[Federal Register Volume 83, Number 157 (Tuesday, August 14, 2018)]
[Notices]
[Pages 40257-40263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17387]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG133


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Port of Kalama Expansion Project on 
the Lower Columbia River

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

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

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SUMMARY: NMFS received a request from the Port of Kalama (POK) to issue 
an incidental harassment authorization (IHA) previously issued to the 
POK to incidentally take three species of marine mammal, by Level B 
harassment only, during construction activities associated with an 
expansion project at the Port of Kalama on the Lower Columbia River, 
Washington. The current IHA was issued in 2017 and is in effect until 
August 31, 2018 (2017-2018 IHA). However, the project has been delayed 
such that none of the work covered by the 2017-2018 IHA has been 
initiated and, therefore, the POK requested that an IHA be issued to 
conduct their work beginning on or about September 1, 2018 (2018-2019 
IHA). NMFS is seeking public comment on its proposal to issue the 2018-
2019 IHA to cover the incidental take analyzed and authorized in the 
2017-2018 IHA. Pursuant to the Marine Mammal Protection Act (MMPA), 
NMFS is requesting comments on its proposal to issue an IHA to POK to 
incidentally take, by Level B harassment, small numbers of marine 
mammals during the specified activities. The authorized take numbers 
and related analyses would be the same as for the 2017-2018 IHA, and 
the required mitigation, monitoring, and reporting would remain the 
same as authorized in the 2017-2018 IHA referenced above. NMFS will 
consider public comments prior to making any final decision on the 
issuance of the requested MMPA authorization and agency responses will 
be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than 
September 13, 2018.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.
    An electronic copy of the proposed and final Authorization issued 
in 2017 and supporting material along with an updated IHA request memo 
from POK may be obtained by visiting https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, 
please call the contact listed below (see FOR FURTHER INFORMATION 
CONTACT).

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

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) 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 incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable 
[adverse] impact'' on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance, and on the availability of such species or stocks 
for taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.
    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations indicated above and 
amended the definition of ``harassment'' as it applies to a ``military 
readiness activity.'' The definitions of all applicable MMPA statutory 
terms cited above are included in the relevant sections below.

National Environmental Policy Act

    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), NMFS 
prepared an Environmental Assessment (EA) to consider the direct, 
indirect and cumulative effects to the human environment resulting from 
our action (issuance of an IHA for incidental take of marine mammals 
due to the POK Expansion project). NMFS made the EA available to the 
public for review and comment in order to assess the impacts to the 
human environment of issuance of the 2017-2018 IHA to the POK. Also in 
compliance with NEPA and the CEQ regulations, as well as NOAA 
Administrative Order 216-6, NMFS signed a Finding of No Significant 
Impact (FONSI) on October 24, 2016 for issuance of the 2017-2018 IHA. 
These NEPA documents are available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.
    Since this IHA covers the same work covered in the 2017-2018 IHA, 
NMFS has reviewed our previous EA and FONSI, and has preliminarily

[[Page 40258]]

determined that this action is consistent with categories of activities 
identified in CE B4 of the Companion Manual for NOAA Administrative 
Order 216-6A, which do not individually or cumulatively have the 
potential for significant impacts on the quality of the human 
environment and for which we have not identified any extraordinary 
circumstances that would preclude this categorical exclusion. 
Accordingly, NMFS has preliminarily determined that the issuance of the 
proposed IHA qualifies to be categorically excluded from further NEPA 
review. We will review all comments submitted in response to this 
notice prior to concluding our NEPA process or making a final decision 
on the 2018-2019 IHA request.

History of Request

    On September 28, 2015, we received a request from the POK for 
authorization of the taking, by Level B harassment only, of marine 
mammals incidental to the construction associated with the Port of 
Kalama Expansion Project, which involved construction of the Kalama 
Marine Manufacturing and Export Facility including a new marine 
terminal for the export of methanol, and installation of engineered log 
jams, restoration of riparian wetlands, and the removal of existing 
wood piles in a side channel as mitigation activities. The specified 
activity is expected to result in the take of three species of marine 
mammals (harbor seals, California sea lions, and Steller sea lions). A 
final version of the application, which we deemed adequate and 
complete, was submitted on December 10, 2015. We published a notice of 
a proposed IHA and request for comments on March 21, 2016 (81 FR 
715064). After the public comment period and before we issued the final 
IHA, POK requested that we issue the IHA for 2017 instead of the 2016 
work season. We subsequently published the final notice of our issuance 
of the IHA on December 12, 2016 (81 FR 89436), effective from September 
1, 2017-August 31, 2018. In-water work associated with the project was 
expected to be completed within the one-year timeframe of the IHA.
    On June 21, 2018, POK informed NMFS that work relevant to the 
specified activity considered in the MMPA analysis for the 2017-2018 
IHA was postponed and would not be completed. POK requested that the 
IHA be issued to be effective for the period from September 1, 2018-
August 31, 2019. In support of that request, POK submitted an 
application addendum affirming that no change in the proposed 
activities is anticipated and that no new information regarding the 
abundance of marine mammals is available that would change the previous 
analysis and findings.

Description of the Activity and Anticipated Impacts

    The 2017-2018 IHA covered the construction of a marine terminal and 
dock/pier for the export of methanol, and associated compensatory 
mitigation activities for the purposes of offsetting habitat effects 
from the action. The marine terminal will be approximately 45,000 
square feet in size, supported by 320 concrete piles (24-inch precast 
octagonal piles to be driven by impact hammer) and 16 steel piles (12 x 
12-inch and 4 x 18-inch anticipated to be driven by vibratory hammer, 
and impact hammering will only be done to drive/proof if necessary). 
The compensatory mitigation includes installation of 8 engineered log 
jams (ELJs), which will be anchored by untreated wooden piles driven by 
impact hammer at low tides (not in water). The compensatory mitigation 
also includes removal of approximately 320 untreated wooden piles from 
an abandoned U.S. Army Corps of Engineers (USACE) dike in a nearby 
backwater area. The piles will be removed either by direct pull or 
vibratory extraction. Finally, the compensatory mitigation includes 
wetland restoration and enhancement by removal of invasive species and 
replacement with native wetland species.
    NMFS refers the reader to the documents related to the 2017-2018 
IHA for more detailed description of the project activities. These 
previous documents include the Federal Register notice of the issuance 
of the 2017-2018 IHA for the POK's Port of Kalama Expansion Project (81 
FR 89436, December 12, 2016), the Federal Register notice of the 
proposed IHA (81 FR 15064, March 21, 2016), POK's application (and 2018 
application addendum), and all associated references.
    Detailed Description of the Action--A detailed description of the 
pile driving activities at the Port of Kalama is found in these 
previous documents and the updated 2018-2019 IHA application addendum. 
The location, timing (e.g., seasonality), and nature of the pile 
driving operations, including the type and size of piles and the 
methods of pile driving, are identical to those described in the 
previous Federal Register notices referenced above.
    Description of Marine Mammals--A description of the marine mammals 
in the area of the activities is found in the previous documents 
referenced above, which remain applicable to this IHA as well. In 
addition, NMFS has reviewed recent Stock Assessment Reports, 
information on relevant Unusual Mortality Events, and recent scientific 
literature. Since the submittal of the 2015 IHA application, the USACE 
has published updated data on pinniped presence at the Bonneville Dam 
(Tidwell et al., 2017). This information reveals that in both 2016 and 
2017 the numbers of pinnipeds present at Bonneville Dam were within the 
range of historical variability. The latest USACE data does not suggest 
a trend that would require a modification to the take estimates or to 
the effects analysis (see Table 1 below for a summary of monitoring 
data by year from Tidwell et al., 2017). Therefore, NMFS has 
preliminarily determined that the updated information does not affect 
our analysis of impacts for the 2018-2019 IHA.

   Table 1--Minimum Estimated Number of Individual Pinnipeds Observed at Bonneville Dam Tailrace Areas and the
                       Hours of Observation During the Focal Sampling Period, 2002 to 2017
                                           [From Tidwell et al., 2017]
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                                    Total hours   California sea    Steller sea                        Total
              Year                   observed          lions           lions       Harbor seals      pinnipeds
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2002............................             662              30               0               1              31
2003............................           1,356             104               3               2             109
2004............................             516              99               3               2             104
2005 *..........................           1,109              81               4               1              86
2006............................           3,650              72              11               3              86
2007............................           4,433              71               9               2              82
2008............................           5,131              82              39               2             123

[[Page 40259]]

 
2009............................           3,455              54              26               2              82
2010............................           3,609              89              75               2             166
2011............................           3,315              54              89               1             144
2012............................           3,404              39              73               0             112
2013............................           3,247              56              80               0             136
2014............................           2,947              71              65               1             137
2015............................           2,995             195          \a\ 69               0             264
2016............................           1,974             149          \a\ 54               0             203
2017............................           1,142              92          \a\ 63               1             156
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* Observations did not begin until March 18 in 2005.
\a\ In 2015, 2016, and 2017 the minimum estimated number of Steller sea lions was 55, 41, and 32, respectively.
  These counts were less than the maximum number of Steller sea lions observed on one day, so Tidwell et al.
  (2017) used the maximum number observed on one day as the minimum number. This difference was driven by a
  focus on California sea lions and lack of branding or unique markers on Steller sea lions.

    Potential Effects on Marine Mammals--A description of the potential 
effects of the specified activities on marine mammals and their habitat 
is found in the previous documents referenced above, and remain 
applicable to this proposed IHA. There is no new information on 
potential effects that would change our analyses or determinations 
under the 2018-2019 IHA.
    Estimated Take--A description of the methods and inputs used to 
estimate take anticipated to occur and, ultimately, the take that was 
authorized is found in the previous documents referenced above. The 
methods of estimating take for this proposed IHA are identical to those 
used in the 2017-2018 IHA, as is the density of marine mammals. The 
source levels, also remain unchanged from the 2017-2018 IHA, and NMFS' 
2016 Technical Guidance for Assessing the Effects of Anthropogenic 
Sound on Marine Mammal Hearing (NMFS 2016) was used to address new 
acoustic thresholds in the notice of issuance of the 2017-2018 IHA (see 
Table 2 for NMFS User Spreadsheet inputs). As stated above, since the 
submittal of the application for the 2017-2018 IHA (in effect from 
September 1, 2017 through August 31, 2018), the USACE has published 
updated data on pinniped presence at the Bonneville Dam, and this data 
does not suggest a trend that would require a modification to the take 
estimates or effects analysis. Consequently, the proposed authorized 
Level B harassment take for this proposed 2018-2019 IHA is identical to 
the 2017-2018 IHA, as presented in Table 3 below. However, the 
originally issued IHA did not authorize any Level A harassment take. As 
harbor seals are smaller and may be more difficult to detect at larger 
Level A harassment zones, and to account for the potential that they 
may be unseen/may linger longer than expected, a small number of takes 
by Level A harassment is currently being proposed.

                                    Table 2--Inputs for NMFS User Spreadsheet
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                                        Vibratory pile driving    Impact pile driving      Impact pile driving
           Input parameter                     (steel)                  (steel)                 (concrete)
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Weighting Factor Adjustment \1\......  2.5....................  2......................  2.
Source Level (SL) \2\................  170....................  178....................  166.
Duration.............................  1 hour.................  1 hour.................  1 hour.
Strikes per pile.....................  .......................  1,025..................  1,025.
Piles per day \3\....................  1 (1 hour duration)....  (1 pile/hour)..........  (1 pile/hour).
Propagation (xlogR)..................  15.....................  15.....................  15.
Distance from SL measurement.........  10.....................  10.....................  10.
----------------------------------------------------------------------------------------------------------------
\1\ In instances where full auditory weighting functions associated with the SELcum metric cannot be applied,
  NMFS has recommended the default, single frequency weighting factor adjustments (WFAs) provided here. As
  described in Appendix D of NMFS' Technical Guidance (NMFS, 2016), the intent of the WFA is to broadly account
  for auditory weighting functions below the 95 frequency contour percentile. Use of single frequency WFA is
  likely to over-predict Level A harassment distances.
\2\ SLs from CalTrans (2012). SL for all steel piles are based on 18'' steel pipe (4 of the piles are 18'' and
  12 of the piles are 12'').
\3\ A 1-hour duration was used as there are no haul-outs in the project area. Animals are transiting through the
  project area, and are not anticipated to be present for a full 8-hour day of pile driving activity. POK
  estimates 6-8 piles/day, or approximately 1 pile/hour. Animals are anticipated to be present for the duration
  of 1 pile being driven (1 hour) at most.


      Table 3--Estimated Take Proposed for Authorization and Proportion of Population Potentially Affected
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                                                                                 Percentage of
                                Estimated take  Estimated take   Abundance of        stock
                                  by Level B      by Level A         stock        potentially   Population trend
                                  harassment      harassment                       affected
----------------------------------------------------------------------------------------------------------------
Harbor seal...................           1,530              10          24,732             6.2  Stable.
California sea lion...........             372               0         153,337             0.2  Stable.
Steller sea lion..............             372               0          59,968             0.6  Increasing.
----------------------------------------------------------------------------------------------------------------


[[Page 40260]]

    Description of Mitigation, Monitoring and Reporting Measures--A 
description of mitigation, monitoring, and reporting measures is found 
in the previous documents referenced above, and remain unchanged for 
this proposed IHA. In summary, mitigation includes implementation of 
shut down procedures if any marine mammal approaches or enters the 
Level A harassment zone for pile driving (16.5 m [54 ft] for vibratory 
pile driving of steel piles; 40 m [131 ft] for impact driving of 
concrete piles; and 252 m [828 ft] for impact driving of steel piles) 
and for in-water heavy machinery work other than pile driving (e.g. 
standard barges, barge-mounted cranes, excavators, etc.), if a marine 
mammal comes within 10 m operations shall cease and vessels shall 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions. One trained observer shall monitor to 
implement shutdowns and collect information at each active pile driving 
location (whether vibratory or impact driving of steel or concrete 
piles).
    At least three observers shall be on duty during impact driving at 
all times. As discussed above, one observer shall monitor and implement 
shutdowns and collect information at each pile driving location at all 
times. In addition, two shore-based observers (one upstream of the 
project and another downstream of the project), whose primary 
responsibility shall be to record pinnipeds in the Level B harassment 
zone and to alert the barge-based observer to the presence of 
pinnipeds, thus creating a redundant alert system for prevention of 
injurious interaction as well as increasing the probability of 
detecting pinnipeds in the disturbance zone. At least three observers 
shall be on duty during vibratory pile driving activity for the first 
two days, and thereafter on every third day to allow for estimation of 
Level B takes. Similar to requirements for impact driving, the first 
observer shall be positioned on a work platform or barge where the 
entirety of the shutdown zone can be monitored. Shore based observers 
shall be positioned to observe the disturbance zone from the bank of 
the river. Protocols will be implemented to ensure that coordinated 
communication of sightings occurs between observers in a timely manner.
    Pile driving activities shall only be conducted during daylight 
hours. If the shutdown zone is obscured by fog or poor lighting 
conditions, pile driving will not be initiated until the entire 
shutdown zone is visible. Work that has been initiated appropriately in 
conditions of good visibility may continue during poor visibility. The 
shutdown zone will be monitored for 30 minutes prior to initiating the 
start of pile driving, during the activity, and for 30 minutes after 
activities have ceased. If pinnipeds are present within the shutdown 
zone prior to pile driving, the start will be delayed until the animals 
leave the shutdown zone of their own volition, or until 15 minutes 
elapse without re-sighting the animal(s).
    Soft start procedures shall be implemented at the start of each 
day's impact pile driving and at any time following cessation of impact 
driving for a period of thirty minutes or longer. If steel piles 
require impact installation or proofing, a bubble curtain will be used 
for sound attenuation. If water velocity is 1.6 feet per second (1.1 
miles per hour) or less for the entire installation period, the pile 
being driven will be surrounded by a confined or unconfined bubble 
curtain that will distribute small air bubbles around 100 percent of 
the pile perimeter for the full depth of the water column. If water 
velocity is greater than 1.6 feet per second (1.1 miles per hour) at 
any point during installation, the pile being driven will be surrounded 
by a confined bubble curtain (e.g., a bubble ring surrounded by a 
fabric or non-metallic sleeve) that will distribute air bubbles around 
100 percent of the pile perimeter for the full depth of the water 
column.

Determinations

    The POK proposes to conduct activities in 2018-2019 that are 
identical to those covered in the currently 2017-2018 IHA. As described 
above, the number of estimated takes of the same stocks of harbor seals 
(OR/WA Coast stock), California sea lion (U.S. stock), and Steller sea 
lion (Eastern DPS) is the same for this proposed IHA as those 
authorized in the 2017-2018 IHA, which were found to meet the 
negligible impact and small numbers standards. The authorized take of 
1,540 harbor seals; 372 California sea lions, and 372 Steller sea lions 
represent 6.2 percent, 0.2 percent, and 0.6 percent of these stocks of 
marine mammals, respectively. We evaluated the impacts of the 
additional authorization of 10 Level A harassment takes of harbor seal, 
and find that consideration of impacts to these 10 individuals accruing 
a small degree of PTS does not meaningfully change our analysis, nor 
does it change our findings/determinations. This proposed IHA includes 
identical required mitigation, monitoring, and reporting measures as 
the 2017-2018 IHA, and there is no new information suggesting that our 
prior analyses or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily determined the following: (1) The 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (2) the required mitigation measures will 
effect the least practicable impact on marine mammal species or stocks 
and their habitat; (3) the authorized takes represent small numbers of 
marine mammals relative to the affected species or stock abundances; 
and (4) the POK's activities will not have an unmitigable adverse 
impact on taking for subsistence purposes, as no relevant subsistence 
uses of marine mammals are implicated by this action.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species. No incidental take of ESA-listed 
species is expected to result from this activity, and none would be 
authorized. Therefore, NMFS has determined that consultation under 
section 7 of the ESA is not required for this action.

Proposed Authorization

    NMFS proposes to issue an IHA to POK for in-water construction work 
activities beginning September 2018 through August 2019, with the 
proposed mitigation, monitoring, and reporting requirements. The 
proposed IHA language is provided next.
    This section contains a draft of the IHA itself. The wording 
contained in this section is proposed for inclusion in the IHA (if 
issued).
    The Port of Kalama (POK), 110 West Marine Drive, Kalama, 
Washington, 98625, is hereby authorized under section 101(a)(5)(D) of 
the Marine Mammal Protection Act (16 U.S.C. 1371(a)(5)(D)) and 50 CFR 
216.107 to take marine mammals, by harassment, incidental to conducting 
in-water construction work for the Port of Kalama Expansion Project 
contingent upon the following conditions:
    1. This Authorization is valid from September 1, 2018 through 
August 31, 2019
    2. (a) Timing of Activities Anticipated to Result in Take of Marine 
Mammals:

[[Page 40261]]

In-water construction/pile installation (including installation and 
removal of temporary piles for construction) shall be conducted between 
September 1, 2018 and January 31, 2019.
    (b) Timing of Activities Not Anticipated to Result in Take of 
Marine Mammals
    (i) Dredging would be conducted between September 1, 2017 and 
December 31, 2017
    (ii) Construction/installation of engineered log jams (ELJ) may be 
conducted year-round
    (iii) Construction that will take place below the Ordinary High 
Water Mark (OHWM), but outside of the wetted perimeter of the river (in 
the dry) may be conducted year-round
    (iv) Removal of wooden piles from former trestle in the freshwater 
intertidal backwater channel portion of the project site (compensatory 
mitigation measure of removal of 157 wooden piles) may be conducted 
year-round.
    3. This Authorization is valid only for activities associated with 
in-water construction work for the Port of Kalama Expansion Project on 
approximately 100 acres (including uplands) at the northern end of the 
Port of Kalama's North Port site (Lat. 46.049, Long. -122.874), located 
at approximately river mile 72 along the lower Columbia River along the 
east bank in Cowlitz County, Washington.
    4. (a) The species authorized for taking are: Harbor seal (Phoca 
vitulina richardsi), California sea lion (Zalophus californianus), and 
Steller sea lion (Eumatopius jubatus).
    (b) The Authorization for taking by harassment is limited to the 
following acoustic sources and activities:
    (i) Impact pile driving; and
    (ii) Vibratory pile driving activities (including vibratory removal 
of temporary construction piles).
    (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 National Marine Fisheries Service (NMFS) West Coast Regional 
Administrator at (206) 526-6150 and the NMFS Chief of the Permits and 
Conservation Division at (301) 427-8401.
    5. The taking is limited to the species listed, and by the numbers 
listed, under condition 4(a) above. The taking or death of the species 
identified or any taking of any other species of marine mammal is 
prohibited and may result in the modification, suspension, or 
revocation of this Authorization.
    6. Mitigation
    (a) Activities authorized for take of marine mammals by this 
Authorization must occur only during daylight hours.
    (b) A bubble curtain shall be used for sound attenuation if steel 
piles require impact installation or proofing
    (c) Exclusion Zone and Level B Harassment Zones of Influence
    (i) Exclusion zones out to 16 m (54 ft) for vibratory driving of 
steel piles; 40 m (131 ft) for impact driving of concrete piles; 252 m 
(828 ft) for impact driving of steel piles, encompassing the Level A 
harassment zones; and 10 m for operation of in-water heavy machinery 
must be implemented to avoid Level A take of marine mammals due to pile 
driving and avoid potential for injury or mortality due to operation of 
heavy machinery.
    (ii) Disturbance zones must be established to include 117 m for 
impact driving of concrete piles; 1,848 m for impact driving of steel 
piles; and the full line of sight (maximum of 5.7 km) for vibratory 
driving of steel piles.
    (d) Monitoring of marine mammals must take place starting 30 
minutes before pile driving begins and must continue until 30 minutes 
after pile driving ends.
    (e) Soft Start
    (i) Soft start procedures must be implemented at the start of each 
day's impact pile driving and at any time following cessation of impact 
pile driving for a period of 30 minutes or longer.
    (ii) Soft start procedures require that the contractor provides an 
initial set of three strikes at reduced energy followed by a 30-second 
waiting period, then two subsequent reduced energy strike sets.
    (f) Shutdown Measures
    (i) POK must implement shutdown measures if a marine mammal is 
sighted within, or is perceived to be approaching, the exclusion zones 
identified in 6(c)(i) above and the associated construction or pile 
driving activities shall immediately cease. Pile driving or in-water 
construction work will not be resumed until the exclusion zone has been 
observed as being clear of marine mammals for at least 15 minutes.
    (ii) If marine mammals are present within the exclusion zones 
established in 6(c)(i) above prior to the start of in-water 
construction activities, these activities would be delayed until the 
animals leave the exclusion zone of their own volition, or until 15 
minutes elapse without resighting the animal, at which time it may be 
assumed that the animal(s) have left the exclusion zone.
    7. Monitoring
    The holder of this Authorization is required to conduct marine 
mammal monitoring during all in-water construction work. Monitoring and 
reporting shall be conducted in accordance with the Monitoring Plan.
    (a) Marine Mammal Observers--POK shall employ observers to conduct 
marine mammal monitoring for its construction project. Observers shall 
have the following minimum qualifications:
    (i) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with the ability to estimate target size and distance. Use of 
binoculars may be necessary to correctly identify the target.
    (ii) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
    (iii) Experience or training in the field identification of the 
marine mammals that could potentially be encountered.
    (iv) Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations.
    (v) Writing skills sufficient to prepare a report of observations 
that will include such information as the number and types of marine 
mammals observed; the behavior of marine mammals in the project area 
during construction; the dates and times when observations were 
conducted; the dates and times when in-water construction activities 
were conducted; the dates and times when marine mammals were present at 
or within the defined disturbance zone; and the dates and times when 
in-water construction activities were suspended to avoid incidental 
harassment by disturbance from construction noise.
    (vi) Ability to communicate orally, by radio or in person, with 
project personnel to provide real time information on marine mammals 
observed in the area.
    (b) Individuals meeting the minimum qualifications identified in 
7(a), above, shall be present on site (on land or dock/barge) at all 
times during pile driving activities conducted for the project.
    (c) During all impact pile driving activities, observers will be 
stationed to allow a clear line of sight of the exclusion zone (10 m 
[33 ft] for all in-water heavy machinery operations except for pile 
driving; the entirety of the Level A harassment zone, and the entire 
disturbance zone for pile driving activity, as identified in 6(c)(i).
    (d) Marine mammal observers will monitor for the first two days of 
vibratory pile driving, and thereafter on every third day of vibratory 
pile driving. Monitoring will be conducted by three observers during 
vibratory pile driving

[[Page 40262]]

activities. One observer will be stationed in the general vicinity of 
the pile being driven and will have clear line of sight views of the 
entire inner harbor. Another observer will be stationed at an 
accessible location downstream (such as northern tip of Prescott Beach 
County Park) and would observe the northern (downstream) portion of the 
disturbance zone. A third observer will be stationed at an accessible 
location upstream and would observe the southern (upstream) portion of 
the disturbance zone.
    (e) Marine mammal observers will scan the waters within each 
monitoring zone activity using binoculars (Vector 10 X 42 or 
equivalent), spotting scopes (Swarovski 20-60 zoom or equivalent; 
Washington Department of Fish and Wildlife 2000), and visual 
observation.
    (f) Marine mammal presence within the Level B harassment zones of 
influence (disturbance zones) will be monitored, but pile driving 
activity will not be stopped if marine mammals are found present unless 
they enter or approach the exclusion zone. Any marine mammal observed 
within the disturbance zone will be documented and counted as a Level B 
take. Monitoring during vibratory pile driving will occur during the 
first two days of activity and during every three days thereafter to 
estimate the number of individuals present within the Level B 
harassment area.
    (g) If waters exceed a sea-state which restrict the observers' 
ability to make observations within the Level A injury exclusion zone, 
relevant activities will cease until conditions allow the resumption of 
monitoring. Vibratory pile installation would continue under these 
conditions.
    (h) The waters will be scanned 30 minutes prior to commencing pile 
driving activities and during all pile driving activities. If marine 
mammals enter or are observed within the designated exclusion zones 
during, or 15 minutes prior to, impact pile driving, the monitors will 
notify the on-site construction manager to not begin, or cease, work 
until the animal(s) leave of their own volition, or have not been 
observed within the zone for 15 minutes.
    8. Reporting
    (a) POK shall provide NMFS with a draft monitoring report within 90 
days of the expiration of this Authorization, or within conclusion of 
the construction work, 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 NMFS (West Coast Regional 
Administrator or NMFS Office of Protected Resources) on the draft 
report within 30 days, a final report shall be submitted to NMFS within 
30 days thereafter. If no comments are received from NMFS within 30 
days after receipt of the draft report, the draft report will be 
considered final.
    (c) In the unanticipated event that the construction activities 
clearly cause the take of a marine mammal in a manner prohibited by 
this Authorization, such as an injury, serious injury, or mortality 
(Level A take), POK shall immediately cease all operations and 
immediately report the incident to the NMFS Chief of the Permits and 
Conservation Division, Office of Protected Resources and the NMFS West 
Coast Regional Stranding Coordinators. The report must include the 
following information:
    (i) Time, date, and location (latitude and longitude) of the 
incident;
    (ii) Description of the incident;
    (iii) Status of all sound sources used in the 24 hours preceding 
the incident;
    (iv) Environmental conditions (wind speed, wind direction, sea 
state, cloud cover, visibility, water depth);
    (v) Description of the 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(s), if equipment 
is available.
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with POK to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. POK may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    (d) In the event that POK discovers an injured or dead marine 
mammal, and the marine mammal observer determines that the cause of 
injury or death is unknown and the death is relatively recent (less 
than a moderate state of decomposition), POK will immediately report 
the incident to the NMFS Chief of Permits and Conservation Division, 
Office of Protected Resources, and the NMFS West Coast Regional 
Stranding Coordinator. The report must include the same information 
identified above. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with POK to determine 
whether modifications in the activities are appropriate.
    (e) In the event that POK discovers an injured or dead marine 
mammal, and the marine mammal observer determines that the injury or 
death is not associated with or related to the activities authorized in 
the IHA (previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), POK shall report the incident to 
the NMFS Chief of Permits and Conservation Division, Office of 
Protected Resources, and the NMFS West Coast Regional Stranding 
Coordinator within 24 hours of the discovery. POK shall provide 
photographs or video footage (if available) or other documentation of 
the stranded animal(s) to NMFS and the Marine Mammal Stranding Network. 
POK may continue its operations under such a case.

Request for Public Comments

    We request comment on our analyses, the draft authorization, and 
any other aspect of this Notice of Proposed IHA for the proposed POK 
construction activities. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.
    On a case-by-case basis, NMFS may issue a second one-year IHA 
without additional notice when (1) another year of identical or nearly 
identical activities as described in the Specified Activities section 
is planned, or (2) the activities would not be completed by the time 
the IHA expires and renewal would allow completion of the activities 
beyond that described in the Dates and Duration section, provided all 
of the following conditions are met:
     A request for renewal is received no later than 60 days 
prior to expiration of the current IHA;
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted beyond the 
initial dates either are identical to the previously analyzed 
activities or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, take estimates, 
or mitigation and monitoring requirements; and
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized;
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS

[[Page 40263]]

determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures remain the same and appropriate, 
and the original findings remain valid.

    Dated: August 8, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-17387 Filed 8-13-18; 8:45 am]
BILLING CODE 3510-22-P