[Federal Register Volume 81, Number 72 (Thursday, April 14, 2016)]
[Notices]
[Pages 22050-22058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08587]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE428


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Russian River Estuary Management 
Activities

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the Sonoma County Water Agency (SCWA) to incidentally harass, by Level 
B harassment only, three species of marine mammals during estuary 
management activities conducted at the mouth of the Russian River, 
Sonoma County, California.

DATES: This IHA is effective for the period of one year, from April 21, 
2016, through April 20, 2017.

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

SUPPLEMENTARY INFORMATION:

Availability

    Electronic copies of SCWA's application and any supporting 
documents, as well as a list of the references cited in this document, 
may be obtained by visiting the internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In the case of problems accessing 
these documents, please call the contact listed above. NMFS' 
Environmental Assessment (2010) and associated Finding of No 
Significant Impact, prepared pursuant to the National Environmental 
Policy Act, and NMFS' Biological Opinion (2008) on the effects of 
Russian River management activities on salmonids, prepared pursuant to 
the Endangered Species Act, are also available at the same site.

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 by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified area, the incidental, but not intentional, 
taking of small numbers of marine mammals, providing that certain 
findings are made and the necessary prescriptions are established.
    The incidental taking of small numbers of marine mammals may be 
allowed only if NMFS (through authority delegated by the Secretary) 
finds that the total taking by the specified activity during the 
specified time period will (i) have a negligible impact on the species 
or stock(s) and (ii) not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant). Further, the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such taking 
must be set forth.
    The allowance of such incidental taking under section 101(a)(5)(A), 
by harassment, serious injury, death, or a combination thereof, 
requires that regulations be established. Subsequently, a Letter of 
Authorization may be issued pursuant to the prescriptions established 
in such regulations, providing that the level of taking will be 
consistent with the findings made for the total taking allowable under 
the specific regulations. Under section 101(a)(5)(D), NMFS may 
authorize such incidental taking by harassment only, for periods of not 
more than one year, pursuant to requirements and conditions contained 
within an IHA. The establishment of these prescriptions requires notice 
and opportunity for public comment.
    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.'' Except with respect to certain activities 
not pertinent here, section 3(18) of 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].''

Summary of Request

    On January 20, 2016, we received an adequate and complete request 
from SCWA for authorization of the taking of marine mammals incidental 
to Russian River estuary management activities in

[[Page 22051]]

Sonoma County, California. SCWA plans to continue ongoing actions 
necessary to manage the naturally-formed barrier beach at the mouth of 
the Russian River in order to minimize potential for flooding adjacent 
to the estuary and to enhance habitat for juvenile salmonids, as well 
as to conduct biological and physical monitoring of the barrier beach 
and estuary. Flood control-related breaching of barrier beach at the 
mouth of the river may include artificial breaches, as well as 
construction and maintenance of a lagoon outlet channel. The latter 
activity, an alternative management technique conducted to mitigate 
impacts of flood control on rearing habitat for Endangered Species Act 
(ESA)-listed salmonids, occurs only from May 15 through October 15 
(hereafter, the ``lagoon management period''). Artificial breaching and 
monitoring activities may occur at any time during the one-year period 
of validity of the IHA.
    Breaching of naturally-formed barrier beach at the mouth of the 
Russian River requires the use of heavy equipment (e.g., bulldozer, 
excavator) and increased human presence, and monitoring in the estuary 
requires the use of small boats. As a result, pinnipeds hauled out on 
the beach or at peripheral haul-outs in the estuary may exhibit 
behavioral responses that indicate incidental take by Level B 
harassment under the MMPA. Species known from the haul-out at the mouth 
of the Russian River or from peripheral haul-outs, and therefore 
anticipated to be taken incidental to the specified activity, include 
the harbor seal (Phoca vitulina richardii), California sea lion 
(Zalophus californianus), and northern elephant seal (Mirounga 
angustirostris).
    This is the seventh such IHA issued to SCWA. SCWA was first issued 
an IHA, valid for a period of one year, effective on April 1, 2010 (75 
FR 17382), and was subsequently issued one-year IHAs for incidental 
take associated with the same activities, effective on April 21, 2011 
(76 FR 23306), April 21, 2012 (77 FR 24471), April 21, 2013 (78 FR 
23746), April 21, 2014 (79 FR 20180), and April 21, 2015 (80 FR 24237).

Description of the Specified Activity

    Additional detail regarding the specified activity was provided in 
our Federal Register notice of proposed authorization (81 FR 8924; 
February 23, 2016) and in past notices cited herein; please see those 
documents or SCWA's application for more information.

Overview

    The planned action involves management of the estuary to prevent 
flooding while preventing adverse modification to critical habitat for 
ESA-listed salmonids. Requirements related to the ESA are described in 
further detail below. During the lagoon management period, this 
involves construction and maintenance of a lagoon outlet channel that 
would facilitate formation of a perched lagoon. A perched lagoon, which 
is an estuary closed to tidal influence in which water surface 
elevation is above mean high tide, reduces flooding while maintaining 
beneficial conditions for juvenile salmonids. Additional breaches of 
barrier beach may be conducted for the sole purpose of reducing flood 
risk. SCWA's planned activity was described in detail in our notice of 
proposed authorization prior to the 2011 IHA (76 FR 14924; March 18, 
2011); please see that document for a detailed description of SCWA's 
estuary management activities. Aside from minor additions to SCWA's 
biological and physical estuary monitoring measures, the specified 
activity remains the same as that described in the 2011 document.

Dates and Duration

    The specified activity may occur at any time during the one-year 
timeframe (April 21, 2016, through April 20, 2017) of the IHA, although 
construction and maintenance of a lagoon outlet channel will occur only 
during the lagoon management period. In addition, there are certain 
restrictions placed on SCWA during the harbor seal pupping season. 
These, as well as periodicity and frequency of the specified 
activities, are described in further detail below.

Specific Geographic Region

    The estuary is located about 97 km (60 mi) northwest of San 
Francisco in Sonoma County, near Jenner, California (see Figure 1 of 
SCWA's application). The Russian River watershed encompasses 3,847 
km\2\ (1,485 mi\2\) in Sonoma, Mendocino, and Lake Counties. The mouth 
of the Russian River is located at Goat Rock State Beach (see Figure 2 
of SCWA's application); the estuary extends from the mouth upstream 
approximately 10 to 11 km (6-7 mi) between Austin Creek and the 
community of Duncans Mills (Heckel and McIver, 1994).

Detailed Description of Activities

    Within the Russian River watershed, the U.S. Army Corps of 
Engineers (Corps), SCWA and the Mendocino County Russian River Flood 
Control and Water Conservation Improvement District (District) operate 
and maintain federal facilities and conduct activities in addition to 
the estuary management, including flood control, water diversion and 
storage, instream flow releases, hydroelectric power generation, 
channel maintenance, and fish hatchery production. As described in the 
notice of proposed IHA, NMFS issued a 2008 Biological Opinion (BiOp) 
for Water Supply, Flood Control Operations, and Channel Maintenance 
conducted by the Corps, SCWA and the District in the Russian River 
watershed (NMFS, 2008). This BiOp found that the activities--including 
SCWA's estuary management activities prior to the BiOp--authorized by 
the Corps and undertaken by SCWA and the District, if continued in a 
manner similar to recent historic practices, were likely to jeopardize 
the continued existence of ESA-listed salmonids and were likely to 
adversely modify critical habitat. In part, therefore, the BiOp 
requires SCWA to collaborate with NMFS and modify their estuary water 
level management in order to reduce marine influence (i.e., high 
salinity and tidal inflow) and promote a higher water surface elevation 
in the estuary in order to enhance the quality of rearing habitat for 
juvenile salmonids. SCWA is also required to monitor the response of 
water quality, invertebrate production, and salmonids in and near the 
estuary to water surface elevation management in the estuary-lagoon 
system.
    There are three components to SCWA's ongoing estuary management 
activities: (1) Lagoon outlet channel management, during the lagoon 
management period only, required to accomplish the dual purposes of 
flood risk abatement and maintenance of juvenile salmonid habitat; (2) 
traditional artificial breaching, with the sole objective of flood risk 
abatement; and (3) physical and biological monitoring in and near the 
estuary, required under the terms of the BiOp, to understand response 
to water surface elevation management in the estuary-lagoon system. The 
latter category (physical and biological monitoring) includes all 
ancillary beach and/or estuary monitoring activities, including 
topographic and geophysical beach surveys and biological and physical 
habitat monitoring in the estuary. Please see the previously referenced 
Federal Register notice (76 FR 14924; March 18, 2011) for detailed 
discussion of lagoon outlet channel management, artificial breaching, 
and other physical and biological monitoring activities, as well as our 
in our Federal Register notice of proposed authorization for this

[[Page 22052]]

authorization (81 FR 8924; February 23, 2016) for descriptions of minor 
changes to physical and biological monitoring activities.

Comments and Responses

    We published a notice of receipt of SCWA's application and proposed 
IHA in the Federal Register on February 23, 2016 (81 FR 8924). During 
the thirty-day comment period, we received a letter from the Marine 
Mammal Commission (Commission). The Commission recommends that we issue 
the requested authorization, subject to inclusion of the proposed 
mitigation and monitoring measures as described in our notice of 
proposed IHA and the application. All measures proposed in the initial 
Federal Register notice are included within the IHA.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species that may be harassed incidental to 
estuary management activities are the harbor seal, California sea lion, 
and the northern elephant seal. We presented a detailed discussion of 
the status of these stocks and their occurrence in the action area in 
the notice of the proposed IHA (81 FR 8924; February 23, 2016).
    Ongoing monthly harbor seal counts at the Jenner haul-out were 
begun by J. Mortenson in January 1987, with additional nearby haul-outs 
added to the counts thereafter. In addition, local resident E. Twohy 
began daily observations of seals and people at the Jenner haul-out in 
November 1989. These datasets note whether the mouth at the Jenner 
haul-out was opened or closed at each observation, as well as various 
other daily and annual patterns of haul-out usage (Mortenson and Twohy, 
1994). Recently, SCWA began regular baseline monitoring of the haul-out 
as a component of its estuary management activity. In the notice of 
proposed IHA, we presented average daily numbers of seals observed at 
the mouth of the Russian River from 1993-2005 and from 2009-15 (see 
Table 1; 81 FR 8924; February 23, 2016).

Potential Effects of the Specified Activity on Marine Mammals

    We provided a detailed discussion of the potential effects of the 
specified activity on marine mammals in the notice of the proposed IHA 
(81 FR 8924; February 23, 2016). A summary of anticipated effects is 
provided below.
    A significant body of monitoring data exists for pinnipeds at the 
mouth of the Russian River. In addition, pinnipeds have co-existed with 
regular estuary management activity for decades as well as with regular 
human use activity at the beach, and are likely habituated to human 
presence and activity. Nevertheless, SCWA's estuary management 
activities have the potential to disturb pinnipeds present on the beach 
or at peripheral haul-outs in the estuary. During breaching operations, 
past monitoring has revealed that some or all of the seals present 
typically move or flush from the beach in response to the presence of 
crew and equipment, though some may remain hauled-out. No stampeding of 
seals--a potentially dangerous occurrence in which large numbers of 
animals succumb to mass panic and rush away from a stimulus--has been 
documented since SCWA developed protocols to prevent such events in 
1999. While it is likely impossible to conduct required estuary 
management activities without provoking some response in hauled-out 
animals, precautionary mitigation measures, described later in this 
document, ensure that animals are gradually apprised of human approach. 
Under these conditions, seals typically exhibit a continuum of 
responses, beginning with alert movements (e.g., raising the head), 
which may then escalate to movement away from the stimulus and possible 
flushing into the water. Flushed seals typically re-occupy the haul-out 
within minutes to hours of the stimulus. In addition, eight other haul-
outs exist nearby that may accommodate flushed seals. In the absence of 
appropriate mitigation measures, it is possible that pinnipeds could be 
subject to injury, serious injury, or mortality, likely through 
stampeding or abandonment of pups.
    California sea lions and northern elephant seals, which have been 
noted only infrequently in the action area, have been observed as less 
sensitive to stimulus than harbor seals during monitoring at numerous 
other sites. For example, monitoring of pinniped disturbance as a 
result of abalone research in the Channel Islands showed that while 
harbor seals flushed at a rate of 69 percent, California sea lions 
flushed at a rate of only 21 percent. The rate for elephant seals 
declined to 0.1 percent (VanBlaricom, 2011). In the event that either 
of these species is present during management activities, they would be 
expected to display a minimal reaction to maintenance activities--less 
than that expected of harbor seals.
    Although the Jenner haul-out is not known as a primary pupping 
beach, harbor seal pups have been observed during the pupping season; 
therefore, we have evaluated the potential for injury, serious injury 
or mortality to pups. There is a lack of published data regarding 
pupping at the mouth of the Russian River, but SCWA monitors have 
observed pups on the beach. No births were observed during recent 
monitoring, but were inferred based on signs indicating pupping (e.g., 
blood spots on the sand, birds consuming possible placental remains). 
Pup injury or mortality would be most likely to occur in the event of 
extended separation of a mother and pup, or trampling in a stampede. As 
discussed previously, no stampedes have been recorded since development 
of appropriate protocols in 1999. Any California sea lions or northern 
elephant seals present would be independent juveniles or adults; 
therefore, analysis of impacts on pups is not relevant for those 
species.
    Similarly, the period of mother-pup bonding, critical time needed 
to ensure pup survival and maximize pup health, is not expected to be 
impacted by estuary management activities. Harbor seal pups are 
extremely precocious, swimming and diving immediately after birth and 
throughout the lactation period, unlike most other phocids which 
normally enter the sea only after weaning (Lawson and Renouf, 1985; 
Cottrell et al., 2002; Burns et al., 2005). Lawson and Renouf (1987) 
investigated harbor seal mother-pup bonding in response to natural and 
anthropogenic disturbance. In summary, they found that the most 
critical bonding time is within minutes after birth. Although pupping 
season is defined as March 15-June 30, the peak of pupping season is 
typically concluded by mid-May, when the lagoon management period 
begins. As such, it is expected that most mother-pup bonding would 
likely be concluded as well. The number of management events during the 
months of March and April has been relatively low in the past, and the 
breaching activities occur in a single day over several hours. In 
addition, mitigation measures described later in this document further 
reduce the likelihood of any impacts to pups, whether through injury or 
mortality or interruption of mother-pup bonding.
    In summary, and based on extensive monitoring data, we believe that 
impacts to hauled-out pinnipeds during estuary management activities 
would be behavioral harassment of limited duration (i.e., less than one 
day) and limited intensity (i.e., temporary flushing at most). 
Stampeding, and therefore injury or mortality, is not expected--nor 
been documented--in the years since appropriate protocols were 
established (see Mitigation for more details). Further, the continued,

[[Page 22053]]

and increasingly heavy (see SCWA's monitoring report), use of the haul-
out despite decades of breaching events indicates that abandonment of 
the haul-out is unlikely.

Anticipated Effects on Habitat

    We provided a detailed discussion of the potential effects of this 
action on marine mammal habitat in the notice of the proposed IHA (81 
FR 8924; February 23, 2016). SCWA's estuary management activities will 
result in temporary physical alteration of the Jenner haul-out. With 
barrier beach closure, seal usage of the beach haul-out declines, and 
the three nearby river haul-outs may not be available for usage due to 
rising water surface elevations. Breaching of the barrier beach, 
subsequent to the temporary habitat disturbance, will likely increase 
suitability and availability of habitat for pinnipeds. Biological and 
water quality monitoring will not physically alter pinniped habitat.
    In summary, there will be temporary physical alteration of the 
beach. However, natural opening and closure of the beach results in the 
same impacts to habitat; therefore, seals are likely adapted to this 
cycle. In addition, the increase in rearing habitat quality has the 
goal of increasing salmonid abundance, ultimately providing more food 
for seals present within the action area. Thus, any impacts to marine 
mammal habitat are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.

Mitigation

    In order to issue an IHA 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 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.
    SCWA will continue the following mitigation measures, as 
implemented during the previous IHAs, designed to minimize impact to 
affected species and stocks:
     SCWA crews will cautiously approach (e.g., walking slowly 
with limited arm movement and minimal sound) the haul-out ahead of 
heavy equipment to minimize the potential for sudden flushes, which may 
result in a stampede--a particular concern during pupping season.
     SCWA staff will avoid walking or driving equipment through 
the seal haul-out.
     Crews on foot will make an effort to be seen by seals from 
a distance, if possible, rather than appearing suddenly at the top of 
the sandbar, again preventing sudden flushes.
     During breaching events, all monitoring will be conducted 
from the overlook on the bluff along Highway 1 adjacent to the haul-out 
in order to minimize potential for harassment.
     A water level management event may not occur for more than 
two consecutive days unless flooding threats cannot be controlled.
    In addition, SCWA will continue mitigation measures specific to 
pupping season (March 15-June 30), as implemented in the previous IHA:
     SCWA will maintain a one-week no-work period between water 
level management events (unless flooding is an immediate threat) to 
allow for an adequate disturbance recovery period. During the no-work 
period, equipment must be removed from the beach.
     If a pup less than one week old is on the beach where 
heavy machinery will be used or on the path used to access the work 
location, the management action will be delayed until the pup has left 
the site or the latest day possible to prevent flooding while still 
maintaining suitable fish rearing habitat. In the event that a pup 
remains present on the beach in the presence of flood risk, SCWA will 
consult with NMFS to determine the appropriate course of action. SCWA 
will coordinate with the locally established seal monitoring program 
(Stewards' Seal Watch) to determine if pups less than one week old are 
on the beach prior to a breaching event.
     Physical and biological monitoring (including topographic 
and geophysical beach surveys) will not be conducted if a pup less than 
one week old is present at the monitoring site or on a path to the 
site.
     Any jetty study activities in the vicinity of the harbor 
seal haul-out will not occur during the pupping season.
    Equipment will be driven slowly on the beach and care will be taken 
to minimize the number of shutdowns and start-ups when the equipment is 
on the beach. All work will be completed as efficiently as possible, 
with the smallest amount of heavy equipment possible, to minimize 
disturbance of seals at the haul-out. Boats operating near river haul-
outs during monitoring will be kept within posted speed limits and 
driven as far from the haul-outs as safely possible to minimize 
flushing seals.
    We have carefully evaluated SCWA's planned mitigation measures and 
considered their effectiveness in past implementation to determine 
whether they are likely to effect 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: (1) The manner in which, 
and the degree to which, the successful implementation of the measure 
is expected to minimize adverse impacts to marine mammals, (2) the 
proven or likely efficacy of the specific measure to minimize adverse 
impacts as planned; and (3) the practicability of the measure for 
applicant implementation.
    Any mitigation measure(s) we prescribe 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:
     Avoidance or minimization of injury or death of marine 
mammals wherever possible (goals 2, 3, and 4 may contribute to this 
goal).
     A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
     A reduction in the number (total number or number at 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
     A reduction in the intensity of exposure to stimuli 
expected to result in incidental take (this goal may contribute to 1, 
above, or to reducing the severity of behavioral harassment only).
     Avoidance or minimization of adverse effects to marine 
mammal habitat, paying particular attention to the prey base, blockage 
or limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time.
     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 SCWA's planned measures and on SCWA's 
record of management at the mouth of

[[Page 22054]]

the Russian River including information from monitoring of SCWA's 
implementation of the mitigation measures as prescribed under the 
previous IHAs, we have determined that the planned mitigation 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

    In order to issue an IHA 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 
incidental take authorizations 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.
    Any monitoring requirement we prescribe should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within defined zones of effect (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 stimuli that we associate with specific adverse 
effects, such as behavioral harassment or hearing threshold shifts;
    3. An increase in our understanding of how marine mammals respond 
to stimuli expected to result in incidental take and how anticipated 
adverse effects on individuals may impact the population, stock, or 
species (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 pertinent information, e.g., received level, 
distance from source);
     Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict pertinent information, e.g., received level, 
distance from source);
     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; or
    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.
    SCWA submitted a marine mammal monitoring plan as part of the IHA 
application. It can be found on the Internet at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The plan has been successfully 
implemented (in slightly different form from the currently proposed 
plan) by SCWA under previous IHAs. The purpose of this monitoring plan, 
which is carried out collaboratively with the Stewards of the Coasts 
and Redwoods (Stewards) organization, is to detect the response of 
pinnipeds to estuary management activities at the Russian River 
estuary. SCWA has designed the plan both to satisfy the requirements of 
the IHA, and to address the following questions of interest:
    1. Under what conditions do pinnipeds haul out at the Russian River 
estuary mouth at Jenner?
    2. How do seals at the Jenner haul-out respond to activities 
associated with the construction and maintenance of the lagoon outlet 
channel and artificial breaching activities?
    3. Does the number of seals at the Jenner haul-out significantly 
differ from historic averages with formation of a summer (May 15 to 
October 15) lagoon in the Russian River estuary?
    4. Are seals at the Jenner haul-out displaced to nearby river and 
coastal haul-outs when the mouth remains closed in the summer?

Monitoring Measures

    SCWA plans to modify the baseline monitoring component of their 
existing 2011 Monitoring Plan in order to better focus monitoring 
effort on the Jenner haul-out. This primary haul-out is where the 
majority of seals are found and where pupping occurs, and SCWA believes 
that the modifications will better allow continued development in 
understanding the physical and biological factors that influence seal 
abundance and behavior at the site. In particular, SCWA notes that 
increasing the frequency of surveys will allow them to be able to 
observe the influence of physical changes that do not persist for more 
than ten days, like brief periods of barrier beach closures or other 
environmental changes. The changes will improve SCWA's ability to 
describe how seals respond to barrier beach closures and allow for more 
accurate estimation of the number of harbor seal pups born at Jenner 
each year.
    Regarding decreased frequency of monitoring at peripheral sites, 
abundance at these sites has been observed to generally be very low 
regardless of river mouth condition. These sites are generally very 
small physically, composed of small rocks or outcrops or logs in the 
river, and therefore could not accommodate significant displacement 
from the main beach haul-out. Monitoring of peripheral sites under 
extended lagoon conditions will allow for possible detection of any 
changed use patterns. In summary, the modifications include increasing 
the frequency of surveys at the Jenner haul-out from twice a month to 
four times a month and reducing the duration of each survey from eight 
to four hours. Baseline visits to the peripheral haul-outs will be 
eliminated except in the case that a lagoon outlet channel is 
constructed and maintained for a prolonged period (over 21 days).
    Baseline Monitoring--As noted above, seals at the Jenner haul-out 
are counted for four hours every week, with no more than four baseline 
surveys each month. Two monitoring events each month will occur in the 
morning and two will occur in the afternoon with an effort to schedule 
a morning survey at low and high tide each month and an afternoon 
survey at low and high tide each month. This baseline information will 
provide SCWA with details that may help to plan estuary management 
activities in the future to minimize pinniped interaction. This census 
begins at local dawn and continues for eight hours. Survey protocols 
are unchanged: All seals hauled out on the beach are counted every 
thirty minutes from the overlook on the bluff along Highway 1 adjacent 
to the haul-out using spotting scopes. Monitoring may conclude for the 
day if weather conditions affect visibility (e.g., heavy fog in the 
afternoon). Depending on how the sandbar is formed, seals may haul out 
in multiple groups at the mouth. At each thirty-minute count, the 
observer indicates where groups of seals are hauled out on the sandbar 
and provides a total count for each group. If possible, adults and pups 
are counted separately.
    In addition to the census data, disturbances of the haul-out are 
recorded. The method for recording disturbances follows those in 
Mortenson (1996). Disturbances will be recorded on a three-point scale 
that represents an increasing seal response to the disturbance. The 
time, source, and duration of the disturbance, as well as an estimated 
distance between the source and haul-out, are recorded. It

[[Page 22055]]

should be noted that only responses falling into Mortenson's Levels 2 
and 3 (i.e., movement or flight) will be considered as harassment under 
the MMPA under the terms of the IHA. Weather conditions are recorded at 
the beginning of each census. These include temperature, Beaufort sea 
state, precipitation/visibility, and wind speed. Tide levels and 
estuary water surface elevations are correlated to the monitoring start 
and end times.
    In an effort towards understanding possible relationships between 
use of the Jenner haul-out and nearby coastal and river haul-outs, 
several other haul-outs on the coast and in the Russian River estuary 
are monitored as well (see Figure 1 of SCWA's monitoring plan). As 
described above, peripheral site monitoring will occur only in the 
event of an extended period of lagoon conditions (i.e., barrier beach 
closed with perched outlet channel).
    Estuary Management Event Monitoring--Activities associated with 
artificial breaching or initial construction of the outlet channel, as 
well as the maintenance of the channel that may be required, will be 
monitored for disturbances to the seals at the Jenner haul-out. A one-
day pre-event channel survey will be made within one to three days 
prior to constructing the outlet channel. The haul-out will be 
monitored on the day the outlet channel is constructed and daily for up 
to the maximum two days allowed for channel excavation activities. 
Monitoring will also occur on each day that the outlet channel is 
maintained using heavy equipment for the duration of the lagoon 
management period. Monitoring will correspond with that described under 
the ``Baseline'' section previously, with the exception that management 
activity monitoring duration is defined by event duration. On the day 
of the management event, pinniped monitoring begins at least one hour 
prior to the crew and equipment accessing the beach work area and 
continues through the duration of the event, until at least one hour 
after the crew and equipment leave the beach.
    In an attempt to understand whether seals from the Jenner haul-out 
are displaced to coastal and river haul-outs nearby when management 
events occur, other nearby haul-outs are monitored concurrently with 
monitoring of outlet channel construction and maintenance activities. 
This provides an opportunity to qualitatively assess whether these 
haul-outs are being used by seals displaced from the Jenner haul-out. 
This monitoring will not provide definitive results regarding 
displacement to nearby coastal and river haul-outs, as individual seals 
are not marked, but is useful in tracking general trends in haul-out 
use during disturbance. As volunteers are required to monitor these 
peripheral haul-outs, haul-out locations may need to be prioritized if 
there are not enough volunteers available. In that case, priority will 
be assigned to the nearest haul-outs (North Jenner and Odin Cove), 
followed by the Russian River estuary haul-outs, and finally the more 
distant coastal haul-outs.
    For all counts, the following information will be recorded in 
thirty-minute intervals: (1) Pinniped counts, by species; (2) behavior; 
(3) time, source and duration of any disturbance; (4) estimated 
distances between source of disturbance and pinnipeds; (5) weather 
conditions (e.g., temperature, wind); and (5) tide levels and estuary 
water surface elevation.
    Monitoring During Pupping Season--As described previously, the 
pupping season is defined as March 15 to June 30. Baseline, lagoon 
outlet channel, and artificial breaching monitoring during the pupping 
season will include records of neonate (pups less than one week old) 
observations. Characteristics of a neonate pup include: Body weight 
less than 15 kg; thin for their body length; an umbilicus or natal 
pelage present; wrinkled skin; and awkward or jerky movements on land. 
SCWA will coordinate with the Seal Watch monitoring program to 
determine if pups less than one week old are on the beach prior to a 
water level management event.
    If, during monitoring, observers sight any pup that might be 
abandoned, SCWA will contact the NMFS stranding response network 
immediately and also report the incident to NMFS' West Coast Regional 
Office and Office of Protected Resources within 48 hours. Observers 
will not approach or move the pup. Potential indications that a pup may 
be abandoned are no observed contact with adult seals, no movement of 
the pup, and the pup's attempts to nurse are rebuffed.

Reporting

    SCWA is required to submit a report on all activities and marine 
mammal monitoring results to the Office of Protected Resources, NMFS, 
and the West Coast Regional Administrator, NMFS, 90 days prior to the 
expiration of the IHA if a renewal is sought, or within 90 days of the 
expiration of the permit otherwise. This annual report will also be 
distributed to California State Parks and Stewards, and would be 
available to the public on SCWA's Web site. This report will contain 
the following information:
     The number of pinnipeds taken, by species and age class 
(if possible);
     Behavior prior to and during water level management 
events;
     Start and end time of activity;
     Estimated distances between source and pinnipeds when 
disturbance occurs;
     Weather conditions (e.g., temperature, wind);
     Haul-out reoccupation time of any pinnipeds based on post-
activity monitoring;
     Tide levels and estuary water surface elevation; and
     Seal census from bi-monthly and nearby haul-out 
monitoring.
    The annual report includes descriptions of monitoring methodology, 
tabulation of estuary management events, summary of monitoring results, 
and discussion of problems noted and proposed remedial measures. SCWA 
will report any injured or dead marine mammals to NMFS' West Coast 
Regional Office and Office of Protected Resources.

Summary of Previous Monitoring

    SCWA complied with the mitigation and monitoring required under all 
previous authorizations. In accordance with the 2015 IHA, SCWA 
submitted a Report of Activities and Monitoring Results, covering the 
period of January 1 through December 31, 2015. Previous monitoring 
reports (available at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm) provided additional analysis of monitoring results 
from 2009-14. A barrier beach was formed eleven times during 2015, but 
SCWA was required to implement artificial breaching for only four of 
these closure events. The Russian River outlet was closed to the ocean 
for a total of 115 days in 2015, including extended closures totaling 
49 days during the lagoon management period. However, these closures 
all culminated in natural breaches and no outlet channel management 
events were required (although one closure that began on October 10, 
before the end of the lagoon management period, led to an artificial 
breaching event after the close of the management period on November 
2). Over the past twenty years, there has been an average of five 
artificial breaching events per year. Only one lagoon management event 
has occurred since the current lagoon management period and process was 
instituted in 2009. For all events, pinniped monitoring occurred no 
more than three days before, the day of, and the day after each water 
level management activity. In addition, SCWA conducted biological and 
physical monitoring as described

[[Page 22056]]

previously. During the course of these activities, SCWA did not exceed 
the take levels authorized under the relevant IHAs. We provided a 
detailed description of previous monitoring results in the notice of 
the proposed IHA (81 FR 8924; February 23, 2016).

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of 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].''
    We are authorizing SCWA to take harbor seals, California sea lions, 
and northern elephant seals, by Level B harassment only, incidental to 
estuary management activities. These activities, involving increased 
human presence and the use of heavy equipment and support vehicles, are 
expected to harass pinnipeds present at the haul-out through behavioral 
disturbance only. In addition, monitoring activities prescribed in the 
BiOp may result in harassment of additional individuals at the Jenner 
haul-out and at the three haul-outs located in the estuary. Estimates 
of the number of harbor seals, California sea lions, and northern 
elephant seals that may be harassed by the activities is based upon the 
number of potential events associated with Russian River estuary 
management activities and the average number of individuals of each 
species that are present during conditions appropriate to the activity. 
As described previously in this document, monitoring effort at the 
mouth of the Russian River has shown that the number of seals utilizing 
the haul-out declines during bar-closed conditions. Tables 1 and 2 
detail the total number of authorized takes. Methodology of take 
estimation was discussed in detail in our notice of proposed IHA (81 FR 
8924; February 23, 2016).

  Table 1--Estimated Number of Harbor Seal Takes Resulting From Russian
                   River Estuary Management Activities
------------------------------------------------------------------------
                                                         Potential total
                                                            number of
Number of animals expected   Number of events \b\ \c\      individual
       to occur \a\                                     animals that may
                                                            be taken
------------------------------------------------------------------------
         Lagoon Outlet Channel Management (May 15 to October 15)
------------------------------------------------------------------------
Implementation: 117 \d\     Implementation: 3           Implementation:
                                                         351
Maintenance and             Maintenance:                Maintenance:
 Monitoring:                                             1,156
    May: 80                    May: 1
    June: 98                   June-Sept: 4/month
    July: 117                  Oct: 1
                              ------------------------------------------
    Aug: 17                 Monitoring:                 Monitoring: 552
    Sept: 30                   June-Sept: 2/month
    Oct: 28                    Oct: 1
                                                       -----------------
                            ..........................       Total:
                                                              2,059
------------------------------------------------------------------------
                          Artificial Breaching
------------------------------------------------------------------------
    Oct: 28                    Oct: 2                      Oct: 56
    Nov: 32                    Nov: 2                      Nov: 64
    Dec: 59                    Dec: 2                      Dec: 118
    Jan: 49                    Jan: 1                      Jan: 49
    Feb: 75                    Feb: 1                      Feb: 75
    Mar: 133                   Mar: 1                      Mar: 133
    Apr: 99                    Apr: 1                      Apr: 99
    May: 80                    May: 2                      May: 160
                                                          --------------
                               12 events maximum             Total: 754
------------------------------------------------------------------------
                Topographic and Geophysical Beach Surveys
------------------------------------------------------------------------
    Jan: 89                 1 topographic survey/          Jan: 89
    Feb: 173                 month; 100 percent of      Feb: 173
    Mar: 183                 animals present Jun-Feb;   Mar: 18
    Apr: 136                 10 percent of animals      Apr: 14
    May: 154                 present Mar-May            May: 15
                            Jetty well removal; 2 days
    Jun: 170                ..........................     Jun: 170
    Jul: 345                ..........................     Jul: 345
    Aug: 143                ..........................     Aug: 143
    Sep: 59                 ..........................     Sep: 59
    Oct: 37                 ..........................     Oct: 37
    Nov: 37                 ..........................     Nov: 37
    Dec: 134                ..........................     Dec: 134
                                                        Jetty work: 252
                                                         \f\
                                                       -----------------
                            ..........................       Total:
                                                              1,486
------------------------------------------------------------------------
        Biological and Physical Habitat Monitoring in the Estuary
------------------------------------------------------------------------
1 \e\                       165                         165
                                                       -----------------
    Total                   ..........................  4,464
------------------------------------------------------------------------
\a\ For Lagoon Outlet Channel Management and Artificial Breaching,
  average daily number of animals corresponds with data from Table 2.
  For Topographic and Geophysical Beach Surveys, average daily number of
  animals corresponds with 2013-15 data from Table 1.

[[Page 22057]]

 
\b\ For implementation of the lagoon outlet channel, an event is defined
  as a single, two-day episode. It is assumed that the same individual
  seals would be hauled out during a single event. For the remaining
  activities, an event is defined as a single day on which an activity
  occurs. Some events may include multiple activities.
\c\ Number of events for artificial breaching derived from historical
  data. The average number of events for each month was rounded up to
  the nearest whole number; estimated number of events for December was
  increased from one to two because multiple closures resulting from
  storm events have occurred in recent years during that month. These
  numbers likely represent an overestimate, as the average annual number
  of events is five.
\d\ Although implementation could occur at any time during the lagoon
  management period, the highest daily average per month from the lagoon
  management period was used.
\e\ Based on past experience, SCWA expects that no more than one seal
  may be present, and thus have the potential to be disturbed, at each
  of the three river haul-outs.
\f\ Jetty well removal is expected to require two days, but the specific
  timing of the event within a window from July-December cannot be
  predicted. Therefore, we use the average of the monthly averages for
  those months (126) to estimate potential take from this activity.


  Table 2--Estimated Number of California Sea Lion and Elephant Seal Takes Resulting From Russian River Estuary
                                              Management Activities
----------------------------------------------------------------------------------------------------------------
                                                                                                     Potential
                                                                     Number of                     total number
                             Species                                  animals        Number of     of individual
                                                                    expected to     events \a\     animals that
                                                                     occur \a\                     may be taken
----------------------------------------------------------------------------------------------------------------
                             Lagoon Outlet Channel Management (May 15 to October 15)
----------------------------------------------------------------------------------------------------------------
California sea lion (potential to encounter once per event).....               1               6               6
Northern elephant seal (potential to encounter once per event)..               1               6               6
----------------------------------------------------------------------------------------------------------------
                                              Artificial Breaching
----------------------------------------------------------------------------------------------------------------
California sea lion (potential to encounter once per month, Oct-               1               8               8
 May)...........................................................
Northern elephant seal (potential to encounter once per month,                 1               8               8
 Oct-May).......................................................
----------------------------------------------------------------------------------------------------------------
                                    Topographic and Geophysical Beach Surveys
----------------------------------------------------------------------------------------------------------------
California sea lion (potential to encounter once per month year-               1              12              12
 round for topographical surveys)...............................
Northern elephant seal (potential to encounter once per month                  1              12              12
 year-round for topographical surveys)..........................
----------------------------------------------------------------------------------------------------------------
                     Biological and Physical Habitat Monitoring in the Estuary + Jetty Study
----------------------------------------------------------------------------------------------------------------
California sea lion (potential to encounter once per month, Jul-               1              10              10
 Feb)...........................................................
Northern elephant seal (potential to encounter once per month,                 1              10              10
 Jul-Feb).......................................................
                                                                 -----------------------------------------------
Total:
    California sea lion.........................................  ..............  ..............              36
    Elephant seal...............................................  ..............  ..............              36
----------------------------------------------------------------------------------------------------------------
\a\ SCWA expects that California sea lions and/or northern elephant seals could occur during any month of the
  year, but that any such occurrence would be infrequent and unlikely to occur more than once per month.

Analyses and Determinations

Negligible Impact Analysis

    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.'' 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, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Although SCWA's estuary management activities may disturb pinnipeds 
hauled out at the mouth of the Russian River, as well as those hauled 
out at several locations in the estuary during recurring monitoring 
activities, impacts are occurring to a small, localized group of 
animals. While these impacts can occur year-round, they occur 
sporadically and for limited duration (e.g., a maximum of two 
consecutive days for water level management events). Seals will likely 
become alert or, at most, flush into the water in reaction to the 
presence of crews and equipment on the beach. While disturbance may 
occur during a sensitive time (during the March 15-June 30 pupping 
season), mitigation measures have been specifically designed to further 
minimize harm during this period and eliminate the possibility of pup 
injury or mother-pup separation.
    No injury, serious injury, or mortality is anticipated, nor is the 
proposed action likely to result in long-term impacts such as permanent 
abandonment of the haul-out. Injury, serious injury, or mortality to 
pinnipeds would likely result from startling animals inhabiting the 
haul-out into a stampede reaction, or from extended mother-pup 
separation as a result of such a stampede. Long-term impacts to 
pinniped usage of the haul-out could result from significantly 
increased presence of humans and equipment on the beach. To avoid these 
possibilities, we have worked with SCWA to develop the previously 
described mitigation measures. These are designed to reduce the 
possibility of startling pinnipeds, by gradually apprising them of the 
presence of humans and equipment on

[[Page 22058]]

the beach, and to reduce the possibility of impacts to pups by 
eliminating or altering management activities on the beach when pups 
are present and by setting limits on the frequency and duration of 
events during pupping season. During the past fifteen years of flood 
control management, implementation of similar mitigation measures has 
resulted in no known stampede events and no known injury, serious 
injury, or mortality. Over the course of that time period, management 
events have generally been infrequent and of limited duration.
    No pinniped stocks for which incidental take is authorized are 
listed as threatened or endangered under the ESA or determined to be 
strategic or depleted under the MMPA. Recent data suggests that harbor 
seal populations have reached carrying capacity; populations of 
California sea lions and northern elephant seals in California are also 
considered healthy. In summary, and based on extensive monitoring data, 
we believe that impacts to hauled-out pinnipeds during estuary 
management activities would be behavioral harassment of limited 
duration (i.e., less than one day) and limited intensity (i.e., 
temporary flushing at most). Stampeding, and therefore injury or 
mortality, is not expected--nor been documented--in the years since 
appropriate protocols were established (see Mitigation for more 
details). Further, the continued, and increasingly heavy (see figures 
in SCWA documents), use of the haul-out despite decades of breaching 
events indicates that abandonment of the haul-out is unlikely. 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 planned monitoring and 
mitigation measures, we find that the total marine mammal take from 
SCWA's estuary management activities will have a negligible impact on 
the affected marine mammal species or stocks.

Small Numbers Analysis

    The authorized number of animals taken for each species of pinniped 
can be considered small relative to the population size. There are an 
estimated 30,968 harbor seals in the California stock, 296,750 
California sea lions, and 179,000 northern elephant seals in the 
California breeding population. Based on extensive monitoring effort 
specific to the affected haul-out and historical data on the frequency 
of the specified activity, we are proposing to authorize take, by Level 
B harassment only, of 4,464 harbor seals, 36 California sea lions, and 
36 northern elephant seals, representing 14.4, 0.01, and 0.02 percent 
of the populations, respectively. However, this represents an 
overestimate of the number of individuals harassed over the duration of 
the IHA, because these totals represent much smaller numbers of 
individuals that may be harassed multiple times. 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, we find 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 relevant subsistence uses of marine mammals implicated 
by this action. Therefore, we have 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)

    No species listed under the ESA are expected to be affected by 
these activities. Therefore, we have determined that a section 7 
consultation under the ESA is not required. As described elsewhere in 
this document, SCWA and the Corps consulted with NMFS under section 7 
of the ESA regarding the potential effects of their operations and 
maintenance activities, including SCWA's estuary management program, on 
ESA-listed salmonids. As a result of this consultation, NMFS issued the 
Russian River Biological Opinion (NMFS, 2008), including Reasonable and 
Prudent Alternatives, which prescribes modifications to SCWA's estuary 
management activities. The effects of the proposed activities and 
authorized take would not cause additional effects for which section 7 
consultation would be required.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, we prepared an Environmental 
Assessment (EA) to consider the direct, indirect and cumulative effects 
to the human environment resulting from issuance of the original IHA to 
SCWA for the specified activities and found that it would not result in 
any significant impacts to the human environment. We signed a Finding 
of No Significant Impact (FONSI) on March 30, 2010. We have reviewed 
SWCA's application for a renewed IHA for ongoing estuary management 
activities for 2016 and the 2015 monitoring report. Based on that 
review, we have determined that the proposed action follows closely the 
IHAs issued and implemented in 2010-15 and does not present any 
substantial changes, or significant new circumstances or information 
relevant to environmental concerns which would require a supplement to 
the 2010 EA or preparation of a new NEPA document. Therefore, we have 
determined that a new or supplemental EA or Environmental Impact 
Statement is unnecessary, and rely on the existing EA and FONSI for 
this action. The 2010 EA and FONSI for this action are available for 
review at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Authorization

    As a result of these determinations, we have issued an IHA to SCWA 
to conduct estuary management activities in the Russian River from the 
period of April 21, 2016, through April 20, 2017, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are implemented.

    Dated: April 8, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-08587 Filed 4-13-16; 8:45 am]
 BILLING CODE 3510-22-P