposed 
IHA, for non-impulse noise, NMFS uses 120 dB (rms) re 1 [mu]Pa as the 
threshold for Level B behavioral harassment. The distance to the 120 dB 
contour Level B acoustical harassment threshold due to vibratory pile 
driving for the Bremerton ferry terminal project extends a maximum of 
4.7 km (2.9 miles) before land is intersected. The ZOI would be 
monitored during construction to estimate actual harassment take of 
marine mammals.
    Airborne noises can affect pinnipeds, especially resting seals 
hauled out on rocks or sand spits. The airborne 90 dB Level B threshold 
for hauled out harbor seals was estimated at 37 m, and the airborne 100 
dB Level B threshold for all other pinnipeds is estimated at 12 m.
    The nearest known harbor seal haulout site to the Bremerton ferry 
terminal is 8.5 km north and west (shoreline distance). The nearest 
documented California and Steller sea lion haulout sites to the 
Bremerton ferry terminal are navigation buoys in Rich Passage, 
approximately 9 and 10 km east of the terminal. The Puget Sound Naval 
Shipyard security barrier California sea lion haulout is located 
approximately 435 m SW of the ferry terminal.
    In-air noise from this project will not reach any haulout sites, 
but harbor seals swimming on the surface through the 37 m zone, and 
other pinnipeds swimming on the surface through the 12 m zone during 
vibratory pile removal or driving may be temporarily disturbed.
    Incidental take is estimated for each species by estimating the 
likelihood of a marine mammal being present within a ZOI during active 
pile removal or driving. Expected marine mammal presence is determined 
by past observations and general abundance near the Bremerton Ferry 
Terminal during the construction window. Typically, potential take is 
estimated by multiplying the area of the ZOI by the local animal 
density. This provides an estimate of the number of animals that might 
occupy the ZOI at any given moment. However, there are no density 
estimates for any Puget Sound population of marine mammal. As a result, 
the take requests were estimated using local marine mammal data sets 
(e.g., Orca Network, state and federal agencies), opinions from state 
and federal agencies, and observations from Navy biologists.
    Based on the estimates, approximately 649 Pacific harbor seals, 
1,584 California sea lions, 66 Steller sea lions, 28 killer whales (24 
transient, 4 Southern Resident killer whales), 8 gray

[[Page 36531]]

whales, and 8 humpback whales could be exposed to received sound levels 
at or above 120 dB re 1 [mu]Pa (rms) from the proposed Bremerton Ferry 
Terminal wingwalls replacement work. A summary of the estimated takes 
is presented in Table 3.

   Table 3--Estimated Numbers of Marine Mammals That May Be Exposed to
 Received Pile Driving and Pile Removal Levels Above 120 dB re 1 [mu]Pa
                                  (rms)
------------------------------------------------------------------------
                                             Estimated
                 Species                  marine  mammal    Percentage
                                               takes
------------------------------------------------------------------------
Pacific harbor seal.....................             649             4.4
California sea lion.....................           1,584            0.53
Steller sea lion........................              66            0.11
Killer whale, transient.................              24             6.8
Killer whale, Southern Resident.........               4               5
Gray whale..............................               8            0.03
Humpback whale..........................               8             0.7
------------------------------------------------------------------------

    The requested takes represent 4.4% of the Inland Washington stock 
harbor seals (estimated at 14,612), 0.53% of the U.S. stock California 
sea lion (estimated at 296,750), 0.11% of the eastern stock Steller sea 
lion (estimated at 58,334), 6.8% of the West Coast transient killer 
whale (estimated at 354), 5% of Southern Resident killer whale 
(estimated at 85), 0.03% of the Eastern North Pacific stock gray whale 
(estimated at 26,000), and 0.7% of the Eastern North Pacific stock 
humpback whale (estimated at 1,100), all of which are small relative to 
their population or stock size.

Negligible Impact and Small Numbers Analyses and Determinations

    As a preliminary matter, we typically include our negligible impact 
and small numbers analyses and determinations under the same section 
heading of our Federal Register Notices. Despite co-locating these 
terms, we acknowledge that negligible impact and small numbers are 
distinct standards under the MMPA and treat them as such. The analyses 
presented below do not conflate the two standards; instead, each 
standard has been considered independently and we have applied the 
relevant factors to inform our negligible impact and small numbers 
determinations.
    Pursuant to NMFS' regulations implementing the MMPA, an applicant 
is required to estimate the number of animals that will be ``taken'' by 
the specified activities (i.e., takes by harassment only, or takes by 
harassment, injury, and/or death). This estimate informs the analysis 
that NMFS must perform to determine whether the activity will have a 
``negligible impact'' on the species or stock. Level B (behavioral) 
harassment occurs at the level of the individual(s) and does not assume 
any resulting population-level consequences, though there are known 
avenues through which behavioral disturbance of individuals can result 
in population-level effects. A negligible impact finding is based on 
the lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes alone is not enough information on which to 
base an impact determination.
    In addition to considering estimates of the number of marine 
mammals that might be ``taken'' through behavioral harassment, NMFS 
considers other factors, such as the likely nature of any responses 
(their intensity, duration, etc.), the context of any responses 
(critical reproductive time or location, migration, etc.), as well as 
the number and nature of estimated Level A takes, the number of 
estimated mortalities, and effects on habitat.
    The WSDOT's proposed Bremerton Ferry Terminal construction project 
would conduct vibratory pile removal and pile driving to replace 
wingwall structures. Elevated underwater noises are expected to be 
generated as a result of pile removal and pile driving activities. 
However, noise levels from the machinery and activities are not 
expected to reach to the level that may cause TTS, injury (PTS 
included), or mortality to marine mammals. Therefore, NMFS does not 
expect that any animals would experience Level A harassment or Level B 
harassment in the form of TTS from being exposed to in-water pile 
driving and pile removal associated with WSDOT construction project.
    Based on long-term marine mammal monitoring and studies in the 
vicinity of the proposed construction areas, it is estimated that 
approximately 649 Pacific harbor seals, 1,584 California sea lions, 66 
Steller sea lions, 40 killer whales (24 transient, 16 Southern Resident 
killer whales), 8 gray whales, and 8 humpback whales could be exposed 
to received noise levels above 120 dBrms re 1 [mu]Pa from 
the proposed construction work at the Bremerton Ferry Terminal. These 
numbers represent approximately 0.03%-6.8% of the stocks and 
populations of these species could be affected by Level B behavioral 
harassment. As mentioned earlier in this document, the worst case 
scenario for the proposed construction work would only take a total of 
34.75 hours (28 hours for pile removal and 6.75 hours for pile 
driving).
    In addition, these low intensity, localized, and short-term noise 
exposures may cause brief startle reactions or short-term behavioral 
modification by the animals. These reactions and behavioral changes are 
expected to subside quickly when the exposures cease. In addition, no 
important feeding and/or reproductive areas of marine mammals is known 
to be near the proposed action area. Therefore, the take resulting from 
the proposed Bremerton Ferry Terminal construction projects is not 
reasonably expected to, and is not reasonably likely to, adversely 
affect the marine mammal species or stocks through effects on annual 
rates of recruitment or survival. The maximum estimated 120 dB 
isopleths from vibratory pile driving is approximately 4.7 km from the 
pile before being blocked by landmass.
    The closest documented California sea lion haulout site to the 
Bremerton Ferry Terminal is the Puget Sound Naval Shipyard security 
barrier, located approximately 435 m SW of the ferry terminal. The next 
closest documented California sea lion haulout sites to the Bremerton 
Ferry Terminal are navigation buoys and net pens in Rich Passage, 
approximately nine and ten km east of the terminal, respectively. 
However, it is estimated that airborne noise from vibratory pile 
driving a 30-in steel pile would fall below 90 dB and 100 dB re 1 20 
[mu]Pa at 37 m and 12 m

[[Page 36532]]

from the pile, respectively. No other pinniped haulout site exists in 
the vicinity of the proposed project area. Therefore, pinnipeds hauled 
out at the Puget Sound Naval Shipyard security barrier will not be 
affected.
    For the reasons discussed in this document, NMFS has determined 
that the impact of vibratory pile removal and pile driving associated 
with wingwall replacements at Bremerton Ferry Terminal would result, at 
worst, in the Level B harassment of small numbers of six marine mammals 
that inhabit or visit the area. While behavioral modifications, 
including temporarily vacating the area around the construction site, 
may be made by these species to avoid the resultant visual and acoustic 
disturbance, the availability of alternate areas within Washington 
coastal waters and haul-out sites has led NMFS to determine that this 
action will have a negligible impact on these species in the vicinity 
of the proposed construction area.
    In addition, no take by TTS, Level A harassment or death is 
anticipated and harassment takes should be at the lowest level 
practicable due to incorporation of the mitigation and monitoring 
measures mentioned previously in this document.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) and analyzed the 
potential impacts to marine mammals that would result from WSDOT's 
wingwalls replacement work at the Bremerton Ferry Terminal. A Finding 
of No Significant Impact (FONSI) was signed on June 10, 2013. A copy of 
the EA and FONSI is available upon request (see ADDRESSES).

Endangered Species Act (ESA)

    The humpback whale, Southern Resident stock of killer whale, and 
the eastern population of Steller sea lions, are the only marine mammal 
species currently listed under the ESA that could occur in the vicinity 
of WSDOT's construction projects. NMFS' Permits and Conservation 
Division consulted with NMFS' Northwest Regional Office Division of 
Protected Resources under section 7 of the ESA on the issuance of an 
IHA to WSDOT under section 101(a)(5)(D) of the MMPA for this activity. 
A Biological Opinion was issued on February 19, 2013, which concludes 
that issuance of the IHA is not likely to jeopardize the continued 
existence of the ESA-listed marine mammal species. NMFS will issue an 
Incidental Take Statement under this Biological Opinion which contains 
reasonable and prudent measures with implementing terms and conditions 
to minimize the effects of take of listed species.

Authorization

    NMFS has issued an IHA to WSDOT for the potential harassment of 
small numbers of six marine mammal species incidental to wingwalls 
replacement construction activities at the Bremerton Ferry Terminal in 
Washington State, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: June 12, 2013.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2013-14494 Filed 6-17-13; 8:45 am]
BILLING CODE 3510-22-P