[Federal Register Volume 78, Number 206 (Thursday, October 24, 2013)]
[Rules and Regulations]
[Pages 63396-63405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25089]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[130325286-3653-01]
RIN 0648-BC69
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Replacement of the Elliott Bay Seawall in Seattle,
Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS, upon application from the City of Seattle's Department
of Transportation (SDOT), is issuing regulations to govern the
unintentional taking of marine mammals incidental to construction
associated with the replacement of the Elliott Bay Seawall in Seattle,
Washington, for the period October 2013 to October 2018. These
regulations allow for the issuance of Letters of Authorization (LOAs)
for the incidental take of marine mammals during the described
activities and specified timeframes, and prescribe the permissible
methods of taking and other means of effecting the least practicable
adverse impact on marine mammal species or stocks and their habitat, as
well as requirements pertaining to the monitoring and reporting of any
takings.
DATES: Effective October 21, 2013, through October 21, 2018.
ADDRESSES: A copy of SDOT's application and other supplemental
documents, may be obtained by visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents
cited in this notice may also be viewed, by appointment, during regular
business hours, at the Office of Protected Resources, National Marine
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225.
FOR FURTHER INFORMATION CONTACT: Michelle Magliocca, Office of
Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, 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 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), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined `negligible impact' in 50 CFR 216.103
as ``an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.''
Except with respect to certain activities not pertinent here, the
MMPA defines `harassment' as: ``any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild [``Level A harassment'']; or (ii) has
the potential to disturb a marine mammal or marine mammal stock in the
wild by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [``Level B harassment''].''
Summary of Request
On September 17, 2012, NMFS received a complete application from
SDOT requesting authorization for the take of nine marine mammal
species incidental to replacement of the Elliott Bay Seawall in
Seattle, Washington, over the course of 5 years. The purpose of the
project is to reduce the risks of coastal storm and seismic damage and
to protect public safety, critical infrastructure, and associated
economic activities in the area. Additionally, the project would
improve the degraded ecosystem functions and processes of the Elliott
Bay nearshore around the existing seawall. Noise produced during pile
installation and removal activities has the potential to take marine
mammals. SDOT requested, and NMFS will authorize through associated
Letters of Authorization (LOAs), the take of nine marine mammal species
by Level B harassment only: Pacific harbor seal (Phoca vitulina),
California sea lion (Zalophus californianus), Steller sea lion
(Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's
porpoise (Phocoenoides dalli), southern resident and transient killer
whales (Orcinus orca), humpback whale (Megaptera novaengliae), and gray
whale (Eschrichtius jubatus). Injury or mortality is unlikely during
the project, and take by Level A harassment (including injury) or
mortality is not authorized.
Description of the Specified Activity
The proposed rule contains a complete description of SDOT's
specified activities that are covered by these final regulations, and
for which the associated incidental take of marine mammals will be
authorized in the related LOAs (78 FR 22096, April 12, 2013). In
summary, SDOT proposes to replace the Elliott Bay Seawall from South
Washington Street to Broad Street, along the Seattle waterfront
abutting Elliott Bay in King County, Washington. The purpose of the
project is to reduce the risks of coastal storm and seismic damages and
to protect public safety, critical infrastructure, and associated
economic activities along Seattle's central waterfront. Additionally,
the project will improve nearshore ecosystem functions and processes in
the vicinity of the existing seawall. The project will be constructed
in two phases: Phase 1 will extend for about 3,600 linear feet (ft) (1
kilometer (km)) from South Washington Street to Virginia Street, and
Phase 2 will extend for about 3,500 linear ft (1 km) from Virginia to
Broad Streets.
The new seawall will be constructed landward of the existing
seawall face and result in a net setback of the wall from its existing
location. The majority of seawall construction will occur behind a
temporary steel sheet pile containment wall that will be placed
waterward of the existing seawall complex and extend the full length of
the construction work area during each construction season. The
narrative description of the project contained in the proposed rule has
not changed and is not repeated in full here. Tables 1, 2, and 3 below
list the methods, durations, and locations of pile driving activities.
[[Page 63397]]
Table 1--Temporary Containment Wall Installation and Removal
[Steel sheet piles only]
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Pile pairs \1\
(10% Maximum Maximum hours Installation/ removal
Construction phase contingency duration per day method
included) (days)
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Installation
Phase 1 (Years 1-3)............ 1,023 60 12 vibratory.
Estimated number of piles that 205 \3\ 4 10 impact.
would require proofing \2\.
Phase II (Years 4-5)........... 717 40 12 vibratory.
Estimated number of piles that 143 \4\ 3 10 impact.
would require proofing \2\.
Removal
Phase I........................ 1,023 25 12 vibratory.
Phase II....................... 717 15 12 vibratory.
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Total Installed/Removed.... 1,740 .............. .............. ...........................
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\1\ Steel sheet pile pairs only (48 inches wide), which are two interlocking sheet piles installed as one unit.
\2\ Number equals 20 percent of estimated number of piles installed per phase.
\3\ Total estimated installation time is 8 hours of actual impact driving.
\4\ Total estimated installation time is 12 hours of actual impact driving.
Table 2--Existing Pile Removal
[Timber and concrete piles only]
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Maximum Maximum
Construction phase Piles \1\ Pile type Justification for duration hours per Removal method
removal (days) day
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Phase 1 (Excluding Washington Street 20 Creosote-treated Currently not used; 2 12 vibratory.
Boat Landing). timber \2\. from previous uses
along wall.
Phase I (Washington Street Boat 8 Creosote-treated Support existing pier 1 12 vibratory.
Landing Only). timber \2\. structure.
Phase II............................ 49 Creosote-treated Currently not used; 2 12 vibratory.
timber \2\. from previous uses
along wall.
Phase II............................ 3 Concrete \3\.......... Currently not used; 1 12 vibratory.
from previous uses
along wall.
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Total Removed................... 80 ...................... ...................... 6 ........... ...........................
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\1\ Number includes 10 percent contingency.
\2\ Assumed to be 14-in diameter.
\3\ Assumed to be 18-in diameter.
Table 3--Permanent Pile Installation
[16.5-in-diameter (42-cm) precast concrete octagonal piles only]
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Maximum
Construction phase Piles Justification for duration Maximum hours Installation method
installation (days) per day
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Phase I (Excluding Washington Street 92 To support sidewalk, 11 10 impact.
Boat Landing). viewing areas, and
vehicular traffic access.
Phase I (Washington Street Boat Landing 15 To support new pier 2 10 impact.
Only). structure.
Phase II................................ 83 To support sidewalk and 10 10 impact.
viewing areas.
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Total Installed..................... 190 ........................... 23 .............. .................................
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Dates and Duration of Specified Activity
Seawall construction is expected to occur in two phases: Phase 1,
which includes the area of the Central Seawall, and Phase 2, which
includes the area of the North Seawall (Table 4). Phase 1 includes
three construction segments, and Phase 2 includes two construction
segments; each segment represents 1 to 2 years of construction.
Construction is scheduled to begin with Phase I work in fall 2013. The
three segments of Phase 1 will be constructed over three construction
seasons with two summer shutdown periods from Memorial Day weekend
through Labor Day weekend to accommodate the primary tourist and
business season. Phase 2 construction is expected to begin following
completion of Phase 1 and will occur over two 2-
[[Page 63398]]
year construction seasons with a summer shutdown period each year.
SDOT's request covers the construction period from 2013 to 2018, from
the start of Phase 1, Segment 1 to the end of Phase 2, Segment 1. A
request for another MMPA authorization would be submitted for any
further construction.
Table 4--Proposed Project Construction Schedule
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Phase Segment Duration
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1 (Central Seawall).......... I.................. Year 1 (Fall 2013-
Spring 2014).
II................. Year 2 (Fall 2014-
Spring 2015).
III................ Year 3 (Fall 2015-
Spring 2016).
2 (North Seawall)............ I.................. Years 4 and 5 (Fall
2016-Spring 2018).
II................. Years 6 and 7 (Fall
2018-Spring 2020).*
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*Note: Years 6 and 7 will not be covered under this LOA request because
the MMPA limits incidental take authorizations to 5-year periods.
Specified Geographical Region
The description of the specified geographical region has not
changed from the proposed rule and a summarized version is provided
here. The Elliott Bay Seawall runs along the downtown Seattle
waterfront in King County, Washington. SDOT's project will occur
between South Washington Street and Broad Street, which abut Elliott
Bay, a 21-square kilometer (km\2\) urban embayment in central Puget
Sound. This is an important industrial region and home to the Port of
Seattle, which ranked as the nation's sixth busiest U.S. seaport in
2010.
The region of the specified activity (or ``area of potential
effects,'' as described in SDOT's application) is the area in which
elevated sound levels from pile-related activities could result in the
take of marine mammals. This area includes the proposed construction
zone, Elliott Bay, and a portion of Puget Sound. The area of in-water
pile installation and removal activities will be restricted to the
length of the seawall and waterward to within 15 ft (4.6 m) of the
seawall face, and to depths less than 30 feet (9.1 m). Sounds from
vibratory pile installation may propagate up to 2.5 miles (4 km) from
the sound source with high enough sound levels to meet NMFS' acoustic
threshold criteria for marine mammal harassment (see Sound Thresholds
section below).
Brief Background on Sound
The proposed rule contains a section that provides a brief
background on the principles of sound that are frequently referred to
in this rulemaking (78 FR 22096, pages 22099-22102). This section also
includes a discussion of the functional hearing ranges of the different
groups of marine mammals (by frequency) as well as a discussion of the
two main sound metrics used in NMFS' analysis (sound pressure level and
sound energy level), a description of the sound produced by different
pile installation/removal methods (pulsed vs. non-pulsed sounds), and
how NMFS' acoustic threshold criteria applies to SDOT's project. The
information in the proposed rule has not changed and is not repeated
here.
Description of Marine Mammals in the Area of the Specified Activity
Nine marine mammal species, including ESA-listed distinct
population segments, have the potential to occur in the area of the
specified activity (Table 5). All nine species have been observed in
Puget Sound at certain periods of the year. The proposed rule contains
a discussion of each species' description, status, behavior and
ecology, and vocalizations. The Description of Marine Mammals in the
Area of the Specified Activity has not changed from what was in the
proposed rule (78 FR 22096, pages 22102-22108).
Table 5--Marine Mammal Species or ESA-Listed Distinct Population Segments That Could Occur in the Proposed Project Area
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Likelihood of
Common name Scientific name ESA status MMPA status Abundance Population status occurrence Seasonality
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Pinnipeds
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Pacific harbor seal.............. Phoca vitulina...... ..................... ..................... n/a.................... unknown............. Occasional.......... Year-round
California sea lion.............. Zalophus ..................... ..................... 296,750................ increasing.......... Occasional.......... August-April
californianus.
Steller sea lion................. Eumetopias jubatus.. Threatened........... Depleted............. 58,334-72,223.......... increasing.......... Rare................ August-April
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Cetaceans
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Harbor porpoise.................. Phocoena phocoena... ..................... ..................... unknown................ unknown............. Rare................ Year-round
Dall's porpoise.................. Phocoenoides dalli.. ..................... ..................... 42,000................. unknown............. Rare................ Winter-Spring
Southern resident killer whale Orcinus orca........ Endangered........... ..................... 84..................... unknown............. Occasional.......... Year-round
DPS.
Transient killer whale........... Orcinus orca........ ..................... ..................... 346.................... unknown............. Rare................ Year-round
Humpback whale................... Megaptera Endangered........... Depleted............. 2,043.................. increasing.......... Rare................ February-June
novaengliae.
Gray whale....................... Eschrichtius ..................... ..................... 18,000................. increasing.......... Rare................ January-September
robustus.
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[[Page 63399]]
Potential Effects of the Specified Activity on Marine Mammals
In the Potential Effects of the Specified Activity on Marine
Mammals section of the proposed rule, NMFS included a qualitative
discussion of the different ways that in-water construction activities
associated with the Elliott Bay Seawall project may potentially affect
marine mammals (78 FR 22096, pages 22108-22113). Marine mammals may
experience direct physiological effects (such as threshold shift),
acoustic masking, impaired communications, stress responses, and
behavioral disturbance. The information contained in this section of
the proposed rule has not changed and is not repeated here.
Mitigation
In order to issue an incidental take authorization under section
101(a)(5)(A) of the MMPA, NMFS must, where applicable, set forth the
permissible methods of taking pursuant to such activity, and other
means of effecting the least practicable adverse impact on such species
or stock and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance, and on the
availability of such species or stock for taking for certain
subsistence uses (where relevant).
NMFS reviewed the proposed Elliott Bay Seawall project activities
and the proposed mitigation measures as described in SDOT's application
to determine if they would result in the least practicable adverse
effect on marine mammals. The proposed rule included a list of proposed
mitigation measures, which were carried over to the regulatory text of
this document and are listed below. In addition, boat-based observers
may be used to monitor the exclusion zones during poor visibility in
areas of open water. Exclusion zones and thresholds located close to
the source of pile-related noise will be demarcated with temporary
buoys, as feasible.
Based on our evaluation of the proposed measures and other measures
considered by NMFS or recommended by the public during the public
comment period, NMFS has determined that the required mitigation
measures (including the Adaptive Management component, see below)
constitute means of effecting the least practicable adverse impact on
marine mammal species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance. The proposed rule contains further support for this
finding in the Mitigation Conclusion section (78 FR 22096, page 22115).
During the public comment period, one mitigation measure not previously
considered was recommended, and is included in the Comments and
Responses section of this document. In summary, SDOT will implement the
following mitigation measures:
Limited impact pile driving;
Containment of impact pile driving;
Additional attenuation measures (e.g., bubble curtains, as
necessary);
Ramp-up of pile driving operations;
Marine mammal exclusion zones;
Shutdown and delay procedures; and
Boat-based mitigation monitoring, as necessary.
Monitoring
In order to issue an incidental take authorization for an activity,
section 101(a)(5)(A) of the MMPA states that NMFS must set forth, where
applicable, ``requirements pertaining to the monitoring and reporting
of such taking.'' The MMPA implementing regulations at 50 CFR 216.104
(a)(13) indicate that requests for incidental take authorizations must
include the suggested means of accomplishing the necessary monitoring
and reporting that will result in increased knowledge of the species
and of the level of taking or impacts on populations of marine mammals
that are expected to be present.
NMFS reviewed the proposed monitoring plan as described in SDOT's
application. The proposed rule included a list of proposed monitoring
measures, which have been carried over in the regulatory text of this
document. During the public comment period, a monitoring measure not
previously considered was recommended, and is included in the Comments
and Responses section of this document. SDOT's required monitoring
measures are as follows:
Shore-based visual monitoring; and
Acoustic monitoring to confirm estimated noise levels.
Adaptive Management
In accordance with 50 CFR 216.105(c), regulations for the specified
activity must be based on the best available information. The use of
adaptive management allows NMFS to consider new information from
different sources to determine if mitigation or monitoring measures
should be modified (including additions or deletions) if new data
suggest that such modifications are appropriate. The following are some
of the possible sources of applicable data:
Results from SDOT's monitoring from the previous year;
Results from general marine mammal and sound research; or
Any information revealing that marine mammals may have
been taken in a manner, extent, or number not authorized by these
regulations or subsequent LOAs.
Reporting
In order to issue an incidental take authorization for an activity,
section 101(a)(5)(A) of the MMPA states that NMFS must set forth
``requirements pertaining to the monitoring and reporting of such
taking.'' Effective reporting is critical both to compliance as well as
ensuring that the most value is obtained from the required monitoring.
The proposed rule contains the reporting requirements for SDOT, and
these requirements remain unchanged (78 FR 22096, pages 22116-22117).
Comments and Responses
On April 12, 2013 (78 FR 22096), NMFS published a proposed rule in
response to SDOT's request to take marine mammals incidental to the
Elliott Bay Seawall project and solicited comments, information, and
suggestions concerning the proposed rule. NMFS received one comment
letter from the Marine Mammal Commission (Commission). The comments are
summarized and addressed below.
Comment 1: The Commission recommended that NMFS (1) Justify its
conclusion that taking up to 19 percent of the southern resident killer
whale population each year would be considered ``small numbers,'' (2)
provide a basis for that threshold, and (3) work with the Fish and
Wildlife Service and the Commission to develop a policy that sets forth
the criteria and/or thresholds for determining what constitutes ``small
numbers'' and ``negligible impact'' for the purpose of authorizing
incidental takes of marine mammals.
Response: Section 101(a)(5)(A) of the MMPA allows for the
incidental take of small numbers of marine mammals of a species or
population stock. Since there are only 84 animals (the proposed rule
mistakenly said 86, but 84 is considered the best available data from
the Center for Whale Research in Friday Harbor, Washington; this does
not change our small numbers finding) in the Eastern North Pacific
Southern Resident stock, 16 animals equates to 19 percent of the stock.
We believe the take of 16 animals represents a small number relative to
the affected species or stock. This is consistent with small numbers
[[Page 63400]]
determinations that NMFS has made in the past for this stock (see,
e.g., 78 FR 23910, April 23, 2013).
During vibratory pile driving, sound levels that meet NMFS' current
acoustic threshold for Level B harassment may extend 6,276 meters (3.9
miles) from the seawall and into Puget Sound. The Eastern North Pacific
Southern Resident stock of killer whales is known to transit this
portion of Puget Sound and may be in the area during in-water pile
driving activities. Because it is not practicable for SDOT to shut down
or delay pile driving activities whenever a large whale is anywhere
within almost 4 miles from the seawall, NMFS decided to authorize the
take of 16 southern resident killer whales by Level B behavioral
harassment. The southern resident killer whales most likely to be in
the area are part of the J-pod, which has 26 members. The entire J-pod
may transit through the action area more than once in a single year.
However, here killer whales tend to stay near the open channel, farther
away from the sound source; moreover, the size and sightability of the
animals makes shutdown/delay of pile driving operations feasible even
out to the edge of the Level B harassment isopleth for vibratory pile
driving. So, killer whales are not expected to enter zones where
harassment may occur often, but effective mitigation is in place to
minimize take to the degree necessary. Although shutting down is
possible, because it incurs a cost to activity effectiveness, the
applicant requested NMFS authorize the Level B take of 16 animals.
Because this percentage of the stock (19 percent) is relatively small
and we were able to make a negligible impact determination, NMFS is
authorizing that take.
NMFS has required numerous mitigation measures that apply to large
whales, including exclusion zones during impact and vibratory pile
driving to prevent the take of large whales by Level A harassment and
reduce the take of large whales by Level B harassment. While the large
whale exclusion zone (3,981 m [2.5 miles]) does not extend to the Level
B harassment isopleth for vibratory pile driving, it does cover a
majority of the radius and allows for protected species observers to
easily monitor the entrance of Elliott Bay from land. The entire J-pod
(26 animals) may travel together, but once 16 individuals enter the
Level B harassment zone (which will be continuously monitored by visual
observers) during vibratory pile driving activities over a 1-year
period, SDOT will shutdown or delay pile driving operations for the
remainder of the year if a southern resident killer whale approaches
the Level B harassment zone (i.e., only 16 southern resident killer
whales may be exposed to sound levels equating to Level B harassment
each year).
The rationale for our decisions on each authorization requested,
including our negligible impact and small numbers determinations, is
provided in the required Federal Register notice and underlying
administrative records. NMFS strives to ensure that decisions across
our program are systematic, consistent, and transparent. As we have
done in the past, NMFS will continue to collaborate with the Commission
and U.S. Fish and Wildlife Service on a variety of MMPA issues,
including small numbers and negligible impact, to strengthen our
collective understanding of how activities affect marine mammal species
and stocks.
Comment 2: The Commission recommended that NMFS require the
applicant to implement ramp-up procedures (1) after 15 minutes, if pile
driving or removal is delayed or shutdown due to the presence of a
pinniped or small cetacean within or approaching the exclusion zone, or
(2) after 30 minutes, if pile driving or removal is delayed or shutdown
due to the presence of a medium- or large-sized cetacean.
Response: NMFS has added a mitigation measure requiring the
applicant to implement ramp-up procedures (1) after 15 minutes, if pile
driving or removal is delayed or shutdown due to the presence of a
small cetacean within or approaching the exclusion zone, or (2) after
30 minutes, if pile driving or removal is delayed or shutdown to the
presence of a larger cetacean. However, due to the observed behavior of
pinnipeds near the seawall, NMFS is not requiring the applicant to
implement ramp-up procedures after 15 minutes following delay or
shutdown because of the presence of a pinniped within or approaching
the exclusion zone. Previous activities around Elliott Bay have shown
that many pinnipeds do not respond to pile driving activities and will
remain in the surrounding area despite construction noise. Further
delays during pile driving may prove impracticable for the construction
schedule and NMFS does not believe ramp-up procedures would necessarily
provide better protection for pinnipeds in this case.
Comment 3: The Commission recommended that NMFS require the
applicant to monitor for marine mammals not only before and during pile
driving and removal activities, but for 30 minutes after all pile
driving and removal activities have ended.
Response: NMFS has added 30 minutes of monitoring following pile
driving and removal activities.
Changes to the Proposed Rule
As described in the Comments and Responses section above and
summarized here, NMFS added two measures to the proposed rule (78 FR
22096, April 12, 2013) as a result of the public comment period:
Implementation of ramp-up procedures (1) after 15 minutes,
if pile driving or removal is delayed or shutdown due to the presence
of a small cetacean within or approaching the exclusion zone, or (2)
after 30 minutes, if pile driving or removal is delayed or shutdown to
the presence of a larger cetacean; and
Visual monitoring for 30 minutes following pile driving
and removal activities.
Otherwise, there are no changes to mitigation, monitoring, or the
results of NMFS' analysis.
Estimated Take by Incidental Harassment
Except with respect to certain activities not pertinent here, the
MMPA defines `harassment' as: ``any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild [Level A harassment]; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [Level B harassment].'' Take by Level B harassment only is
anticipated as a result of the installation and removal of piles via
impact and vibratory methods. No take by injury, serious injury, or
death is anticipated.
In the Estimated Take by Incidental Harassment section of the
proposed rule, NMFS related the potential effects to marine mammals
from pile driving activities to the MMPA statutory definitions of Level
A and Level B harassment and provided a quantitative estimate of the
number of takes of marine mammals predicted from the Elliott Bay
Seawall project. The information in the proposed rule has not changed
and is summarized in Table 6 below.
[[Page 63401]]
Table 6--Estimated Marine Mammal Takes for Proposed Authorization
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Estimated
maximum number Average number of pile Estimated Percentage of
Species of takes per driving days per year number of stock that may
Day takes per year be taken
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Harbor seal........................... 20 35 (vibratory + impact). 700 4.8
California sea lion................... 5 35 (vibratory + impact). 175 < 0.1
Steller sea lion...................... 5 35 (vibratory + impact). 175 0.3
Harbor porpoise....................... 9 29 (vibratory).......... 315 2.9
Dall's porpoise....................... 2 29 (vibratory).......... 70 0.2
Killer whale (Southern resident)...... .............. ........................ 16 19
Killer whale (transient).............. .............. ........................ 24 6.9
Gray whale............................ .............. ........................ 8 < 0.1
Humpback whale........................ .............. ........................ 4 0.2
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Effects on Marine Mammal Habitat
NMFS' proposed rule includes a section that addresses the effects
of the Elliott Bay Seawall project on marine mammal habitat (78 FR
22096, pages 22113-22114). The analysis preliminarily concluded that
pile driving activities would have minimal effects on marine mammal
habitat. No changes have been made to the discussion contained in this
section of the proposed rule and NMFS has concluded there would be
minimal effects on marine mammal habitat.
Negligible Impact and Small Numbers Analyses and Determinations
As a preliminary matter, we typically include our negligible impact
and small numbers analyses and determinations under the same section
heading of our Federal Register notices. Despite co-locating these
terms, we acknowledge that negligible impact and small numbers are
distinct standards under the MMPA and treat them as such. The analyses
presented below do not conflate the two standards; instead, each
standard has been considered independently and we have applied the
relevant factors to inform our negligible impact and small numbers
determinations.
NMFS has defined `negligible impact' in 50 CFR 216.103 as ``an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.'' In making a negligible impact determination, NMFS considers
a variety of factors, including but not limited to: (1) The number of
anticipated mortalities; (2) the number and nature of anticipated
injuries; (3) the number, nature, intensity, and duration of Level B
harassment; and (4) the context in which the takes occur.
In this section of the proposed rule, NMFS discussed the potential
for exposure, severity of the anticipated effects on marine mammals,
including species-specific discussions, to preliminarily determine that
the Elliott Bay Seawall project would have a negligible impact on
marine mammal species and stocks present in Elliott Bay. No changes
have been made to the discussion contained in the proposed rule (78 FR
22096, pages 22118-22119). In summary, NMFS believes that the estimated
take represents a worst-case scenario: any potential for injury is
discountable due to the small size of the zones in which injury may
occur and the required mitigation zones, any behavioral changes for
marine mammals would be short-term, and any adverse effects to marine
mammal habitat or prey species would be temporary and unlikely to have
a significant impact on marine mammals. Furthermore, the estimated
numbers of marine mammals taken is relatively small for each species or
stock (19 percent for southern resident killer whales and less than 7
percent for all other species or stocks). Based on the analysis
summarized here and detailed in the proposed rule (and other related
documents) of the likely effects of the specified activity on marine
mammals and their habitat, and considering the implementation of
mitigation and monitoring measures, NMFS finds that the total taking
from pile driving activities in Elliott Bay are not expected to impact
annual rates of recruitment or survival. Therefore, the total taking
will have a negligible impact on the affected species or stocks.
Impact on Availability of Affected Species or Stock for Taking for
Subsistence Uses
In this section of the proposed rule, NMFS discussed historical
subsistence harvest of marine mammals in the region of the specified
activity and there are no changes to that information (78 FR 22096,
pages 22119-22120). NMFS determined that the total taking of affected
species or stocks from the Elliott Bay Seawall project will not have an
unmitigable adverse impact on the availability of such species or
stocks for taking for subsistence purposes. We have further determined
the issuance of these regulations and subsequent LOAs will not affect
the availability of affected species or stocks for taking for any
subsistence uses specified under section 101(a)(5)(A)(i)(I). The
activities will be limited to Elliott Bay, Washington, and there are no
cooperative agreements in force under the MMPA or the Whaling
Convention Act of 1949 with any Pacific Northwest treaty Indian tribes
for subsistence uses of marine mammals in this area. Moreover, the
taking of marine mammals incidental to the Elliott Bay Seawall project
will not affect subsistence uses of marine mammals by Alaska Natives.
Endangered Species Act (ESA)
Steller sea lions are listed as threatened under the ESA as two
distinct population segments (DPSs). The eastern DPS was proposed for
delisting under the ESA on April 18, 2012 (77 FR 23209), based on
observed annual rates of increase. NMFS has not yet made a final
decision. The Eastern North Pacific Southern resident stock of killer
whales and humpback whales are listed as endangered under the ESA. The
applicant initiated section 7 consultation with NMFS Northwest Regional
Office, and NMFS Office of Protected Resources, Permits and
Conservation Division also consulted on its proposed incidental take
regulations. NMFS Northwest Regional Office issued a Biological Opinion
that concluded the Elliott Bay Seawall project and NMFS' authorization
of incidental take are not likely to jeopardize the continued existence
of threatened or endangered species under NMFS' jurisdiction or destroy
or adversely modify any designated critical habitat.
[[Page 63402]]
National Environmental Policy Act (NEPA)
The Army Corps of Engineers prepared an Environmental Assessment
(EA) for the regulatory permit (section 404/10) required for Elliott
Bay Seawall project. NMFS prepared an independent NEPA analysis, which
included an EA and Finding of No Significant Impact (FONSI). These
documents are available on our Web site at http://www.nmfs.noaa.gov/pr/permits/incidental.htm# applications. NMFS determined that issuance of
the rulemaking and subsequent LOAs will not significantly impact the
quality of the human environment and that preparation of an
Environmental Impact Statement is not required.
Classification
The Office of Management and Budget (OMB) has determined that this
rule is not significant for purposes of Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce
certified at the proposed rule stage to the Chief Counsel for Advocacy
of the Small Business Administration (SBA) that this rule will not have
a significant economic impact on a substantial number of small entities
(78 FR 22096, April 12, 2013). No comments were received on the
certification. As a result, a regulatory flexibility analysis is not
required and none has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. This rule contains
collection-of-information requirements subject to the provisions of the
PRA. These requirements have been approved by OMB under control number
0648-0151 and include applications for regulations and subsequent LOAs,
and monitoring reports. Send comments regarding any aspect of this data
collection, including suggestions for reducing the burden, to NMFS and
the OMB Desk Officer (see ADDRESSES).
The Assistant Administrator for Fisheries has determined that there
is good cause under the Administrative Procedure Act (5 U.S.C.
553(d)(3)) to waive the 30-day delay in effective date of the measures
contained in the final rule. Clearance of this rule was delayed due to
unforeseen changes in the description of the applicant's action for
section 7 purposes under the Endangered Species Act. Delaying the
effectiveness of this rule would be contrary to the public interest,
because it would delay construction activities. SDOT needs to begin
pile driving activities as soon as possible in order to maintain their
multi-year construction schedule, especially considering that
construction is shutdown each summer to accommodate the primary tourist
and business season. Therefore, these measures will become effective
upon publication.
List of Subjects in 50 CFR Part 217
Imports, Marine mammals, Reporting and recordkeeping requirements.
Dated: October 18, 2013.
Alan Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For reasons set forth in the preamble, 50 CFR Part 217 will be
amended as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Subpart W is added to part 217 to read as follows:
Subpart W--Taking and Importing Marine Mammals; Elliott Bay Seawall
Project
Sec.
217.220 Specified activity and specified geographical region.
217.221 Effective dates and definitions.
217.222 Permissible methods of taking.
217.223 Prohibitions.
217.224 Mitigation.
217.225 Requirements for monitoring and reporting.
217.226 Letters of Authorization.
217.227 Renewals and Modifications of Letters of Authorization.
Subpart W--Taking of Marine Mammals Incidental to the Elliott Bay
Seawall Project
Sec. 217.220 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the Elliott Bay
Seawall project and those persons it authorizes to conduct activities
on its behalf for the taking of marine mammals that occurs in the area
outlined in paragraph (b) of this section incidental to seawall
construction associated with the Elliott Bay Seawall project.
(b) The taking of marine mammals by the City of Seattle's
Department of Transportation (SDOT) may be authorized in a Letter of
Authorization (LOA) only if it occurs in Elliott Bay, Washington.
Sec. 217.221 Effective dates.
This subpart is effective October 21, 2013, through October 21,
2018.
Sec. 217.222 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. Sec. 216.106 and 217.226 of
this chapter, the Holder of the LOA (hereinafter ``SDOT'' and ``City'')
may incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.220(b), provided the activity is in
compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals under the activities
identified in Sec. 217.220(a) is limited to the indicated number of
Level B harassment takes of the following species/stocks:
(1) Harbor seal (Phoca vitulina)--3,500 (an average of 700 animals
per year)
(2) California sea lion (Zalophus californianus)--875 (an average
of 175 animals per year)
(3) Steller sea lion (Eumetopias jubatus)--875 (an average of 175
animals per year)
(4) Harbor porpoise (Phocoena phocoena)--1,575 (an average of 315
animals per year)
(5) Dall's porpoise (Phocoenoides dalli)--350 (an average of 70
animals per year)
(6) Killer whale (Orcinus orca), Eastern North Pacific Southern
resident--80 (a maximum of 16 animals per year)
(7) Killer whale (Orcinus orca), Eastern North Pacific transient--
120 (an average of 24 animals per year)
(8) Gray whale (Eschrichtius robustus)--40 (an average of 8 animals
per year)
(9) Humpback whale (Megaptera novaeangliae)--20 (an average of 4
animals per year)
Sec. 217.223 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.222(b) and
authorized by an LOA issued under Sec. 216.106 and Sec. 217.226 of
this chapter, no person in connection with the activities described in
Sec. 217.220 may:
(a) Take any marine mammal not specified in Sec. 217.222(b);
(b) Take any marine mammal specified in Sec. 217.222(b) other than
by
[[Page 63403]]
incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in Sec. 217.222(b) if NMFS
determines such taking results in more than a negligible impact on the
species or stock of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. Sec. 216.106
and 217.226 of this chapter.
Sec. 217.224 Mitigation.
(a) When conducting the activities identified in Sec. 217.220(a),
the mitigation measures contained in the LOA issued under Sec. Sec.
216.106 and 217.226 of this chapter must be implemented. These
mitigation measures include:
(1) Limited Impact Pile Driving. (i) All sheet piles shall be
installed using a vibratory driver, unless impact driving is required
to install piles that encounter consolidated sediments or for proofing
load bearing sections.
(ii) Any impact driver used in conjunction with vibratory pile
driving shall employ sound attenuation devices, where applicable.
(iii) Any attenuation devices that become available for vibratory
pile driving shall be considered for additional mitigation.
(2) Containment of Impact Pile Driving. The majority of permanent
concrete piles shall be driven behind the temporary containment wall.
(3) Additional Attenuation Measures. In the event that underwater
sound monitoring shows that noise generation from pile installation
exceeds the levels originally expected, SDOT shall immediately notify
NMFS so it can evaluate the need for implementation of additional
attenuation devices or other mitigation measures.
(4) Ramp-up. (i) Ramp-up shall be used at the beginning of each
day's in-water pile-related activities or if pile driving has ceased
for more than 1 hour.
(ii) If a vibratory hammer is used, contractors shall initiate
sound from vibratory hammers for 15 seconds at reduced energy followed
by a 1-minute waiting period. This procedure shall be repeated two
additional times before full energy may be achieved.
(iii) If a non-diesel impact hammer is used, contractors shall
provide an initial set of strikes from the impact hammer at reduced
energy, followed by a 1-minute waiting period, then two subsequent
sets.
(iv) Ramp-up shall be implemented if pile driving or removal is
delayed or shutdown for >15 minutes due to the presence of a delphinid
or pinniped within or approaching the exclusion zone, or if pile
driving or removal is delayed or shutdown for >30 minutes due to the
presence of a large whale.
(5) Marine Mammal Exclusion Zones. (i) The following exclusion
zones shall be established to prevent the Level A harassment of all
marine mammals and to reduce the Level B harassment of large whales:
(A) An exclusion zone for delphinids or pinnipeds shall be
established with a radius of 200 feet (61 meters) waterward of each
steel sheet pile during impact pile driving;
(B) An exclusion zone for delphinids and pinnipeds shall be
established with a radius of 50 feet (15 meters) waterward of each
concrete pile during impact pile driving;
(C) An exclusion zone for large whales shall be established with a
radius of 3,280 feet (1,000 meters) waterward of each steel sheet or
concrete pile during impact pile driving;
(D) An exclusion zone for large whales shall be established with a
radius of 2.5 miles (3,981 meters) waterward of each steel sheet pile
during vibratory pile driving.
(ii) Temporary buoys shall be used, as feasible, to mark the
distance to each exclusion zone during in-water pile-related
activities.
(iii) The exclusion zones shall be used to provide a physical
threshold for the shutdown of in-water pile-related activities.
(iv) At the start of in-water pile related activities each day, a
minimum of one qualified protected species observer shall be staged on
land (or an adjacent pier) near the location of in-water pile-related
activities to document and report any marine mammal that approaches or
enters a relevant exclusion zone throughout the day.
(v) Additional land-based observers shall be deployed if needed to
ensure the construction area is adequately monitored.
(vi) Observers shall monitor for the presence of marine mammals 30
minutes before, during, and for 30 minutes after any in-water pile-
related activities.
(vii) In-water pile-related activities shall not occur if any part
of the exclusion zones are obscured by fog or poor lighting conditions.
(6) Shutdown and Delay Procedures. (i) If a marine mammal is seen
approaching or entering a relevant exclusion zone (as specified in
Sec. 217.224(5)(i)), observers will immediately notify the
construction personnel operating the pile-related equipment to shut
down pile-related activities.
(ii) If a marine mammal(s) is present within the applicable
exclusion zone prior to in-water pile-related activities, pile driving/
removal shall be delayed until the animal(s) has left the exclusion
zone or until 15 minutes (pinniped or small cetacean) or 30 minutes
(large cetacean) have elapsed without observing the animal.
(7) Additional mitigation measures as contained in an LOA issued
under Sec. Sec. 216.106 and 217.226 of this chapter.
Sec. 217.225 Requirements for monitoring and reporting.
(a) When conducting the activities identified in Sec. 217.220(a),
the monitoring and reporting measures contained in the LOA issued under
Sec. Sec. 216.106 and 217.226 of this chapter must be implemented.
These measures include:
(1) Visual Monitoring. (i) In addition to the mitigation monitoring
described in Sec. 217.224 of this chapter, at least two protected
species observers shall be positioned on land near the 2.5 mile
exclusion zone to monitor for marine mammals during vibratory pile-
related activities or any other construction activities that may pose a
threat to marine mammals.
(A) Observers shall use the naked eye, wide-angle binoculars with
reticles, and any other necessary equipment to scan the Level B
harassment isopleth.
(B) Observers shall work, on average, eight hours per day and shall
be relieved by a fresh observer if pile driving lasts longer than usual
(i.e., 12-16 hours).
(C) The number of observers shall be increased and/or positions
changed to ensure full visibility of the Level B harassment isopleth.
(D) Land-based visual monitoring shall be conducted during all days
of vibratory pile driving.
(E) All land-based monitoring shall begin at least 30 minutes prior
to the start of in-water pile-related activities, and continue during
active construction and for 30 minutes following the end of in-water
pile-related activities.
(ii) At a minimum, observers shall record the following
information:
(A) Date of observation period, monitoring type (land-based/boat-
based), observer name and location, climate and weather conditions, and
tidal conditions;
(B) Environmental conditions that could confound marine mammal
detections and when/where they occurred;
(C) For each marine mammal sighting, the time of initial sighting
and duration to the end of the sighting period;
(D) Observed species, number, group composition, distance to pile-
related activities, and behavior of animals throughout the sighting;
[[Page 63404]]
(E) Discrete behavioral reactions, if apparent;
(F) Initial and final sighting locations marked on a grid map; and
(G) Pile-related activities taking place during each sighting and
if/why a shutdown was or was not triggered.
(2) Acoustic Monitoring. (i) Acoustic monitoring shall be conducted
during in-water pile-related activities to identify or confirm noise
levels for pile-related activities during in-water construction.
(A) Acoustic data shall be collected using hydrophones connected to
a drifting boat to reduce the effect of flow noise and an airborne
microphone. There shall be a direct line of acoustic transmission
through the water column between the pile and the hydrophones in all
cases, without any interposing structures, including other piles.
(B) A stationary two-channel hydrophone recording system shall be
deployed to record a representative sample (subset of piles) during the
monitoring period. Acoustic data shall be collected 1 m below the water
surface and 1 m above the sea floor.
(ii) Background noise recordings (in the absence of pile driving)
shall be collected to provide a baseline background noise profile. The
results and conclusions of the study shall be summarized and presented
to NMFS with recommendations for any modifications to the monitoring
plan or exclusion zones.
(iii) All sensors, signal conditioning equipment, and sampling
equipment shall be calibrated at the start of the monitoring period and
rechecked at the start of each day.
(iv) Prior to monitoring, water depth measurements shall be taken
to ensure that hydrophones do not drag on the bottom during tidal
changes.
(v) Underwater and airborne acoustic monitoring shall occur for the
first five steel sheet pile and the first five concrete piles during
the duration of pile driving. If a representative sample has not been
achieved after the five piles have been monitored (e.g., if there is
high variability of sound levels between pilings), acoustic monitoring
shall continue until a representative acoustic sample has been
collected.
(vi) Acoustic data shall be downloaded periodically (i.e., daily or
on another appropriate schedule) and analyzed following the first year
of construction. Post-analysis of underwater sound level signals shall
include the following:
(A) RMS values (average, standard deviation/error, minimum, and
maximum) for each recorded pile. The 10-second RMS averaged values will
be used for determining the source value and extent of the 120 dB
underwater isopleth;
(B) Frequency spectra for each functional hearing group; and
(C) Standardized underwater source levels to a reference distance
of 10 m (33 ft).
(vii) Post-analysis of airborne noise would be presented in an
unweighted format and include:
(A) The unweighted RMS values (average, minimum, and maximum) for
each recorded pile. The average values would be used for determining
the extent of the airborne isopleths relative to species-specific
criteria;
(B) Frequency spectra from 10 Hz to 20 kHz for representative pile-
related activity; and
(C) Standardized airborne source levels to a reference distance of
approximately 15 m (50 ft).
(viii) In the event noise levels surpass estimated levels for
extended periods of time, construction shall be stopped and NMFS shall
be contacted to discuss the cause and potential solutions.
(3) General Reporting. (i) All marine mammal sightings shall be
documented by observers on a NMFS-approved sighting form.
(ii) Marine mammal reporting shall include all data described
previously under Proposed Monitoring, including observation dates,
times, and conditions, and any correlations of observed marine mammal
behavior with activity type and received levels of sound, to the extent
possible.
(iii) A report with the results of all acoustic monitoring shall
include the following:
(A) Size and type of piles;
(B) A detailed description of any sound attenuation device used,
including design specifications;
(C) The impact hammer energy rating used to drive the piles, make
and model of the hammer(s), and description of the vibratory hammer;
(D) A description of the sound monitoring equipment;
(E) The distance between hydrophones and depth of water and the
hydrophone locations;
(F) The depth of the hydrophones;
(G) The distance from the pile to the water's edge;
(H) The depth of water in which the pile was driven;
(I) The depth into the substrate that the pile was driven;
(J) The physical characteristics of the bottom substrate into which
the pile were driven;
(K) The total number of strikes to drive each pile;
(L) The results of the hydroacoustic monitoring, including the
frequency spectrum, ranges and means for the peak and RMS sound
pressure levels, and an estimation of the distance at which RMS values
reach the relevant marine mammal thresholds and background sound
levels.
(M) Vibratory driving results would include the maximum and overall
average RMS calculated from 30-s RMS values during the drive of the
pile; and
(N) A description of any observable marine mammal behavior in the
immediate area and, if possible, correlation to underwater sound levels
occurring at that time.
(iv) An annual report on monitoring and mitigation shall be
submitted to NMFS, Office of Protected Resources, and NMFS, Northwest
Regional Office. The annual reports shall summarize include data
collected for each marine mammal species observed in the project area,
including descriptions of marine mammal behavior, overall numbers of
individuals observed, frequency of observation, any behavioral changes
and the context of the changes relative to activities would also be
included in the annual reports, date and time of marine mammal
detections, weather conditions, species identification, approximate
distance from the source, and activity at the construction site when a
marine mammal is sighted.
(v) A draft comprehensive report on monitoring and mitigation shall
be submitted to NMFS, Office of Protected Resources, and NMFS,
Northwest Regional Office, 180 days prior to the expiration of the
regulations. The comprehensive technical report shall provide full
documentation of methods, results, and interpretation of all monitoring
during the first 4.5 years of the regulations. A revised final
comprehensive technical report, including all monitoring results during
the entire period of the regulations, shall be due 90 days after the
end of the period of effectiveness of the regulations.
(4) Reporting Injured or Dead Marine Mammals. (i) In the
unanticipated event that the specified activity clearly causes the take
of a marine mammal in a manner prohibited by an LOA (if issued), such
as an injury (Level A harassment), serious injury, or mortality, the
Holder shall immediately cease the specified activities and report the
incident to the Chief of the Permits and Conservation Division, Office
of Protected Resources, NMFS, and the Northwest Regional Stranding
Coordinator. The report must include the following information:
(A) Time and date of the incident;
(B) Description of the incident;
[[Page 63405]]
(C) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(D) Description of all marine mammal observations in the 24 hours
preceding the incident;
(E) Species identification or description of the animal(s)
involved;
(F) Fate of the animal(s); and
(G) Photographs or video footage of the animal(s).
(ii) Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with the Holder to
determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. The Holder may not
resume their activities until notified by NMFS.
(iii) In the event that the Holder discovers an injured or dead
marine mammal, and the lead protected species observer determines that
the cause of the injury or death is unknown and the death is relatively
recent (e.g., in less than a moderate state of decomposition), the
Holder shall immediately report the incident to the Chief of the
Permits and Conservation Division, Office of Protected Resources, NMFS,
and the Northwest Regional Stranding Coordinator. The report must
include the same information identified in Sec. 217.225(a)(3) of this
chapter. Activities may continue while NMFS reviews the circumstances
of the incident. NMFS will work with the Holder to determine whether
additional mitigation measures or modifications to the activities are
appropriate.
(iv) In the event that the Holder discovers an injured or dead
marine mammals, and the lead protected species observer determines that
the injury or death is not associated with or related to the activities
authorized in the LOA (e.g., previously wounded animal, carcass with
moderate to advanced decomposition, or scavenger damage), the Holder
shall report the incident to the Chief of the Permits and Conservation
Division, Office of Protected Resources, NMFS, and the Northwest
Regional Stranding Coordinator, within 24 hours of the discovery. The
Holder shall provide photographs or video footage or other
documentation of the stranding animal sighting to NMFS.
Sec. 217.226 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the applicant must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the Holder must apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Holder must
apply for and obtain a modification of the LOA as described in Sec.
217.227.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species and its habitat; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within 30 days of a determination.
Sec. 217.227 Renewals and Modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 and 217.226 of this
chapter for the activity identified in Sec. 217.220(a) of this chapter
shall be renewed or modified upon request by the applicant, provided
that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in Sec.
217.227(c)(1)), and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in Sec. 217.227(c)(1)) that do not change the findings made
for the regulations or that result in no more than a minor change in
the total estimated number of takes (or distribution by species or
years), NMFS may publish a notice of proposed LOA in the Federal
Register, including the associated analysis illustrating the change,
and solicit public comments before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 and 217.226 of this
chapter for the activity identified in Sec. 217.220(a) may be modified
by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with the Holder regarding the practicability of the
modifications) if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring
set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA
include the following:
(A) Results from the Holder's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies;
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed LOA in the Federal Register and
solicit public comments.
(2) Emergencies--If NMFS determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in Sec. 217.222(b), an LOA may be modified
without prior notice or opportunity for public comment. Notice of such
action will be published in the Federal Register within 30 days of the
action.
[FR Doc. 2013-25089 Filed 10-21-13; 4:15 pm]
BILLING CODE 3510-22-P