[Federal Register Volume 80, Number 156 (Thursday, August 13, 2015)]
[Notices]
[Pages 48500-48509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19958]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE097


Taking of Marine Mammals Incidental to Specified Activities; 
Front Street Transload Facility Construction

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments and information.

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SUMMARY: NMFS has received a request from the Bergerson Construction, 
Inc. (Bergerson) for an authorization to take small numbers of two 
species of marine mammals, by Level B harassment, incidental to 
proposed construction activities for Front Street Transload Facility 
construction project in Newport, Oregon. Pursuant to the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an authorization to Bergerson to incidentally take, by 
harassment, small numbers of marine mammals for a period of 1 year.

DATES: Comments and information must be received no later than 
September 14, 2015.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910. The mailbox address for providing email 
comments is [email protected]. NMFS is not responsible for email 
comments sent to addresses other than the one provided here. Comments 
sent via email, including all attachments, must not exceed a 25-
megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application may be obtained by writing to the address 
specified above or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may also 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 April 22, 2015, Bergerson submitted a request to NMFS requesting 
an IHA for the possible harassment of small numbers of Pacific harbor 
seal (Phoca vitulina richardii) and California sea lion (Zalophus 
californianus) incidental to construction associated with the Front 
Street Marine Transload Facility in the city of Newport, Oregon, for a 
period of one year starting November 2015. NMFS determined the IHA 
application was complete on July 29, 2015, and proposes to issue an IHA 
that would be valid between November 1, 2015, and October 31, 2016. 
NMFS is proposing to authorize the Level B harassment of Pacific harbor 
seal and California sea lion.

Description of the Specified Activity

Overview

    The purpose of the proposed Front Street Marine Transload Facility 
construction is to construct a new transload and fish buying facility 
at the current location of the Undersea Gardens. The new transload 
facility would provide local fisherman with an alternative location for 
selling their fish and shellfish in Newport, Oregon (see Figure 1 of 
Bergerson's IHA application).
    The current Undersea Gardens and all associated structures would be 
removed prior to construction of the new facility. The new transload 
facility would consist of a 132-foot wide by 141-foot deep wharf 
comprised of precast concrete panels supported on steel

[[Page 48501]]

piles. Up to 112 24-inch diameter steel support piles and 14 18-inch 
diameter steel fender piles would be installed. The new wharf would sit 
level with Bay Boulevard, approximately 10 feet above mean sea level 
(msl), and would support a 4,000 square foot cold storage building and 
500 square foot ice machine. Approximately 15,860 square feet of the 
new wharf would be suspended over water, resulting in approximately 
9,160 square feet of net new overwater structure following removal of 
the existing Undersea Gardens and its associated structures 
(approximately 6,700 square feet).
    The proposed project would result in a net removal of approximately 
2,000 cubic yards of existing structural components from below the 
highest measured tide (HMT) of Yaquina Bay. Construction is scheduled 
to begin in November 2015, with completion of the wharf expected by 
September 2016. The associated cold storage building would be 
constructed after completion of the wharf. The proposed project would 
require approximately 12 weeks of in-water work. Construction crews and 
equipment would access the project site via existing roadways and two 
floating barges, including a crane barge (measuring 60 by 100 feet) 
secured with two spud piles, and a material barge (measuring 40 by 100 
feet) moored to the crane barge. Piles would be installed using a 
vibratory hammer with some use of an impact hammer to seat the piles to 
their desired depth.

Dates and Duration

    In-water construction is planned to take place between November 
2015 and October 2016, with in-water pile removal and pile driving 
activities limited between November 1, 2015, and February 15, 2016.

Specified Geographic Region

    The proposed activities will occur at the current Undersea Garden 
located in Yaquina Bay along Bay Boulevard in Newport, Oregon (see 
Figure 1 of Bergerson's IHA application).

Detailed Description of Front Street Transload Facility Construction

    Details of each activity for the Front Street Transload Facility 
construction project are provided below.
(1) Removal of the Existing Undersea Gardens
    The existing Undersea Gardens and all associated structures 
(including a wooden breakwater, small storage dock, access ramp, small 
section of pier, and approximately 25 pilings) would be removed prior 
to construction of the new transload facility. The Undersea Gardens is 
a floating structure that houses an underwater aquarium and gift shop. 
The structure itself would be towed from its current location (via 
tugboat) approximately 10 miles upstream to Yaquina Boatyard, where it 
would then be dismantled. In order to access the Undersea Gardens with 
a tugboat, the existing wooden breakwater that protects the structure 
would have to be removed. The breakwater is comprised of vertical 
wooden boards assembled in a line and supported by steel and wood 
piles. The boards would be removed by hand and the remaining support 
piles (including approximately five H-piles, five 12-inch diameter 
steel piles, and five 12-inch diameter wooden piles) would be removed 
with a vibratory hammer.
    Following removal of the breakwater, approximately eight 12-inch 
diameter wooden support piles and a small section of pier, and two 12-
inch diameter spud piles that anchor the storage dock would also be 
removed.
    It is anticipated that piling removal would require approximately 
15 minutes of vibratory hammer use per pile. All items removed would be 
placed in a contained area on a service barge and hauled to an upland 
location for recycling or disposal. Removal of the existing piles would 
require approximately 6 hours of total vibratory hammer use over a 
period of two to four in-water work days. Removal of the existing 
Undersea Gardens and associated structures would result in the removal 
of approximately 2,500 cubic yards of existing in-water structures from 
below the HMT of Yaquina Bay, and 6,700 square feet of existing 
overwater structures. No dredging or in-water excavation would be 
required.
(2) Construction of the New Transload Facility

Wharf

    The new transload facility would consist of a 132-foot wide by 141-
foot deep wharf comprised of precast concrete panels supported on up to 
112 24-inch diameter steel support piles, and 14 18-inch diameter steel 
fender piles. The precast panels would be approximately 4 feet wide by 
20 feet long, requiring seven panels supported on eight rows of piles 
spaced 10-foot on center across each row. The bottom of each panel 
would be painted with white, light reflecting paint to increase natural 
lighting under the new wharf. The new wharf would sit level with Bay 
Boulevard, approximately 10 feet above msl, and would result in 
approximately 9,360 square feet of net new overwater structure.

Piling Installation

    The steel support piles and fender piles would be installed using a 
vibratory hammer and an impact hammer (operating from a barge-mounted 
crane) to a depth of approximately 30 feet within the substrate. All 
new piles would also be treated with a white, light reflective coating. 
Each new pile would require approximately 15 to 30 minutes of vibratory 
hammer use for installation. It is likely that the vibratory hammer 
would not fully embed the piles to the required depth given the 
presence of siltstone below the sediment. As such, an impact hammer 
would be used to seat the piles to the required depth. It is 
anticipated that use of an impact hammer would be needed for up to 10 
feet of siltstone penetration. Up to 102 piles would be located below 
the HMT, resulting in approximately 300 square feet (555 cubic yards) 
of fill.
    Based on a review of pile driving logs from previous piling 
installation projects, Bergerson anticipates that any piles that cannot 
be fully embedded with use of a vibratory hammer, may require an 
average of 10 minutes of impact hammer use, at an average rate of 40 
strikes per minute. Given the amount of time it takes to set the crane 
barge, center each pile, and switch between the vibratory hammer and 
impact hammer, it is estimated that the average installation rate would 
be four piles per day. This equates to potentially 40 minutes of impact 
hammer use (1,600 pile strikes) per day. Pile driving would occur 
intermittently over the course of approximately 12 weeks. The 
contractor would be required to implement appropriate sound attenuation 
methods (e.g., a confined or unconfined bubble curtain) as detailed in 
the Mitigation Measures below. It is expected that proper use of the 
bubble curtain would result in 10 decibel (dB) attenuation (NMFS 2011, 
ICF Jones & Stokes and Illingworth & Rodkin 2009). It is possible that 
proper use of a bubble curtain can result in up to 20 dB attenuation 
depending on site specific conditions (ICF Jones & Stokes and 
Illingworth & Rodkin 2009).

Cold Storage Building

    The new wharf would sit level with Bay Boulevard (approximately 10 
feet above msl) and would support a 4,000 square foot cold storage 
building and 500 square foot ice machine. The proposed building would 
be used to cold pack local fish and shellfish for distribution. There 
may be some limited

[[Page 48502]]

fish fillet processing for local distribution only. Small forklifts 
would be used on the wharf for unloading and loading of boats and truck 
trailers. Operation of the new transload facility would not require 
pumping of water from Yaquina Bay. All water would be provided by local 
utilities. In addition, no excavation or maintenance dredging would be 
required to construct or operate the new facility. Furthermore, 
operation of the new transload facility would not increase local boat 
traffic within the vicinity of the action area. The new facility would 
service local fisherman already operating within Yaquina Bay and local 
Newport marinas. The operation of the new transload facility is not 
expected to impact on marine mammals in the project vicinity.
    A summary of piles to be removed and installed is provided in Table 
1.

                               Table 1--Project Piles To Be Removed and Installed
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                                                                    Pile size
                                   Location        Pile type         (inch)        Hammer used     Number piles
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Pile removal.................  Breakwater at    H pile.........  ..............  Vibratory......               5
                                Undersea        Steel pile.....              12  Vibratory......               5
                                Garden.         Wooden pile....              12  Vibratory......               5
                               Storage dock at  Wooden pile....              12  Vibratory......               8
                                Undersea        Spud pile......              12  Vibratory......               2
                                Garden.
                                                                                                 ---------------
    Total....................  ...............  ...............  ..............  ...............              25
----------------------------------------------------------------------------------------------------------------
Pile driving.................  Wharf for the    Steel pile.....              24  Vibratory/                  112
                                new transload   Steer fender                 18   impact.                     14
                                facility.        pile.                           Vibratory/
                                                                                  impact.
                                                                                                 ---------------
    Total....................  ...............  ...............  ..............  ...............             126
----------------------------------------------------------------------------------------------------------------

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to 
occur in the proposed construction area include Pacific harbor seal 
(Phoca vitulina richardsi) and California sea lion (Zalophus 
californianus).

                    Table 2--Marine Mammal Species Potentially Present in Region of Activity
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               Species                        ESA Status              MMPA Status               Occurrence
----------------------------------------------------------------------------------------------------------------
Harbor Seal..........................  Not listed.............  Non-depleted...........  Frequent
California Sea Lion..................  Not listed.............  Non-depleted...........  Frequent
----------------------------------------------------------------------------------------------------------------

    General information on the marine mammal species found in Oregon 
coastal waters can be found in Caretta et al. (2014), which is 
available at the following URL: http://www.nmfs.noaa.gov/pr/sars/pdf/po2013.pdf. Refer to that document for information on these species. A 
list of marine mammals in the vicinity of the action and their status 
are provided in Table 2. Specific information concerning these species 
in the vicinity of the proposed action area is provided in detail in 
the Bergerson's IHA application (Turner and Campbell, 2015).

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the 
types of stressors associated with the specified activity (e.g., pile 
removal and pile driving) have been observed to impact marine mammals. 
This discussion may also include reactions that we consider to rise to 
the level of a take and those that we do not consider to rise to the 
level of a take (for example, with acoustics, we may include a 
discussion of studies that showed animals not reacting at all to sound 
or exhibiting barely measurable avoidance). This section is intended as 
a background of potential effects and does not consider either the 
specific manner in which this activity will be carried out or the 
mitigation that will be implemented, and how either of those will shape 
the anticipated impacts from this specific activity. The ``Estimated 
Take by Incidental Harassment'' section later in this document will 
include a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The ``Negligible Impact 
Analysis'' section will include the analysis of how this specific 
activity will impact marine mammals and will consider the content of 
this section, the ``Estimated Take by Incidental Harassment'' section, 
the ``Proposed Mitigation'' section, and the ``Anticipated Effects on 
Marine Mammal Habitat'' section to draw conclusions regarding the 
likely impacts of this activity on the reproductive success or 
survivorship of individuals and from that on the affected marine mammal 
populations or stocks.
    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms have been derived using 
auditory evoked potentials, anatomical modeling, and other data, 
Southall et al. (2007) designate ``functional hearing groups'' for 
marine mammals and estimate the lower and upper frequencies of 
functional hearing of the groups. The functional groups and the 
associated frequencies are indicated below (though animals are less 
sensitive to sounds at the outer edge of their functional range and 
most sensitive to sounds of frequencies within a smaller range 
somewhere in the middle of their functional hearing range):
     Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 Hz and 
25 kHz (however, a study by Au et al., (2006)

[[Page 48503]]

of humpback whale songs indicate that the range may extend to at least 
24 kHz);
     Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): Functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
     High frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): Functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz; and
     Pinnipeds in Water: Functional hearing is estimated to 
occur between approximately 75 Hz and 75 kHz, with the greatest 
sensitivity between approximately 700 Hz and 20 kHz.
    As mentioned previously in this document, two marine mammal species 
(both are pinniped species) are likely to occur in the proposed seismic 
survey area.
    Marine mammals exposed to high-intensity sound repeatedly or for 
prolonged periods can experience hearing threshold shift (TS), which is 
the loss of hearing sensitivity at certain frequency ranges (Kastak et 
al. 1999; Schlundt et al. 2000; Finneran et al. 2002; 2005). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is 
unrecoverable, or temporary (TTS), in which case the animal's hearing 
threshold will recover over time (Southall et al. 2007). Since marine 
mammals depend on acoustic cues for vital biological functions, such as 
orientation, communication, finding prey, and avoiding predators, 
hearing impairment could result in the reduced ability of marine 
mammals to detect or interpret important sounds. Repeated noise 
exposure that causes TTS could lead to PTS.
    Experiments on a bottlenose dolphin (Tursiops truncates) and beluga 
whale (Delphinapterus leucas) showed that exposure to a single watergun 
impulse at a received level of 207 kPa (or 30 psi) peak-to-peak (p-p), 
which is equivalent to 228 dB (p-p) re 1 [mu]Pa, resulted in a 7 and 6 
dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds 
returned to within 2 dB of the pre-exposure level within 4 minutes of 
the exposure (Finneran et al. 2002). No TTS was observed in the 
bottlenose dolphin. Although the source level of one hammer strike for 
pile driving is expected to be much lower than the single watergun 
impulse cited here, animals being exposed for a prolonged period to 
repeated hammer strikes could receive more noise exposure in terms of 
sound exposure level (SEL) than from the single watergun impulse 
(estimated at 188 dB re 1 [mu]Pa\2\-s) in the aforementioned experiment 
(Finneran et al. 2002).
    Chronic exposure to excessive, though not high-intensity, noise 
could cause masking at particular frequencies for marine mammals that 
utilize sound for vital biological functions (Clark et al. 2009). 
Masking is the obscuring of sounds of interest by other sounds, often 
at similar frequencies. Masking generally occurs when sounds in the 
environment are louder than, and of a similar frequency as, auditory 
signals an animal is trying to receive. Masking can interfere with 
detection of acoustic signals, such as communication calls, 
echolocation sounds, and environmental sounds important to marine 
mammals. Therefore, under certain circumstances, marine mammals whose 
acoustical sensors or environment are being severely masked could also 
be impaired.
    Masking occurs at the frequency band which the animals utilize. 
Since noise generated from in-water vibratory pile removal and driving 
is mostly concentrated at low frequency ranges, it may have little 
effect on high-frequency echolocation sounds by odontocetes (toothed 
whales), which may hunt California sea lion and harbor seal. However, 
the lower frequency man-made noises are more likely to affect the 
detection of communication calls and other potentially important 
natural sounds, such as surf and prey noise. The noises may also affect 
communication signals when those signals occur near the noise band, and 
thus reduce the communication space of animals (e.g., Clark et al. 
2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt 
et al. 2009).
    Unlike TS, masking can potentially impact the species at community, 
population, or even ecosystem levels, as well as individual levels. 
Masking affects both senders and receivers of the signals and could 
have long-term chronic effects on marine mammal species and 
populations. Recent science suggests that low frequency ambient sound 
levels in the world's oceans have increased by as much as 20 dB (more 
than 3 times, in terms of SPL) from pre-industrial periods, and most of 
these increases are from distant shipping (Hildebrand 2009). All 
anthropogenic noise sources, such as those from vessel traffic and pile 
removal and driving, contribute to the elevated ambient noise levels, 
thus intensifying masking.
    Finally, in addition to TS and masking, exposure of marine mammals 
to certain sounds could lead to behavioral disturbance (Richardson et 
al. 1995), such as: Changing durations of surfacing and dives, number 
of blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral 
activities, such as socializing or feeding; visible startle response or 
aggressive behavior, such as tail/fluke slapping or jaw clapping; 
avoidance of areas where noise sources are located; and/or flight 
responses (e.g., pinnipeds flushing into water from haulouts or 
rookeries). The onset of behavioral disturbance from anthropogenic 
noise depends on both external factors (characteristics of noise 
sources and their paths) and the receiving animals (hearing, 
motivation, experience, demography), and is therefore difficult to 
predict (Southall et al. 2007).The activities of workers in the project 
area may also cause behavioral reactions by marine mammals, such as 
pinnipeds flushing from the jetty or pier or moving farther from the 
disturbance to forage. However, observations of the area show that it 
is unlikely that more than 10 to 20 individuals of pinnipeds would be 
present in the project vicinity at any one time. Therefore, even if 
pinnipeds were flushed from the haul-out, a stampede is very unlikely, 
due to the relatively low number of animals onsite. In addition, 
proposed mitigation and monitoring measures would minimize the startle 
behavior of pinnipeds and prevent the animals from flushing into the 
water.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be expected to be biologically significant if the 
change affects growth, survival, or reproduction. Some of these types 
of significant behavioral modifications include: Drastic change in 
diving/surfacing patterns (such as those thought to be causing beaked 
whale strandings due to exposure to military mid-frequency tactical 
sonar); habitat abandonment due to loss of desirable acoustic 
environment; and cessation of feeding or social interaction.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by vibratory pile 
removal and pile driving in the area. However, other potential impacts 
to the surrounding habitat from physical disturbance are also possible.

Potential Impacts on Prey Species

    With regard to fish as a prey source for cetaceans and pinnipeds, 
fish are

[[Page 48504]]

known to hear and react to sounds and to use sound to communicate 
(Tavolga et al. 1981) and possibly avoid predators (Wilson and Dill 
2002). Experiments have shown that fish can sense both the strength and 
direction of sound (Hawkins 1981). Primary factors determining whether 
a fish can sense a sound signal, and potentially react to it, are the 
frequency of the signal and the strength of the signal in relation to 
the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al. 1993). In general, fish react more strongly to pulses of 
sound rather than non-pulse signals (such as noise from pile driving) 
(Blaxter et al. 1981), and a quicker alarm response is elicited when 
the sound signal intensity rises rapidly compared to sound rising more 
slowly to the same level.
    During the coastal construction only a small fraction of the 
available habitat would be ensonified at any given time. Disturbance to 
fish species would be short-term and fish would return to their pre-
disturbance behavior once the pile driving activity ceases. Thus, the 
proposed construction would have little, if any, impact on the 
abilities of marine mammals to feed in the area where construction work 
is planned.
    Finally, the time of the proposed construction activity would avoid 
the spawning season of the ESA-listed salmonid species.

Passage Obstructions

    Pile removal and driving operations at the Front Street Transload 
Facility will not obstruct movements of marine mammals. The operations 
at the construction will occur next to the shoreline, leaving the 
majority of the Yaquina Bay for marine mammals to pass.

Proposed Mitigation Measures

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must set forth 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 Bergerson's proposed Front Street Transload Facility 
construction project, Bergerson worked with NMFS and proposed the 
following mitigation measures to minimize the potential impacts to 
marine mammals in the project vicinity. The primary purposes of these 
mitigation measures are to minimize sound levels from the activities, 
to monitor marine mammals within designated zones of influence (ZOI) 
corresponding to NMFS' current Level B harassment thresholds and, if 
marine mammals are detected within or approaching the exclusion zone, 
to initiate immediate shutdown or power down of the impact piling 
hammer, making it very unlikely potential injury or TTS to marine 
mammals would occur and ensuring that Level B behavioral harassment of 
marine mammals would be reduced to the lowest level practicable.

Time Restriction

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between November 1, 2015, 
and February 15, 2016.

Air Bubble Curtain

    Bergerson would be required to install an air bubble curtain system 
around the pile during pile installation using an impact hammer.

Establishment of Exclusion Zone and Level B Harassment Zones of 
Influence

    Before the commencement of in-water pile driving activities, 
Bergerson shall establish Level A exclusion zones and Level B zones of 
influence (ZOIs). The received underwater sound pressure levels (SPLs) 
within the exclusion zone would be 190 dB (rms) re 1 [micro]Pa and 
above. The Level B ZOIs would encompass areas where received underwater 
SPLs are higher than 160 dB (rms) and 120 dB (rms) re 1 [micro]Pa for 
impulse noise sources (impact pile driving) and non-impulses noise 
sources (vibratory pile driving and mechanic dismantling), 
respectively.
    Based on measurements conducted in nearby in similar water depth 
and sediment type in the Yaquina Bay for the NOAA Marine Operation 
Center P Test Pile Program (Miner, 2010), average vibratory hammer 
sound pressure level for 24-inch steel pile at 10 meters from the pile 
is 157 dB re 1 [micro]Pa (Minor 2010; ICF Jones & Stokes and 
Illingworth ∧ Rodkin 2009). Based on practical spreading model with 
a transmission loss constant of 15, the distance at which the sound 
pressure levels fall below the 120 dB (rms) re 1 [micro]Pa is 
approximately 1.8 miles from the pile (Miner, 2010).
    Modeling of exclusion zone and ZOIs for impact pile driving source 
level are based on measurements conducted at the nearby Tongue Point 
Facility in Astoria, Oregon, for installation of 24-in steel pile with 
an impact hammer (Illingworth and Rodkin, 2009). The result shows that 
the SPL at 10 m from the pile is 182 dB (rms) re 1 [micro]Pa. 
Nevertheless, a conservative 190 dB (rms) re 1 [micro]Pa value at 10 m 
and a practical spreading with a transmission loss constant of 15 are 
used to establish the exclusion zone and ZOI. The result shows that the 
distance at which the SPLs fall below the 160 dB (rms) re 1 [micro]Pa 
behavioral threshold for impact hammering is approximately 0.62 miles. 
With a bubble curtain and an estimated 10 dB reduction in sound levels, 
the distance at which the sound pressure levels fall below the 160 dB 
RMS behavioral threshold for impact hammering is approximately 707 
feet. The exclusion zone with the air bubble curtain system would be 7 
feet from the pile.
    The exclusion zone for Level A harassment and ZOIs for Level B 
harassment are presented in Table 3 below.

     Table 3--Modeled Level A and Level B Harassment Zones for Vibratory and Impact Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
        Pile driving methods           Distance to 190 dB (m)   Distance to 160 dB (m)   Distance to 120 dB (m)
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving/removal......  NA.....................  NA.....................  2,900
Impact pile driving.................  10/2.1 (with air bubble  1,000/215 (with air      NA
                                       system).                 bubble system).
----------------------------------------------------------------------------------------------------------------


[[Page 48505]]

Soft Start

    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the pile driver reaches full power. Whenever 
there has been downtime of 30 minutes or more without pile driving, the 
contractor will initiate the driving with ramp-up procedures described 
below.
    For impact pile driving, the contractor would provide an initial 
set of strikes from the impact hammer at reduced energy, followed by a 
30-second waiting period, then two subsequent sets. (The reduced energy 
of an individual hammer cannot be quantified because of variations 
between individual drivers. Also, the number of strikes will vary at 
reduced energy because raising the hammer at less than full power and 
then releasing it results in the hammer ``bouncing'' as it strikes the 
pile resulting in multiple ``strikes'').
    For vibratory pile driving, the contractor will initiate noise from 
vibratory hammers for 15 seconds at reduced energy followed by a 30-
second waiting period. The procedure shall be repeated two additional 
times.

Shutdown Measures

    Bergerson shall implement shutdown measures if a marine mammal is 
sighted approaching the Level A exclusion zone. In-water construction 
activities shall be suspended until the marine mammal is sighted moving 
away from the exclusion zone, or if the animal is not sighted for 30 
minutes after the shutdown.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of pile driving and pile removal or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of pile driving and pile removal, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to 1, above, or to reducing harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing the severity of harassment takes only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammals species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an incidental take authorization (ITA) for an 
activity, section 101(a)(5)(D) of the MMPA states that NMFS must set 
forth, ``requirements pertaining to the monitoring and reporting of 
such taking.'' The MMPA implementing regulations at 50 CFR 216.104 
(a)(13) indicate 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 proposed action area. Bergerson submitted a marine 
mammal monitoring plan as part of the IHA application. It can be found 
at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan may be 
modified or supplemented based on comments or new information received 
from the public during the public comment period.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    (3) An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
     Behavioral observations in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
     Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
     Distribution and/or abundance comparisons in times or 
areas with concentrated stimuli versus times or areas without stimuli;
    (4) An increased knowledge of the affected species; and
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.

Proposed Monitoring Measures

    During pile removal and installation, two land-based protected 
species observers (PSOs) would monitor the

[[Page 48506]]

area from the best observation points available. If weather conditions 
prevent adequate land-based observations of the entire ensonified 
zones, boat-based monitoring would be implemented.
    The PSOs would observe and collect data on marine mammals in and 
around the project area for 30 minutes before, during, and for 30 
minutes after all pile removal and pile installation work. If a PSO 
observes a marine mammal within or approaching the exclusion zone, the 
PSO would notify the work crew to initiate shutdown measures.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power).
    Data collection during marine mammal monitoring would consist of a 
count of all marine mammals by species, a description of behavior (if 
possible), location, direction of movement, type of construction that 
is occurring, time that pile replacement work begins and ends, any 
acoustic or visual disturbance, and time of the observation. 
Environmental conditions such as weather, visibility, temperature, tide 
level, current, and sea state would also be recorded.

Proposed Reporting Measures

    Bergerson would be required to submit a final monitoring report 
within 90 days after completion of the construction work or the 
expiration of the IHA (if issued), whichever comes earlier. This report 
would detail the monitoring protocol, summarize the data recorded 
during monitoring, and estimate the number of marine mammals that may 
have been harassed. NMFS would have an opportunity to provide comments 
on the report, and if NMFS has comments, Bergerson would address the 
comments and submit a final report to NMFS within 30 days.
    In addition, NMFS would require Bergerson to notify NMFS' Office of 
Protected Resources and NMFS' Stranding Network within 48 hours of 
sighting an injured or dead marine mammal in the vicinity of the 
construction site. Bergerson shall provide NMFS with the species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition, if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    In the event that Bergerson finds an injured or dead marine mammal 
that is not in the vicinity of the construction area, Bergerson would 
report the same information as listed above to NMFS as soon as 
operationally feasible.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 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].
    As discussed above, in-water pile removal and pile driving 
(vibratory and impact) generate loud noises that could potentially 
harass marine mammals in the vicinity of Bergerson's proposed Front 
Street Transload Facility construction project.
    As mentioned earlier in this document, currently NMFS uses 120 dB 
re 1 [micro]Pa and 160 dB re 1 [micro]Pa at the received levels for the 
onset of Level B harassment from non-impulse (vibratory pile driving 
and removal) and impulse sources (impact pile driving) underwater, 
respectively. Table 4 summarizes the current NMFS marine mammal take 
criteria.

   Table 4--Current Acoustic Exposure Criteria for Non-Explosive Sound
                               Underwater
------------------------------------------------------------------------
                                       Criterion
            Criterion                 definition           Threshold
------------------------------------------------------------------------
Level A Harassment (Injury).....  Permanent           180 dB re 1
                                   Threshold Shift     [micro]Pa
                                   (PTS) (Any level    (cetaceans) 190
                                   above that which    dB re 1 [micro]Pa
                                   is known to cause   (pinnipeds) root
                                   TTS).               mean square
                                                       (rms).
Level B Harassment..............  Behavioral          160 dB re 1
                                   Disruption (for     [micro]Pa (rms).
                                   impulse noises).
Level B Harassment..............  Behavioral          120 dB re 1
                                   Disruption (for     [micro]Pa (rms).
                                   non-impulse
                                   noise).
------------------------------------------------------------------------

    As explained above, exclusion and ZOIs will be established that 
encompass the areas where received underwater sound pressure levels 
(SPLs) exceed the applicable thresholds for Level A and Level B 
harassments. In the case of Bergerson's proposed Front Street Transload 
Facility construction project, the Level B harassment ZOIs for impact 
and vibratory pile driving are at 215 m and 2,900 m from the source, 
respectively. The Level A harassment exclusion from impact pile driving 
is 2.1 m from the source.
    Incidental take is calculated for each species by estimating the 
likelihood of a marine mammal being present within a ZOI during active 
pile removal/driving. Expected marine mammal presence is determined by 
past observations and general abundance near the Front Street Transload 
Facility during the construction window. Ideally, 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, 
and information from state and federal agencies.
    The calculation for marine mammal exposures is estimated by:
    Exposure estimate = N (number of animals in the area) * 30 days of 
pile removal/driving activity
    Estimates include Level B acoustical harassment during pile removal 
and driving. All estimates are conservative, as pile removal/driving 
would not be continuous during the work day. Using this approach, a 
summary of estimated takes of marine mammals incidental to Bergerson's 
Front Street Transload Facility construction work are provided in Table 
5.


[[Page 48507]]



    Table 5--Estimated Numbers of Marine Mammals That May Be Exposed by Level B Harassment From Pile and Pile
                                               Driving Activities
----------------------------------------------------------------------------------------------------------------
                                                         Estimated  marine
                        Species                            mammal  takes        Abundance          Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal....................................                750             16,165               4.64
California sea lion....................................              1,100            296,750               3.71
----------------------------------------------------------------------------------------------------------------

Analysis and Preliminary Determinations

Negligible Impact

    Negligible impact is ``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'' (50 CFR 216.103). 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 must consider 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 harassment takes, 
the number of estimated mortalities, and effects on habitat.
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 5, given that the 
anticipated effects of Bergerson's Front Street Transload Facility 
construction on marine mammals are expected to be relatively similar in 
nature. There is no information about the nature or severity of the 
impacts, or the size, status, or structure of any species or stock that 
would lead to a different analysis for this activity, else species-
specific factors would be identified and analyzed.
    Bergerson's proposed Front Street Transload Facility construction 
project would involve vibratory pile removal and vibratory and impact 
pile driving activities. Elevated underwater noises are expected to be 
generated as a result of these activities. The exclusion zone for Level 
A harassment is extremely small (2.1 m from the source) with the use of 
air bubble curtain system, and with the implementation of the proposed 
monitoring and mitigation measures described above, there would be no 
Level A take of marine mammals. For vibratory pile removal and pile 
driving, noise levels are not expected to reach the level that may 
cause TTS, injury (including PTS), or mortality to marine mammals.
    Additionally, the sum of noise from Bergerson's proposed Front 
Street Transload Facility construction activities is confined to a 
limited area by surrounding landmasses; therefore, the noise generated 
is not expected to contribute to increased ocean ambient noise. In 
addition, due to shallow water depths in the project area, underwater 
sound propagation of low-frequency sound (which is the major noise 
source from pile driving) is expected to be poor.
    In addition, Bergerson's proposed activities are localized and of 
short duration. The entire project area is limited to Bergerson's Front 
Street Transload Facility construction work. The entire project would 
involve the removal of 25 existing piles and installation of 126 piles. 
The duration for pile removal and pile driving would be 30 days. 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. Moreover, the proposed mitigation and 
monitoring measures are expected to reduce potential exposures and 
behavioral modifications even further. Additionally, no important 
feeding and/or reproductive areas for marine mammals are known to be 
near the proposed action area. Therefore, the take resulting from the 
proposed Front Street Transload Facility construction work 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 proposed project area is not a prime habitat for marine 
mammals, nor is it considered an area frequented by marine mammals. 
Therefore, behavioral disturbances that could result from anthropogenic 
noise associated with Bergerson's construction activities are expected 
to affect only a small number of marine mammals on an infrequent and 
limited basis.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. The 
project activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from Bergerson's Front Street Transload Facility 
construction project will have a negligible impact on the affected 
marine mammal species or stocks.

Small Number

    Based on analyses provided above, it is estimated that 
approximately 750 harbor seals and 1,100 California sea lions could be 
exposed to received noise levels that could cause Level B behavioral 
harassment from the proposed construction work at the Front Street 
Transload Facility in Newport, Oregon. These numbers represent 
approximately 4.6% and 3.7% of the populations of harbor seal and 
California sea lion, respectively, that could be affected by Level B 
behavioral harassment, respectively (see Table 5 above), which are 
small percentages relative to the total populations of the affected 
species or stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures,

[[Page 48508]]

which are expected to reduce the number of marine mammals potentially 
affected by the proposed action, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the populations of 
the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no subsistence uses of marine mammals in the proposed 
project area; and, thus, no subsistence uses impacted by this action. 
Therefore, NMFS has determined that the total taking of affected 
species or stocks would not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence 
purposes.

Endangered Species Act (ESA)

    NMFS has determined that issuance of the IHA will have no effect on 
listed marine mammals, as none are known to occur in the action area.

National Environmental Policy Act (NEPA)

    NMFS prepared a draft Environmental Assessment (EA) for the 
proposed issuance of an IHA, pursuant to NEPA, to determine whether or 
not this proposed activity may have a significant effect on the human 
environment. This analysis will be completed prior to the issuance or 
denial of this proposed IHA.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Bergerson for conducting the Front Street Transload 
Facility construction project, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. 
The proposed IHA language is provided next.
    1. This Authorization is valid from November 1, 2015, through 
October 31, 2016.
    2. This Authorization is valid only for activities associated in-
water construction work at the Front Street Transload Facility 
construction project in Newport, Oregon.
    3. (a) The species authorized for incidental harassment takings, 
Level B harassment only, are: Pacific harbor seal (Phoca vitulina 
richardsi) and California sea lion (Zalophus californianus).
    (b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
     Vibratory and impact pile driving;
     Vibratory pile removal; and
     Work associated with above piling activities.
    (c) The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported within 24 hours of the taking to 
the West Coast Administrator (206-526-6150), National Marine Fisheries 
Service (NMFS) and the Chief of the Permits and Conservation Division, 
Office of Protected Resources, NMFS, at (301) 427-8401, or her designee 
(301-427-8401).
    4. The holder of this Authorization must notify the Chief of the 
Permits and Conservation Division, Office of Protected Resources, at 
least 48 hours prior to the start of activities identified in 3(b) 
(unless constrained by the date of issuance of this Authorization in 
which case notification shall be made as soon as possible).
    5. Prohibitions
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a) above and by the numbers listed in 
Table 5. The taking by Level A harassment, injury or death of these 
species or the taking by harassment, injury or death of any other 
species of marine mammal is prohibited and may result in the 
modification, suspension, or revocation of this Authorization.
    (b) The taking of any marine mammal is prohibited whenever the 
required protected species observers (PSOs), required by condition 
7(a), are not present in conformance with condition 7(a) of this 
Authorization.
    6. Mitigation
    (a) Time Restriction
    In-water construction work shall occur only during daylight hours, 
when visual monitoring of marine mammals can be conducted.
    (b) Air Bubble Curtain
    Bergerson shall install an air bubble curtain system around the 
pile during pile installation using an impact hammer.
    (c) Establishment of Level A Exclusion Zone
    Before the commencement of in-water impact pile driving activities, 
Bergerson shall establish Level A exclusion zone where received 
underwater sound pressure levels (SPLs) are higher than 190 dB (rms) re 
1 [micro]Pa. The modeled isopleths for exclusion zone 2.1 m from the 
source.
    (d) Establishment of Level B Harassment Zones of Influence
    Before the commencement of in-water pile driving activities, 
Bergerson shall establish Level B behavioral harassment zones of 
influence (ZOIs) where received underwater sound pressure levels (SPLs) 
are higher than 120 dB (rms) re 1 [micro]Pa for vibratory pile driving 
and pile removal, and 160 dB (rms) re 1 [micro]Pa for impact pile 
driving. The modeled isopleths for vibratory pile driving and pile 
removal ZOI is 2,900 m from the source, and the modeled isopleths for 
impact pile driving ZOI is 215 m from the source.
    (e) Monitoring of marine mammals shall take place starting 30 
minutes before pile driving begins until 30 minutes after pile driving 
ends.
    (f) Soft Start
    (i) When there has been downtime of 30 minutes or more without pile 
driving, the contractor will initiate the driving with ramp-up 
procedures described below.
    (ii) For impact pile driving, the contractor would provide an 
initial set of strikes from the impact hammer at reduced energy, 
followed by a 30-second waiting period, then two subsequent sets.
    (iii) For vibratory pile driving, the contractor will initiate 
noise from vibratory hammers for 15 seconds at reduced energy followed 
by a 30-second waiting period. The procedure shall be repeated two 
additional times.
    (g) Shutdown Measures
    (i) Bergerson shall implement shutdown measures if a marine mammal 
is sighted within or approaching the Level A exclusion zone. In-water 
construction activities shall be suspended until the marine mammal is 
sighted moving away from the exclusion zone, or if the animal is not 
sighted for 30 minutes after the shutdown.
    (ii) Bergerson shall implement shutdown measures if the number of 
any allotted marine mammal takes reaches the limit under the IHA (if 
issued), if such marine mammals are sighted within the vicinity of the 
project area and are approaching the Level B ZOI during pile removal 
activities.
    (iii) Bergerson shall implement shutdown measures if marine mammals 
with the ZOI appear disturbed by the work activity.
    7. Monitoring:
    (a) Protected Species Observers
    Bergerson shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its construction project.
    (i) During pile removal and installation, two land-based protected 
species observers (PSOs) shall monitor the area from the best 
observation points available.
    (ii) If weather conditions prevent adequate land-based observations 
of the entire ensonified zones, boat-based monitoring shall be 
implemented.
    (ii) Experience or training in the field identification of marine 
mammals (cetaceans and pinnipeds).
    (iii) Monitoring of marine mammals around the construction site 
shall be

[[Page 48509]]

conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power).
    (iv) Data collection during marine mammal monitoring would consist 
of a count of all marine mammals by species, a description of behavior 
(if possible), location, direction of movement, type of construction 
that is occurring, time that pile replacement work begins and ends, any 
acoustic or visual disturbance, and time of the observation. 
Environmental conditions such as weather, visibility, temperature, tide 
level, current, and sea state would also be recorded.
    8. Reporting:
    (a) Bergerson shall provide NMFS with a draft monitoring report 
within 90 days of the conclusion of the construction work or within 90 
days of the expiration of the IHA, whichever comes first. This report 
shall detail the monitoring protocol, summarize the data recorded 
during monitoring, and estimate the number of marine mammals that may 
have been harassed.
    (b) If comments are received from the NMFS West Coast Regional 
Administrator or NMFS Office of Protected Resources on the draft 
report, a final report shall 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.
    (c) In the unanticipated event that the construction activities 
clearly cause the take of a marine mammal in a manner prohibited by 
this Authorization (if issued), such as an injury, serious injury, or 
mortality, Bergerson shall immediately cease all operations and 
immediately report the incident to the Chief, Permits and Conservation 
Division, Office of Protected Resources, NMFS, and the West Coast 
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, 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 Bergerson to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Bergerson may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    (E) In the event that Bergerson 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), 
Bergerson will immediately report the incident to the Chief, Permits 
and Conservation Division, Office of Protected Resources, NMFS, and the 
West Coast 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 
Bergerson to determine whether modifications in the activities are 
appropriate.
    (F) In the event that Bergerson 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), Bergerson shall report the 
incident to the Chief, Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinators, within 24 hours of the discovery. Bergerson shall provide 
photographs or video footage (if available) or other documentation of 
the stranded animal sighting to NMFS and the Marine Mammal Stranding 
Network. Bergerson can continue its operations under such a case.
    9. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals, or if there is an 
unmitigable adverse impact on the availability of such species or 
stocks for subsistence uses.
    10. A copy of this Authorization must be in the possession of each 
contractor who performs the construction work at the Front Street 
Transload Facility constructions.

    Dated: August 10, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-19958 Filed 8-12-15; 8:45 am]
BILLING CODE 3510-22-P