[Federal Register Volume 83, Number 219 (Tuesday, November 13, 2018)]
[Notices]
[Pages 56304-56310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24665]


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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; 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 Port of Kalama (POK) for the take of marine mammals, by harassment, 
incidental to construction activities associated with an expansion 
project at the Port of Kalama on the Lower Columbia River, Washington.

DATES: This Authorization is in effect from October 18, 2018 to October 
18, 2019.

FOR FURTHER INFORMATION CONTACT: Dale Youngkin, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained by visiting the internet at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems 
accessing

[[Page 56305]]

these documents, please call the contact listed above.

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 monitoring and 
reporting of such takings.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

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 2018--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. A 
notice for the proposed incidental take authorization was published on 
July 25, 2018 (83 FR 35220), and a corrected notice was published on 
August 14, 2018 (83 FR 40257). Therefore, comments were received until 
September 13, 2018. Please refer to the Comments and Responses section 
below for information on the comments received during the comment 
periods for the proposed IHA.

Description of the Activity

    The 2017-2018 IHA covered the incidental take of marine mammals due 
to 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 eight 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 157 untreated wooden piles from an old trestle 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.
    Since no changes have been made to the planned activities reflected 
in the proposed IHA, 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, which can be found at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Comments and Responses

    NMFS published a notice of receipt of POK's updated application 
addendum and proposed IHA in the Federal Register on July 25, 2018 (83 
FR 35220), with a comment response date of August 24, 2018. However, 
during the public review period for this notice, it was noted that 
instructions for submitting comments were lacking. Therefore, a second 
notice of the proposed IHA was published on August 14, 2018 (83 FR 
40257), which included full instructions for submittal of comments. 
Comments were accepted on this corrected notice until September 13, 
2018. NMFS received two comments during the review of the first notice. 
One comment was from a private citizen and one comment was received 
from the Columbia Riverkeeper, stating that instructions for submitting 
comments was not clear and voicing their concern with the use of a 
Categorical Exclusion (CE) for our action. During public review of the 
corrected notice, NMFS received four additional comments. Two of these 
additional comments were from the same private citizen who commented on 
the first notice; one was from the Marine Mammal Commission (MMC); and 
one was from the Center for Biological Diversity (CBD). Copies of the 
full comments received are available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. Additionally, all comments received on both 
notices are summarized and responses are provided below:
    Comment: Three comments were received from the same private citizen

[[Page 56306]]

(Jean Public) expressing opposition to the project and concern 
regarding any government authorization to kill birds, seals, and sea 
lions in the Columbia River. One of these comments also suggested 
charging the POK (terminal builders) $100,000 for every seal they kill.
    Response: NMFS has issued an IHA to the POK for the incidental 
take, by Level A and Level B harassment only, of marine mammals due to 
in-water construction activities associated with the POK expansion 
project. Mortality is not expected or authorized by the IHA.
    Comment: The MMC concurred with NMFS's findings and recommended 
that NMFS issue the IHA subject to inclusion of the mitigation, 
monitoring, and reporting measures discussed in the notice of the 
Proposed IHA.
    Response: NMFS thanks the MMC for their comment and concurs with 
the recommendation. NMFS has issued the IHA to the Port of Kalama 
subject to the mitigation, monitoring, and reporting measures that were 
included in the notice of the Proposed IHA.
    Comment: The MMC recommended that NMFS revise the Level A 
harassment zones for harbor seals during impact driving of concrete 
piles and vibratory driving of steel piles based on eight hours of 
activities, or eight piles/day, because harbor seals may be present in 
the project area for longer periods than California or Steller sea 
lions and therefore accumulate more sound energy.
    Response: NMFS agrees that it is possible that harbor seals may be 
present in the general project area for longer periods than California 
or Steller sea lions. However, NMFS feels that it is unreasonable to 
assume that seals would remain within the area for a full eight hours, 
as they may be transiting between two sites (one approximately one mile 
upstream and one approximately 3.5 miles downstream) where they are 
known to forage and/or haul out. In addition, it is not reasonable to 
assume that pile driving activities would occur for eight consecutive 
hours daily, and is more likely that these activities would occur for 
an hour to two hours at a time, and would be broken up by time needed 
to set up new piles. However, NMFS has determined it is reasonable to 
assume that seals would be present for double the amount of time as sea 
lions (assuming a two-hour duration versus a one-hour duration due to 
the fact that they may be transiting the area twice if they move from 
one site to the other and return again) results in a Level A harassment 
threshold distance of 63 m for impact driving of concrete piles and 26 
m for vibratory driving of steel piles.
    As noted in the notice for the proposed IHA, Level A harassment 
takes proposed for authorization did not rely on calculated takes, and 
were qualitatively proposed for authorization out of an abundance of 
caution in the event that some seals may be undetected before entering 
the Level A harassment zone. Therefore, the amount of Level A 
harassment takes authorized has not changed as a result of 
reconsidering the Level A harassment zone and only results in a 
revision of the Level A harassment monitoring area. Therefore, the 
requirement for monitoring and shut down distance to avoid Level A 
harassment take has been revised to 63 m and 26 m to correspond to a 
two-hour duration for impact driving of concrete piles and vibratory 
driving of steel piles, respectively.
    Comment: The MMC recommended that NMFS further investigate 
appropriate timeframes over which sound exposure levels should be 
accumulated when estimating Level A harassment zones, and recommended 
that NMFS make this a priority to resolve in the near future. MMC 
further recommended that NMFS consult with its own and external 
scientists and acousticians to determine appropriate accumulation 
times.
    Response: NMFS considers this a priority and has recently formed a 
group to work on the issue of accumulation time.
    Comment: The Commission expressed continuing concern with NMFS's 
notice that one-year renewals could be issued in certain circumstances 
without additional public notice and comment requirements. The 
Commission also suggested that NMFS should discuss the possibility of 
renewals through a more general route, such as abbreviated notices such 
as was done in this instance. The Commission further recommended that 
if NMFS did not pursue renewals solely using abbreviated notices, that 
the agency provide a legal analysis supporting our conclusion that this 
process is consistent with the requirements of section 101(a)(5)(D) of 
the MMPA.
    Response: As stated in previous responses to this comment from the 
Commission, the process of issuing a renewal IHA does not bypass the 
public notice and comment requirements of the MMPA. The Federal 
Register notice of the proposed IHA expressly notified the public that 
under certain, limited conditions an applicant could seek a renewal IHA 
for an additional year. The notice describes the conditions under which 
such a renewal request could be considered and seeks public comment on 
those circumstances. Importantly, such renewals would be limited to 
circumstances where: The activities are identical or nearly identical 
to those analyzed in the proposed IHA or 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; monitoring does not indicate impacts that were not 
previously analyzed and authorized; and the mitigation and monitoring 
requirements remain the same, all of which allow the public to comment 
on the appropriateness and effects of a renewal at the same time the 
public provides comments on the initial proposed IHA. NMFS has, 
however, modified the language to clarify that all IHAs, including 
renewal IHAs, are valid for no more than one year and that the agency 
would consider only one renewal for a project at this time. In 
addition, notice of issuance or denial of a renewal IHA would be 
published in the Federal Register, as they are for all IHAs. The option 
for issuing renewal IHAs has been in NMFS's implementing regulations 
for the incidental take provisions of the MMPA (Section 101(a)(5)(A) 
and (D)) since 1996.
    Comment: The Columbia Riverkeeper (Riverkeeper) submitted a comment 
expressing concern with NMFS's use of a CE for purposes of the National 
Environmental Policy Act (NEPA) for the issuance of our IHA to the POK 
for incidental take of marine mammals from construction activities 
associated with the POK expansion project. The Riverkeeper stated that 
use of the CE would be counter to NOAA's NEPA guidance, citing language 
in the Companion Manual to NOAA Administrative Order 216-6A that says a 
CE may only be applied when the proposed action is not part of a larger 
action and can therefore be reviewed independently from other actions 
under NEPA. In addition, the Riverkeeper asserted that use of the CE 
would be a waste of agency time and resources since the US Army Corps 
of Engineers (USACE) is currently preparing an Environmental Assessment 
(EA) for the overall construction project. The Riverkeeper suggested 
that NMFS should participate in USACE's ongoing NEPA process and base 
its IHA decision on the USACE NEPA document. In addition, the Center 
for Biological Diversity (CBD) submitted a comment stating they were in 
agreement with the Riverkeeper comment.
    Response: The application of a CE for NMFS's action (issuance of an 
IHA) is entirely consistent with NOAA's NEPA

[[Page 56307]]

guidance and practices. The issuance of an IHA is not part of a larger 
NMFS action that would be segmented for the purposes of NEPA (i.e., 
NMFS's action would not be segmented for purposes of NEPA such that 
several CEs would be required for a larger project, as the only action 
NMFS has would be the issuance or denial of the IHA for the incidental 
take of marine mammals due to in-water construction work associated 
with the POK expansion). Further, as stated in the notice of the 
proposed IHA, NMFS had previously prepared its own EA for the issuance 
of the previous IHA, which resulted in a Finding of No Significant 
Impact (FONSI). Based on this past analysis, as well as an 
Administrative Record justifying the use of the CE (CE B4) for similar 
types of activities, NMFS has determined that the use of the CE for 
this action is well supported. While we appreciate that the USACE must 
prepare a NEPA document for its own action (issuance of a permit, or 
permits, for the larger construction project), relying on the NEPA 
analysis for this larger project would be of no benefit for NMFS's 
purposes due to the fact that the majority of the larger project 
construction activities would be associated with upland areas with no 
potential for the incidental take of marine mammals associated with 
NMFS's action.
    Comment: The CBD commented that their primary concern is that the 
scope of the authorization is arbitrarily narrow in light of the 
Project's recognized impacts on marine mammals. More specifically, the 
CBD states that NMFS previously considered the Project and concluded in 
its biological opinion that the Project would adversely affect blue, 
humpback, fin, and sperm whales, yet none of these species are 
considered in the applicant's request. The Biological Opinion also 
concluded the Project would adversely affect several species of Chinook 
salmon and critical habitat, yet the applicant did not consider the 
resulting impacts to the critically endangered Southern Resident killer 
whales that feed on those salmon.
    Response: The two statutes (Endangered Species Act (ESA) and MMPA) 
are different both substantively and procedurally, with different 
analyses and potentially involving different scopes. The Biological 
Opinion was prepared pursuant to section 7(a)(2) of the ESA due to the 
requirement for consultation on the effects of the proposed action by a 
federal action agency, in this case the USACE, to issue permits for the 
construction of the Kalama Manufacturing and Marine Export Facility on 
the Columbia River and to Northwest Pipeline LLC for construction of 
the Kalama Lateral Project.\1\ The Biological Opinion evaluates the 
effects of the USACE issuance of permits that would authorize the 
construction project for the marine export facility, which is a 
component of the overall Kalama Manufacturing and Marine Export 
Facility project. The ESA consultation (Biological Opinion) evaluates 
the direct and indirect effects of the proposed action, together with 
interrelated and interdependent actions such as the manufacturing/
production facility, into the reasonably foreseeable future. Therefore, 
the ESA consultation broadly evaluated the effects of the agency 
action. The Biological Opinion determined that the project is likely to 
indirectly affect several species of marine mammals including blue, 
humpback, fin, and sperm whales, based on increased vessel traffic 
(including increased potential for ship strike and noise associated 
with OGVs and supertankers) from the long-term operation of the 
facility.
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    \1\ The U.S. Department of Energy is also identified as an 
action agency because of its consideration of whether to issue a 
loan guarantee for the project.
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    The Biological Opinion does not identify potential effects of pile 
driving/in-water construction in regard to any ESA-listed marine mammal 
species, as none are anticipated to be present in the area of pile 
driving activities. The Biological Opinion did determine adverse 
effects to salmon as a result of in-water construction/pile driving but 
also concluded that the proposed action is not likely to adversely 
affect southern resident killer whales.
    The IHA was issued pursuant to section 101(a)(5)(D) of the MMPA, 
which requires NMFS to authorize the incidental (but not intentional) 
take from a specified activity (in this case, in-water construction 
work associated with the Kalama Manufacturing and Marine Export 
Facility) in a specified geographic region for a one-year period if the 
relevant statutory standards are satisfied. The applicant for an IHA 
describes the specified activity for which the IHA is requested, and 
need not be a federal action agency. The IHA does not evaluate 
interrelated and interdependent activities of the specified activity. 
As Steller sea lions, California sea lions, and harbor seals are the 
only marine mammal species anticipated to occur in the specified area, 
these are the appropriate species considered for the IHA.

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 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

[[Page 56308]]

 
2006............................           3,650              72              11               3              86
2007............................           4,433              71               9               2              82
2008............................           5,131              82              39               2             123
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 of Specified Activities on Marine Mammals and Their 
Habitat

    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 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's 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 authorized Level B harassment take 
for this 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 or linger longer than 
expected, a small number of takes by Level A harassment is now 
authorized. Finally, the pile driving duration informing the 
calculation of Level A harassment zone sizes has changed from the 
notice of the proposed IHA as a result of a public comment received. As 
seals are not transiting to the Bonneville Dam similar to sea lions, 
and may spend more time in the project vicinity, the duration has been 
doubled for these species for impact driving of concrete piles and for 
vibratory driving of steel piles. For impact driving of steel piles, 
the duration was kept at the original one hour due to the fact that 
impact driving of these piles would only occur briefly (for proofing) 
if at all.

                                                        Table 2--Inputs for NMFS User Spreadsheet
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                                                                   Vibratory pile driving                                        Impact pile driving
                        Input parameter                                    (steel)             Impact pile driving (steel)           (concrete)
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Weighting Factor Adjustment \1\...............................                           2.5                             2                             2
Source Level (SL) \2\.........................................                           170                           178                           166
Duration \3\..................................................                       2 hours                        1 hour                       2 hours
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
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\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's 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 for California and Steller sea lions, 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. For harbor seals, a two-hour duration was
  used, as they may be transiting between two sites (one approximately one mile upstream and one approximately 3.5 miles downstream of the project
  area). Given that these animals may transit back and forth between these two sites, the duration was doubled.


[[Page 56309]]


                                  Table 3--Estimated Take Authorized 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.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 IHA with the exception of a change in the required monitoring 
distance to avoid Level A harassment takes. In summary, mitigation 
includes implementation of shut down procedures if any marine mammal 
approaches or enters the Level A harassment zone for pile driving (26 m 
(85 feet (ft)) for vibratory pile driving of steel piles; 63 m (207 ft) 
for impact driving of concrete piles; and 252 m (828 ft) for impact 
driving of steel piles). 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 must cease and 
vessels must reduce speed to the minimum level required to maintain 
steerage and safe working conditions. One trained observer must 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 must be on duty during impact driving at 
all times. As discussed above, one observer must monitor and implement 
shutdowns and collect information at each pile driving location at all 
times. In addition, two shore-based observers are required (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 
must 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 harassment takes. Similar to requirements for impact driving, 
the first observer must be positioned on a work platform or barge where 
the entirety of the shutdown zone can be monitored. Shore based 
observers must 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 may 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 must 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 must be used 
for sound attenuation. If water velocity is 1.6 ft per second (1.1 
miles per hour (mph)) or less for the entire installation period, the 
pile being driven must 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 mph) at any point 
during installation, the pile being driven must 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 current 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 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 permanent threshold shift (PTS) does not meaningfully change 
our analysis, nor does it change our findings/determinations. This 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 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.

National Environmental Policy Act

    In compliance with the NEPA 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 EA to 
consider the direct, indirect and cumulative effects to the human 
environment resulting from our previous IHA 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-

[[Page 56310]]

2018 IHA to the POK. Also in compliance with NEPA and the CEQ 
regulations, as well as NOAA Administrative Order 216-6, NMFS made a 
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 determined that 
our current 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 determined that the issuance of the IHA qualifies 
to be categorically excluded from further NEPA review. We have reviewed 
all comments submitted in response to this notice prior to concluding 
our NEPA process and making our final decision on the 2018-2019 IHA 
request.

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 
marine mammal 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.

Authorization

    NMFS has issued an IHA to POK for the incidental take of marine 
mammals due to in-water construction work associated with the POK 
Expansion Project for a period of one year, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated.

    Dated: November 6, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2018-24665 Filed 11-9-18; 8:45 am]
 BILLING CODE 3510-22-P