[Federal Register Volume 81, Number 221 (Wednesday, November 16, 2016)]
[Notices]
[Pages 80644-80645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27464]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-BC69


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to the Elliot Bay Seawall Project in Seattle, Washington

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

ACTION: Notice of issuance of a Letter of Authorization.

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SUMMARY: In accordance with regulations implementing the Marine Mammal 
Protection Act (MMPA), as amended, notification is hereby given that a 
Letter of Authorization (LOA) has been issued to the City of Seattle's 
Department of Transportation (SDOT) for the take of eight species of 
marine mammals incidental to pile driving activities associated with 
the Elliot Bay Seawall Project (EBSP).

DATES: Effective for a period of one year from November 16, 2016.

ADDRESSES: The LOA and supporting documentation are available for 
review online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Documents cited in this notice may also be viewed, by 
appointment, during regular business hours at the Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910-3225, by telephoning the contact listed below.

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, NMFS, 301-427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional, taking of 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 regulations are issued. Under the MMPA, the term ``take'' 
means to harass, hunt, capture, or kill marine mammals. Authorization 
for incidental takings shall be granted if NMFS finds that the taking 
will have a negligible impact on the identified 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 in 
the regulations. 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.''
    Regulations governing the taking of harbor seals (Phoca vitulina 
richardii), California sea lions (Zalophus californianus), Steller sea 
lions (Eumetopias jubatus monteriensis), harbor porpoise (Phocoena 
phocoena vomerina), Dall's porpoise (Phocoenoides dalli dalli), 
southern resident and transient killer whales (Orcinus orca), gray 
whales (Eschrichtius robustus), and humpback whales (Megaptera 
novaeangliae), by harassment, incidental to pile driving activities in 
Elliot Bay for the EBSP, were issued on October 21, 2013, and remain in 
effect until October 21, 2018. The regulations include mitigation, 
monitoring, and reporting requirements for the incidental take of 
marine mammals during pile driving activities associated with the EBSP. 
For detailed information on this action, please refer to the Federal 
Register Notice for the regulations at 78 FR 63396 (October 24, 2013).
    Pursuant to those regulations, NMFS issued an LOA, effective from 
October 22, 2013, through October 21, 2014, a second LOA, effective 
from October 22, 2014, through October 21, 2015, and a third LOA, 
effective October 22, 2015, through August 31, 2016. SDOT conducted 
activities as described, implemented the required mitigation methods, 
and conducted the required monitoring. NMFS announces here that it has 
issued a fourth LOA, effective for one year, beginning November 16, 
2016.

Monitoring Reports

    According to prior monitoring reports, no marine mammals entered 
the Level A harassment zone during the first year of the project (2013-
2014 LOA). Two marine mammals entered the Level A harassment zone 
during the second year (2014-2015 LOA), but work was stopped or not 
initiated until the animal left the Level A harassment zone. Six killer 
whales were observed in the Level A harassment zone during the third 
year of the project (2015-2016 LOA), but pile activity was not 
occurring at the time. Low-frequency cetaceans (e.g., humpback whales, 
gray whales) have rarely been observed during the past three years of 
this project (one humpback in the 2015-2016 LOA and the 2014-2015 LOA). 
No gray whales have been observed. Low numbers of high- and mid-
frequency cetaceans (e.g., harbor porpoise and killer whales, 
respectively) have been observed within the Level A harassment zone, 
but only one animal of each species was documented as take (Level B 
harassment) during the 2015-2016 LOA, significantly below the maximum 
number of takes authorized per year (40 and 315, respectively). There 
were no observed takes of harbor porpoises or killer whales in the 
2014-2015 LOA or the 2013-2014 LOA.
    Pinnipeds are more likely to be present in the construction area 
and to approach more closely. However, California sea lions (the 
pinniped species with the most documented takes), rested on the mooring 
buoys during construction and throughout the entire monitoring period 
on most days. These mooring buoys are well outside the SDOT's Level A 
harassment zones (under NMFS' then-current thresholds) for all 
pinnipeds and occur approximately two miles from these zones. The total 
number of potentially harassed marine mammals was well below the 
authorized limits, with the exception of the California sea lion in the 
2014-2015 LOA (Year 2 LOA). The reported take for California sea lions 
for the Year 2 LOA by Level B harassment only, exceeded the annually 
authorized level, and slightly exceeded the authorized level in the 
Year 1 LOA, but not in the 2015-2016 LOA (Year 3 LOA). Please see the 
monitoring reports at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm for more detail. The exceeded take in the Year 2 LOA 
resulted in part because of an error in our assumptions relating to the 
proposed take estimates in the rule, i.e., the number of California sea 
lions regularly hauling out on buoys in Elliot Bay.

Analysis

    Based on our review of monitoring to date, we revised take 
estimates by assuming an estimated daily exposure of up to seven 
California sea lions (as compared with five assumed in regulations).

[[Page 80645]]

    This revised estimate of take constitutes 0.14 percent of the 
population of California sea lions, which is 0.09 percent greater than 
the estimated take in the rule, and is the same kind of take 
anticipated in the regulations. Accordingly, the anticipated taking 
remains consistent with the basis for our final rule determinations of 
negligible impact based on the total taking and of small numbers, and 
our subsistence findings for the specified activity.

Technical Guidance for Assessing the Effects of Anthropogenic Sound on 
Marine Mammal Hearing

    In August 2016, NMFS released its Technical Guidance for Assessing 
the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance), 
which established new thresholds for predicting auditory injury, which 
equates to Level A harassment under the MMPA. In the August 4, 2016, 
Federal Register notice announcing the Guidance (81 FR 51694), NMFS 
explained the approach it would take during a transition period, 
wherein we balance the need to consider this new best available science 
with the fact that some applicants have already committed time and 
resources to the development of acoustic analyses based on our previous 
thresholds and have constraints that preclude the recalculation of take 
estimates, as well as consideration of where the agency is in the 
decision-making pipeline. In that notice, we included a non-exhaustive 
list of factors that would inform the most appropriate approach for 
considering the new Guidance, including: How far in the MMPA process 
the applicant has progressed; the scope of the effects; when the 
authorization is needed; the cost and complexity of the analysis; and 
the degree to which the Guidance is expected to affect our analysis.
    In this case, SDOT submitted a timely request for an LOA that was 
determined to be adequate and complete prior to availability of the 
Guidance and indicated that they would need to receive their fourth 
(final) LOA (if issued) by fall 2016. The incidental take rule for 
SDOT's activities considered the potential for auditory injury to 
marine mammals, and concluded that injury would be unlikely to occur 
due to SDOT's mitigation measures and SDOT's observed success of those 
measures as implemented previously. As described in the preamble of the 
regulations (78 FR 63396), the SDOT calculated Level A harassment and 
the Level A harassment mitigation zones on the basis of NMFS' then-
current thresholds for onset of P (i.e., 180/190 dB rms) (PTS).
    Following release of the Guidance, we considered the updated 
thresholds and found that the distances at which animals might be 
exposed to injury fall mostly within the mitigation zones, and 
therefore the likelihood of auditory injury of marine mammals is still 
low. However, to further reduce the likelihood in light of the 
Guidance, the SDOT will now implement a 61meter (m) exclusion zone for 
high frequency cetaceans and a 25 m exclusion zone for pinnipeds 
(inclusive of both phocids and otariids) during vibratory pile driving, 
which is larger than the PTS isopleth indicated by the Guidance for 
otariids. As an addition to their monitoring plan, the SDOT will use 
Internet sites that track whale activity in Puget Sound prior to and 
during monitoring shifts in anticipation of any cetacean that may enter 
the Level A/B harassment zones. In summary, we have considered the new 
Guidance and believe that the likelihood of injury is adequately 
addressed in the analysis and appropriate protective measures are in 
place in the LOA.

Authorization

    NMFS has issued an LOA to SDOT authorizing the Level B harassment 
of marine mammals incidental to pile driving activities associated with 
the EBSP at Seattle, WA. Take of marine mammals will be minimized 
through implementation of the following mitigation measures: (1) 
Limited impact pile driving; (2) containment of impact pile driving; 
(3) additional sound attenuation measures; (4) ramp-up of pile-related 
activities; (5) marine mammal exclusion zones; and (6) shutdown and 
delay procedures. SDOT will also conduct visual monitoring and 
underwater acoustic monitoring for mitigation and research purposes. 
Reports will be submitted to NMFS at the time of request for a renewal 
of the LOA, and a final comprehensive report, which will summarize all 
previous reports and assess cumulative impacts, will be submitted 
before the rule expires.
    Issuance of this LOA takes into consideration the results of the 
monitoring reports as well as NMFS' Guidance on hearing impacts from 
anthropogenic acoustic sources. Based on that information and the 
information discussed in the rule making for the five-year regulations, 
the activities described under the LOA and the level of anticipated 
taking is consistent with the findings made for the total taking 
allowable under the regulations, the project activities will have a 
negligible impact on the affected marine mammal species or stocks and 
will not have an unmitigable adverse impact on their availability for 
subsistence uses.

    Dated: November 9, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-27464 Filed 11-15-16; 8:45 am]
 BILLING CODE 3510-22-P