[Federal Register Volume 84, Number 90 (Thursday, May 9, 2019)]
[Notices]
[Pages 20336-20342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09520]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG888


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the South Basin Improvements 
Project at the San Francisco Ferry Terminal

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

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

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SUMMARY: NMFS received a request from the San Francisco Bay Area Water 
Emergency Transportation Authority (WETA) for the Renewal of their 
currently active incidental harassment authorization (IHA) to take 
marine mammals incidental to the Downtown San Francisco Ferry Terminal 
Expansion Project in San Francisco, California. These activities 
consist of activities that are covered by the current authorization but 
will not be completed prior to its expiration. Pursuant to the Marine 
Mammal Protection Act (MMPA), prior to issuing the currently active 
IHA, NMFS requested comments on both the proposed IHA and the potential 
for renewing the initial authorization if certain requirements were 
satisfied. The Renewal requirements have been satisfied, and NMFS is 
now providing an additional 15-day comment period to allow for any 
additional comments on the proposed Renewal not previously provided 
during the initial 30-day comment period.

DATES: Comments and information must be received no later than May 24, 
2019.

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 
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act 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.

FOR FURTHER INFORMATION CONTACT: Jordan Carduner, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: 
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing 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 is 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 here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a Renewal for this activity, and 
requested public comment on a potential Renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-year IHA Renewal 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 a second IHA would allow for completion of the 
activities

[[Page 20337]]

beyond that described in the Dates and Duration section of the initial 
IHA. All of the following conditions must be met in order to issue a 
Renewal:
     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 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures remain the same and appropriate, 
and the initial findings remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential Renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA Renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested Renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment. This action is consistent with categories of 
activities identified in Categorical Exclusion B4 (incidental 
harassment authorizations with no anticipated serious injury or 
mortality) 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 IHA Renewal 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 IHA request.

History of Request

    On May 31, 2018, NMFS issued an IHA to WETA to take marine mammals 
incidental to pile driving activities associated with the Downtown San 
Francisco Ferry Terminal Expansion Project, South Basin Improvements 
Project in San Francisco, California, effective from June 1, 2018, 
through May 30, 2019 (83 FR 28826; June 21, 2018). On March 5, 2019, 
NMFS received an application for the Renewal of that IHA. As described 
in the application for Renewal, the activities authorized in the 
initial IHA would not be completed by the time that IHA expires and a 
second IHA would allow for completion of the activities beyond that 
described in the Dates and Duration section of the initial IHA. As 
required, the applicant also provided a preliminary monitoring report 
(available at www.fisheries.noaa.gov/action/incidental-take-authorization-sf-bay-area-water-emergency-transportation-authority-ferry-0) which confirms that the applicant has implemented the required 
mitigation and monitoring, and which also shows that no impacts of a 
scale or nature not previously analyzed or authorized have occurred as 
a result of the activities conducted.

Description of the Specified Activities and Anticipated Impacts

    WETA proposes to continue to expand the berthing capacity at the 
Downtown San Francisco Ferry Terminal, located at the San Francisco 
Ferry Building, to support existing and future planned water transit 
services operated on San Francisco Bay by WETA and WETA's emergency 
operations. The Downtown San Francisco Ferry Terminal Expansion Project 
includes the construction of three new water transit gates and 
overwater berthing facilities, in addition to supportive landside 
improvements, such as additional passenger waiting and queueing areas, 
circulation improvements, and other water transit-related amenities. 
The new gates and other improvements would be designed to accommodate 
future planned water transit services between Downtown San Francisco 
and Antioch, Berkeley, Martinez, Hercules, Redwood City, Richmond, and 
Treasure Island, as well as emergency operation needs. All piles would 
be driven during the authorized in-water work window of June 1 to 
November 30, 2019.
    The specified activities described for this renewal are an 
identical subset of the activities covered by the initial 2018 IHA. 
NMFS previously published notices of proposed IHA (83 FR 18507; April 
27, 2018) and issued IHA (83 FR 28826; June 21, 2018). These documents, 
as well as WETA's initial IHA application and the preliminary 
monitoring report for the previously issued IHA, are available at:  
https://www.fisheries.noaa.gov/action/incidental-take-authorization-sf-bay-area-water-emergency-transportation-authority-ferry-0.
    Similarly, the anticipated impacts are identical to those described 
in the initial IHA. Specifically, we anticipate the take of seven 
marine mammal stocks (including three cetacean and four pinniped 
stocks), by Level B harassment only, incidental to noise as a result of 
pile driving associated with the proposed activities. WETA was not able 
to complete the pile driving activities analyzed in the initial IHA by 
the date that IHA is set to expire and anticipates the need for 
additional piles driving to complete the project in 2019.
    The following documents are referenced in this notice and include 
important supporting information, and may be found at the indicated 
location:
     Initial Proposed IHA: Takes of Marine Mammals Incidental 
to Specified Activities; Taking Marine Mammals Incidental to the South 
Basin Improvements Project at the San Francisco Ferry Terminal (83 FR 
18507; April 27, 2018). Available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sf-bay-area-water-emergency-transportation-authority-ferry-0;
     Initial Final IHA. Takes of Marine Mammals Incidental to 
Specified Activities; Taking Marine Mammals Incidental to the South 
Basin Improvements Project at the San Francisco Ferry Terminal (83 FR 
28826; June 21, 2018). Available at:  https://www.fisheries.noaa.gov/
action/incidental-take-authorization-sf-bay-

[[Page 20338]]

area-water-emergency-transportation-authority-ferry-0; and
     Preliminary Monitoring Report from Initial IHA. Available 
at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sf-bay-area-water-emergency-transportation-authority-ferry-0.

Detailed Description of the Activity

    As described above, WETA was not able to complete the activities 
analyzed in the initial IHA by the date that IHA is set to expire (June 
1, 2019). As such, the activities WETA proposes to conduct in 2019 
would be a continuation of the activities as described in the initial 
2018 IHA and would be identical to the activities analyzed in the 
initial IHA (same location, equipment, methods, and seasonality). The 
initial IHA analyzed the potential impacts to marine mammals from the 
construction of new water transit gates and other improvements to the 
ferry terminal. The new water transit gates and other improvements are 
designed to accommodate future planned water transit services, 
including an increase in peak-period WETA vessel arrivals from 14 to 
approximately 30, and an expansion of WETA services to accommodate more 
weekday passengers.
    Construction of the project improvements requires pile driving. 
Pile driving for the project includes impact or vibratory pile driving 
associated with construction of the berthing structures, the 
Embarcadero Plaza, and East Bayside Promenade. Pile driving would occur 
during daylight hours only and one hammer would be used at a time. 
Vibratory driving of 24-in and 30-in piles may take up to 15 minutes 
per pile while vibratory driving of 36-in piles may take up to 20 
minutes per pile. Piles driven with an impact hammer would require an 
estimated 1800 strikes per pile, regardless of pile size. Underwater 
sound resulting from pile driving could result in the harassment of 
marine mammals.
    Much of the pile driving associated with the project was completed 
in 2017 and 2018 and was covered previous IHAs. All pile driving 
completed in 2017 and 2018 was vibratory; no impact pile driving was 
conducted. The numbers of each pile size that were planned to be driven 
during 2018 are shown in Table 1 of the 2018 IHA application (available 
at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sf-bay-area-water-emergency-transportation-authority-ferry-0). WETA planned to install 81 steel piles, ranging in diameter 
from 24 to 36 in in diameter, during 2018. However, as described above, 
WETA was not able to complete all pile driving in 2018 as planned and 
therefore proposes to complete pile driving associated with the 
proposed activities in 2019. WETA installed a total of 52 piles in 2018 
over approximately 21 construction days, and anticipates a total of 29 
additional piles would need to be installed in 2019 to complete the 
project. Thus, the total number of piles driven in 2018 and 2019 
combined would not exceed the total number described and analyzed in 
the previously issued IHA (81 piles total). A minor change in design 
plans would result in the installation of five more 36-inch piles and 
five less 24-in piles that originally planned to complete the work. The 
proposed Renewal would be effective for a period of one year from the 
date of issuance.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Notice of proposed IHA (83 FR 18507; April 27, 2018) for the initial 
authorization. NMFS has reviewed the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the Description of the Marine Mammals in the 
Area of Specified Activities contained in the supporting documents for 
the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Notice of proposed IHA for the 
initial authorization (83 FR 18507; April 27, 2018). NMFS has reviewed 
the monitoring data from the initial IHA, recent draft Stock Assessment 
Reports, information on relevant Unusual Mortality Events, and other 
scientific literature, and determined that neither this nor any other 
new information affects our initial analysis of impacts on marine 
mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Notice of proposed IHA 
(83 FR 18507; April 27, 2018) and issued IHA for the initial 
authorization (83 FR 28826; June 21, 2018). The pile driving equipment 
that may result in take, as well as the source levels, marine mammal 
stocks taken, marine mammal density data and the methods of take 
estimation applicable to this authorization remain unchanged from the 
previously issued IHA.
    Authorized takes would primarily be by Level B harassment as 
exposure to acoustic sources (i.e., impact and vibratory pile driving) 
has the potential to result in disruption of behavioral patterns for 
individual marine mammals. There is also some potential for auditory 
injury (Level A harassment) to result, primarily for harbor seals and 
California sea lions due to larger predicted auditory injury zones.
    As described above, WETA completed the installation of 52 piles in 
2018 and proposes to install 29 piles to complete the project in 2019. 
Piles would include 24-in, 30-in, and 36-in piles. The number of piles 
for each respective size proposed for installation in 2019 are shown in 
Table 1.

  Table 1--Number and Sizes of Piles Proposed for Installation in 2019, and Estimated Duration of Pile Driving
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                                                                                     Number of       Estimated
                                                                   Number to be        piles       construction
                          Pile diameter                              installed    installed  per     duration
                                                                                        day           (days)
----------------------------------------------------------------------------------------------------------------
24-in...........................................................               6             2.5               2
30-in...........................................................               8               3               3
36-in...........................................................              15               2               8
                                                                 -----------------------------------------------

[[Page 20339]]

 
    Total.......................................................              29             n/a              13
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    Distances to the isopleths corresponding to the Level B harassment 
threshold for each pile size and type are shown in Table 2. Distances 
to the isopleths corresponding to the Level A harassment thresholds for 
the various marine mammal functional hearing groups, by pile size and 
type, are shown in Table 3. Descriptions of the modeling methods used 
to determine the distances shown in Tables 2 and 3 are described in 
detail in the Notice of Issued IHA (83 FR 28826; June 21, 2018) for the 
initial IHA. These methods have not changed from the initial IHA, and 
all values shown in Table 2 and 3 have not changed from the initial 
IHA. No impact driving has been conducted on the project thus far and 
vibratory driving will be the most likely method of installation during 
2019 as well; however, the use of an impact hammer to install piles may 
be required in 2019 and the potential for impact driving is therefore 
included in the take analysis.

 Table 2--Distances to Isopleths Corresponding to the Level B Harassment
                                Threshold
------------------------------------------------------------------------
                                                            Distance to
                                                              Level B
            Pile size and installation method               harassment
                                                          threshold  (m)
------------------------------------------------------------------------
24-in Vibratory.........................................             651
24-in Impact............................................             341
30-in Vibratory.........................................             450
30-in Impact............................................             341
36-in Vibratory.........................................             940
36-in Impact............................................             541
------------------------------------------------------------------------


                 Table 3--Distances to Isopleths Corresponding to Level A Harassment Thresholds
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                                                  Distance to Level A harassment threshold  (m)
   Pile size and installation   --------------------------------------------------------------------------------
             method               Low-frequency   Mid-frequency   High-frequency      Phocid          Otariid
                                    cetaceans       cetaceans       cetaceans        pinnipeds       pinnipeds
----------------------------------------------------------------------------------------------------------------
24-in Vibratory................             3.1              <1                4               2              <1
24-in Impact...................             418              15              498             224              16
30-in Vibratory................               2              <1                3               1              <1
30-in Impact...................             418              15              498             224              16
36-in Vibratory................               5              <1                7               4              <1
36-in Impact...................             801              29              954             429              31
----------------------------------------------------------------------------------------------------------------

    As the number of pile driving days that would occur in 2019 is less 
than the number of pile driving days analyzed in the previous IHA, the 
number of takes estimated to occur in 2019, and proposed for 
authorization, has changed from the number of takes authorized in the 
initial IHA. Take numbers authorized in the initial IHA are shown in 
Table 11 of the 2018 Notice of Issued IHA (83 FR 28826; June 21, 2018), 
available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-sf-bay-area-water-emergency-transportation-authority-ferry-0.
    The number of takes proposed for authorization for this IHA, for 
each marine mammal stock, are shown in Table 4. Auditory injury (i.e., 
Level A harassment) is unlikely to occur for cetaceans, however, take 
by Level A harassment of harbor seals and California sea lions are 
proposed for authorization given their increased presence in the 
nearshore waters of the project site and the relatively large Level A 
harassment zones, especially for 36-in piles.

                                 Table 4--Total Takes Proposed for Authorization
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                                                                     Takes by        Takes by       Total takes
                             Species                                  Level A         Level B      proposed for
                                                                    harassment      harassment     authorization
----------------------------------------------------------------------------------------------------------------
Harbor seal.....................................................              20              83             103
Northern fur seal...............................................               0              10              10
California sea lion.............................................               8              92             100

[[Page 20340]]

 
Northern elephant seal..........................................               0              13              13
Gray whale......................................................               0               4               4
Bottlenose dolphin..............................................               0              30              30
Harbor porpoise.................................................               0              32              32
----------------------------------------------------------------------------------------------------------------

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Notice announcing the issuance of the initial IHA, and 
the discussion of the least practicable adverse impact included in that 
document remains accurate. The following measures are proposed for this 
renewal:

General Construction Measures

    A Spill Prevention Control and Countermeasure (SPCC) plan has been 
prepared to address the emergency cleanup of any hazardous material, 
and will be available onsite. The SPCC plan incorporates SPCC, 
hazardous waste, stormwater, and other emergency planning requirements. 
In addition, the project will comply with the Port's stormwater 
regulations. Fueling of land and marine-based equipment will be 
conducted in accordance with procedures outlined in the SPCC. Well-
maintained equipment will be used to perform work, and except in the 
case of a failure or breakdown, equipment maintenance will be performed 
offsite. Equipment will be inspected daily by the operator for leaks or 
spills. If leaks or spills are encountered, the source of the leak will 
be identified, leaked material will be cleaned up, and the cleaning 
materials will be collected and properly disposed. Fresh cement or 
concrete will not be allowed to enter San Francisco Bay. All 
construction materials, wastes, debris, sediment, rubbish, trash, 
fencing, etc. will be removed from the site once project construction 
is complete, and transported to an authorized disposal area.

Pile Driving

    Pre-activity monitoring will take place from 30 minutes prior to 
initiation of pile driving activity and post-activity monitoring will 
continue through 30 minutes post-completion of pile driving activity. 
Pile driving may commence at the end of the 30-minute pre-activity 
monitoring period, provided observers have determined that the shutdown 
zone (described below) is clear of marine mammals, which includes 
delaying start of pile driving activities if a marine mammal is sighted 
in the zone, as described below. A determination that the shutdown zone 
is clear must be made during a period of good visibility (i.e., the 
entire shutdown zone and surrounding waters must be visible to the 
naked eye).
    If a marine mammal approaches or enters the shutdown zone during 
activities or pre-activity monitoring, all pile driving activities at 
that location shall be halted or delayed, respectively. If pile driving 
is halted or delayed due to the presence of a marine mammal, the 
activity may not resume or commence until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
and 15 or 30 minutes (for pinnipeds/small cetaceans or large cetaceans, 
respectively) have passed without re-detection of the animal. Pile 
driving activities include the time to install or remove a single pile 
or series of piles, as long as the time elapsed between uses of the 
pile driving equipment is no more than thirty minutes.
    For all pile driving activities, a minimum of one protected species 
observed (PSO) will be required, stationed at the active pile driving 
rig or at the best vantage point(s) practicable to monitor the shutdown 
zones for marine mammals and implement shutdown or delay procedures 
when applicable through communication with the equipment operator. Two 
PSOs will be required on days when impact pile driving occurs.
    Monitoring of pile driving will be conducted by qualified PSOs (see 
below) who will have no other assigned tasks during monitoring periods. 
WETA will adhere to the following conditions when selecting observers:
     Independent PSOs will be used (i.e., not construction 
personnel);
     PSOs must have prior experience working as a marine mammal 
observer during construction activities; and
     WETA will submit PSO CVs for approval by NMFS.
    WETA will ensure that observers have the following additional 
qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    To prevent Level A take of cetaceans, elephant seals, and Northern 
fur seals, shutdown zones equivalent to the Level A harassment zones 
would be established. If the Level A harassment zone is less than 10 m, 
a minimum 10 m shutdown zone will be enforced. WETA will implement 
shutdown zones as follows:

[[Page 20341]]



                                  Table 5--Proposed Pile Driving Shutdown Zones
----------------------------------------------------------------------------------------------------------------
                                                               Shutdown zone (m)
  Pile size and installation  ----------------------------------------------------------------------------------
            method              Low-frequency   Mid-frequency   High-frequency      Otariid
                                  cetaceans       cetaceans       cetaceans        pinnipeds    Phocid pinnipeds
----------------------------------------------------------------------------------------------------------------
24-in Vibratory..............              10              10               10              10  10.
24-in Impact.................             420              15              500              16  30 for harbor
                                                                                                 seals, 224 for
                                                                                                 all other
                                                                                                 species.
30-in Vibratory..............              10              10               10              10  10.
30-in Impact.................             420              15              500              16  30 for harbor
                                                                                                 seals, 224 for
                                                                                                 all other
                                                                                                 species.
36-in Vibratory..............              10              10               10              10  10.
36-in Impact.................             800              30              955              30  30 for harbor
                                                                                                 seals, 430 for
                                                                                                 all other
                                                                                                 species.
----------------------------------------------------------------------------------------------------------------

    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
takes are met, is observed approaching or within the Level B harassment 
zones, pile driving and removal activities must cease immediately using 
delay and shutdown procedures. Similarly, if a species for which take 
by Level A harassment has not been authorized, or a species for which 
authorization has been granted but the authorized takes are met, is 
observed approaching or within the Level A harassment zones, pile 
driving and removal activities must cease immediately. Activities must 
not resume until the animal has been confirmed to have left the area or 
15 or 30 minutes (pinniped/small cetacean or large cetacean, 
respectively) has elapsed.
    Piles driven with an impact hammer will employ a ``soft start'' 
technique to give fish and marine mammals an opportunity to move out of 
the area before full-powered impact pile driving begins. This soft 
start will include an initial set of three strikes from the impact 
hammer at reduced energy, followed by a 30 second waiting period, then 
two subsequent three-strike sets. Soft start will be required at the 
beginning of each day's impact pile driving work and at any time 
following a cessation of impact pile driving of 30 minutes or longer.
    Impact hammers will be cushioned using a 12-in thick wood cushion 
block. WETA will also employ a bubble curtain during impact pile 
driving. WETA will implement the following performance standards:
     The bubble curtain must distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column;
     The lowest bubble ring shall be in contact with the 
mudline for the full circumference of the ring, and the weights 
attached to the bottom ring shall ensure 100 percent mudline contact. 
No parts of the ring or other objects shall prevent full mudline 
contact; and
     WETA shall require that construction contractors train 
personnel in the proper balancing of air flow to the bubblers, and 
shall require that construction contractors submit an inspection/
performance report for approval by WETA within 72 hours following the 
performance test. Corrections to the attenuation device to meet the 
performance standards shall occur prior to impact driving.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has determined that the mitigation measures provide the means of 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Public Comments

    As noted previously, NMFS published a notice of proposed IHA (83 FR 
18507; April 27, 2018) and solicited public comments on both our 
proposal to issue the initial IHA and on the potential for a Renewal, 
should certain requirements be met. All public comments were addressed 
in the notice announcing the issuance of the initial IHA. Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
Renewal of the 2018 IHA.
    Comment: The Marine Mammal Commission (Commission) requested 
clarification of certain issues associated with NMFS's notice that one-
year Renewals can be issued in certain limited circumstances and 
expressed concern that the process would bypass the public notice and 
comment requirements. The Commission also suggested that NMFS should 
discuss the possibility of Renewals through a more general route, such 
as a rulemaking, instead of notice in a specific authorization. The 
Commission further recommended that if NMFS did not pursue a more 
general route, that the agency provide the Commission and the public 
with a legal analysis supporting our conclusion that this process is 
consistent with the requirements of section 101(a)(5)(D) of the MMPA.
    Response: The notice of the proposed initial IHA expressly notified 
and invited comment from the public on the possibility that under 
certain, limited conditions the applicant could seek a Renewal IHA for 
an additional year. The notice described the conditions under which 
such a Renewal request could be considered and expressly sought public 
comment in the event such a Renewal were sought. Further, since 
issuance of the initial IHA NMFS has modified the Renewal process to 
provide notice through the Federal Register and an additional 15-day 
public comment period at the time the Renewal IHA is requested. NMFS 
also will provide direct notice of the proposed Renewal to those who 
commented on the initial IHA, to provide an opportunity to submit any 
additional comments.
    We appreciate the Commission's suggestion that NMFS discuss the 
potential for IHA Renewals through a more general route, such as a 
rulemaking. However, utilizing the public comment process associated 
with IHAs is more efficient for the agency, while still providing for 
appropriate public input into NMFS' decision-making. Further, NMFS' 
recent modification to the Renewal process (i.e., soliciting additional 
public comment at the time of a Renewal request) should alleviate the 
Commission's concern about the lack of additional public comment and 
need for a more general rulemaking.
    For more information, NMFS has published a description of the 
Renewal process on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

Preliminary Determinations

    WETA's proposed activity is identical to the activity analyzed in 
our previously issued notices of proposed IHA and issued IHA (with the 
exception of the number of piles proposed for installation, which is 
less than the number analyzed in those documents).

[[Page 20342]]

We concluded that the initial IHA would have a negligible impact on all 
marine mammal stocks and species and that the taking would be small 
relative to population sizes. The marine mammal information, potential 
effects, and the mitigation and monitoring measures remain the same as 
those analyzed in the previously issued notices of proposed IHA and 
issued IHA, therefore the extensive analysis, as well as the associated 
findings, included in the prior documents remain applicable.
    The only differences between the initial IHA and this proposed 
Renewal is that the number of piles proposed for installation, and the 
numbers of marine mammal takes expected to occur incidental to the 
proposed activities, are lower than the numbers analyzed and authorized 
in the previously issued IHA. As both the number of piles proposed for 
installation and the number of takes expected to occur, and proposed 
for authorization, are lower than in the initial IHA, we have concluded 
that the effects of the proposed Renewal would be the same or less than 
those that were analyzed in the notices of the initial proposed IHA and 
issued IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) The required mitigation measures will effect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) WETA'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, and; 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (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. No incidental take of ESA-listed species is proposed for 
authorization or expected to result from WETA's proposed activity. 
Therefore, NMFS has determined that formal consultation under section 7 
of the ESA is not required for this action.

Proposed Renewal and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA Renewal to WETA for conducting ferry terminal expansion 
activities at the Downtown San Francisco Ferry Terminal, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, the 
proposed Renewal, and any other aspect of this Notice. Please include 
with your comments any supporting data or literature citations to help 
inform our final decision on the request for MMPA authorization.

    Dated: May 3, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-09520 Filed 5-8-19; 8:45 am]
 BILLING CODE 3510-22-P