61652 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Notices 

of the final determination described 

above. 

The Rules provide that: 

(a) A Party or interested person may 

challenge the final determination in 

whole or in part by filing a Complaint 

in accordance with Rule 39 within 30 

days after the filing of the first Request 

for Panel Review (the deadline for filing 

a Complaint is November 8, 2004); 

(b) A Party, investigating authority or 

interested person that does not file a 

Complaint but that intends to appear in 

support of any reviewable portion of the 

final determination may participate in 

the panel review by filing a Notice of 

Appearance in accordance with Rule 40 

within 45 days after the filing of the first 

Request for Panel Review (the deadline 

for filing a Notice of Appearance is 

November 22, 2004); and 

(c) The panel review shall be limited 

to the allegations of error of fact or law, 

including the jurisdiction of the 

investigating authority, that are set out 

in the Complaints filed in the panel 

review and the procedural and 

substantive defenses raised in the panel 

review.

Dated: October 12, 2004. 

Caratina L. Alston, 

United States Secretary, NAFTA Secretariat.

[FR Doc. E4–2720 Filed 10–19–04; 8:45 am] 

BILLING CODE 3510–GT–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

[I.D. 092704B]

Taking of Marine Mammals Incidental 

to Specified Activities; Construction of 

the East Span of the San FranciscoOakland Bay Bridge

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Notice of receipt of application 

and proposed authorization for a small 

take exemption; request for comments.

SUMMARY: NMFS has received a request 

from the California Department of 

Transportation (CALTRANS) for 

renewal of an authorization to take 

small numbers of California sea lions, 

Pacific harbor seals, and gray whales, by 

harassment, incidental to construction 

of a replacement bridge for the East 

Span of the San Francisco-Oakland Bay 

Bridge (SF-OBB) in California. Under 

the Marine Mammal Protection Act 

(MMPA), NMFS is requesting comments 

on its proposal to issue an authorization 

to CALTRANS to incidentally take, by 

harassment, small numbers of these 

species of pinnipeds and cetaceans 

during the next 12 months.

DATES: Comments and information must 

be received no later than November 19, 

2004.

ADDRESSES: Comments on the 

application should be addressed to 

Steve Leathery, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910–3225, or by telephoning the 

contact listed here. The mailbox address 

for providing email comments is 

PR1.092704B@noaa.gov. Include in the 

subject line of the e-mail comment the 

following document identifier: 092704B. 

E-mail comments sent to addresses 

other than the one provided here may be 

missed and not incorporated into the 

public record on this action. Comments 

sent via e-mail, including all 

attachments, must not exceed a 10–

megabyte file size. A copy of the 2001 

application, the 2004 renewal request, 

and/or the June 2004 Annual Report 

may be obtained by writing to this 

address or by telephoning the contact 

listed here.

FOR FURTHER INFORMATION CONTACT:

Kenneth Hollingshead, NMFS, (301) 

713–2289, ext 128, or Monica 

DeAngelis, NMFS, (562) 980–3232.

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, notice of a proposed 

authorization is provided to the public 

for review.

Permission may be granted if NMFS 

finds that the taking will have no more 

than 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 

subsistence uses and that the 

permissible methods of taking and 

requirements pertaining to the 

monitoring and reporting of such taking 

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.’’

Section 101(a)(5)(D) of the MMPA 

established an expedited process by 

which citizens of the United States can 

apply for an authorization to 

incidentally take small numbers of 

marine mammals by 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].

Section 101(a)(5)(D) establishes a 45–

day time limit for NMFS review of an 

application followed by a 30–day public 

notice and comment period on any 

proposed authorizations for the 

incidental harassment of small numbers 

of marine mammals. Within 45 days of 

the close of the comment period, NMFS 

must either issue or deny issuance of 

the authorization.

Summary of Request

On September 1, 2004, NMFS 

received a request from CALTRANS 

requesting renewal of an IHA for the 

possible harassment of small numbers of 

California sea lions (Zalophus 

californianus), Pacific harbor seals 

(Phoca vitulina richardsii), and gray 

whales (Eschrichtius robustus) 

incidental to construction of a 

replacement bridge for the East Span of 

the SF-OBB, in San Francisco Bay (SFB 

or the Bay), California. An IHA was 

issued to CALTRANS for this activity on 

November 9, 2003 and it expires on 

November 9, 2004. Background 

information on the issuance of this IHA 

was published in the Federal Register

on November 14, 2003 (68 FR 64595). 

Minor modifications to the IHA were 

made on June 28, 2004 in response to 

a request by CALTRANS. These 

modifications were limited to 

clarifications of, and corrections on, the 

terminology and conditions in the IHA.

A detailed description of the SF-OBB 

project was provided in the November 

14, 2003 (68 FR 64595) Federal Register

notice and does not need to be repeated 

here.

Description of the Marine Mammals 

Potentially Affected by the Activity

General information on the marine 

mammal species found in California 

waters can be found in Caretta et al. 

(2004), which is available at the 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Notices 61653

following URL: http://

www.nmfs.noaa.gov/protlres/PR2/

StocklAssessmentlProgram/

sars.html. Refer to that document for 

information on these species.

The marine mammals most likely to 

be found in the SF-OBB area are the 

California sea lion and Pacific harbor 

seal. From December through May gray 

whales may also be present in the SFOBB area. Information on these 3 

species was provided in the November 

14, 2003 (68 FR 64595), Federal 

Register notice and does not need to be 

repeated here.

Potential Effects on Marine Mammals 

and Their Habitat

CALTRANS and NMFS have 

determined that open-water pile 

driving, as outlined in the project 

description, has the potential to result 

in behavioral harassment of California 

sea lions, Pacific harbor seals, and gray 

whales that may be swimming, foraging, 

or resting in the project vicinity while 

pile driving is being conducted. Pile 

driving could potentially harass those 

few pinnipeds that are in the water 

close to the project site, whether their 

heads are above or below the surface.

Based on airborne noise levels 

measured and on-site monitoring 

conducted during 2004 under the 

current IHA, noise levels from the East 

Span project are not resulting in the 

harassment of harbor seals hauled out 

on Yerba Buena Island (YBI). Also, 

noise levels from the East Span project 

are not expected to result in harassment 

of the sea lions hauled out at Pier 39 as 

airborne and waterborne sound pressure 

levels (SPLs) would attenuate to below 

harassment levels by the time they reach 

that haul-out site, 5.7 kilometers (3.5 

miles) from the project site.

For reasons provided in greater detail 

in NMFS’ November 14, 2003 (68 FR 

64595) Federal Register notice and in 

CALTRANS’ June 2004 annual 

monitoring report, the East Span Project 

is resulting in only small numbers of 

pinnipeds being harassed (through June 

2004, the biological observers indicated 

that no pinnipeds had been harassed as 

a result of East Span construction) and, 

therefore, is not expected to result in 

more than a negligible impact on marine 

mammal stocks and will not have a 

significant impact on their habitat. 

Short-term impacts to habitat may 

include minimal disturbance of the 

sediment where the channels are 

dredged for barge access and where 

individual bridge piers are constructed. 

Long-term impacts to marine mammal 

habitat will be limited to the footprint 

of the piles and the obstruction they 

will create following installation. 

However, this impact is not considered 

significant as the marine mammals can 

easily swim around the piles of the new 

bridge, as they currently swim around 

the existing bridge piers.

Mitigation

The following mitigation measures are 

currently required under the IHA to 

reduce impacts to marine mammals to 

the lowest extent practicable. NMFS 

proposes to continue these mitigation 

measures under a new IHA, if issued.

Barrier Systems

An air bubble curtain system is 

required to be used only when driving 

the permanent open-water piles. While 

the bubble curtain is required 

specifically as a method to reduce 

impacts to endangered and threatened 

fish species in SFB, it may also provide 

some benefit for marine mammals. The 

NMFS’ Biological Opinion and the 

California Department of Fish and 

Game’s (CDFG) 2081 Incidental Take 

Permit also allow for the use of other 

equally effective methods, such as 

cofferdams, as an alternative to the air 

bubble curtain system to attenuate the 

effects of sound pressure waves on fish 

during driving of permanent in-Bay 

piles (NMFS 2001; CDFG, 2001). Piers 

E–16 through E–7 for both the 

eastbound and westbound structures of 

the Skyway will be surrounded by 

sheet-pile cofferdams, which will be dewatered before the start of pile driving. 

De-watered cofferdams are generally 

effective sound attenuation devices. For 

Piers E3 through E6 of the Skyway and 

Piers 1 and E2 of the Self-Anchored 

Suspension span, it is anticipated that 

cofferdams will not be used: therefore, 

a bubble curtain will surround the piles.

Sound Attenuation

As a result of the determinations 

made during the Pile Installation 

Demonstration Project (PIDP) restrike 

and the investigation at the BeniciaMartinez Bridge, NMFS determined in 

2003 that CALTRANS must install an 

air bubble curtain for pile driving for the 

open-water piles without cofferdams 

located at the SF-OBB. This air bubble 

curtain system consists of concentric 

layers of perforated aeration pipes 

stacked vertically and spaced no more 

than five vertical meters apart in all tide 

conditions. The minimum number of 

layers must be in accordance with water 

depth at the subject pile: 0-<5 m = 2 

layers (1263 cfm); 5-<10 m = 4 layers 

(2526 cfm), 10-<15 m = 7 layers (4420 

cfm); 15-<20 m = 10 layers (6314 cfm); 

20-<25 m= 13 layers (8208 cfm). The 

lowest layer of perforated aeration pipes 

must be designed to ensure contact at all 

times and tidal conditions with the 

mudline without sinking into the bay 

mud. Pipes in any layer must be 

arranged in a geometric pattern, which 

will allow for the pile driving operation 

to be completely enclosed by bubbles 

for the full depth of the water column.

To provide a uniform bubble flux, 

each aeration pipe must have four 

adjacent rows of air holes along the 

pipe. Air holes must be 1.6–mm 

diameter and spaced approximately 20 

mm apart. The bubble curtain system 

will provide a bubble flux of at least two 

cubic meters per minute, per linear 

meter of pipeline in each layer. Air 

holes must be placed in 4 adjacent rows.

The air bubble curtain system must be 

composed of the following: (1) An air 

compressor(s), (2) supply lines to 

deliver the air, (3) distribution 

manifolds or headers, (4) perforated 

aeration pipes, and (5) a frame. The 

frame facilitates transport and 

placement of the system, keeps the 

aeration pipes stable, and provides 

ballast to counteract the buoyancy of the 

aeration pipes in operation. Meters are 

required to monitor the operation of the 

bubble curtain system. Pressure meters 

will be installed and monitored at all 

inlets to aeration pipelines and at points 

of lowest pressure in each branch of the 

aeration pipeline. If the pressure or flow 

rate in any meter falls below 90 percent 

of its operating value, the contractor 

will cease pile driving operations until 

the problem is corrected and the system 

is tested to the satisfaction of the 

CALTRANS resident engineer.

Establishment of Safety/Buffer Zones

A safety zone is to be established and 

monitored to include all areas where the 

underwater SPLs are anticipated to 

equal or exceed 190 dB re 1 μPa RMS 

(impulse) for pinnipeds. Also, a 180–dB 

re 1 μPa RMS (impulse) safety zone for 

gray whales must be established for pile 

driving occurring during the gray whale 

migration season from December 

through May. Prior to commencement of 

any pile driving, a preliminary 500–m 

(1,640–ft) radius safety zone for 

pinnipeds (California sea lions and 

Pacific harbor seals) will be established 

around the pile driving site, as it was for 

the PIDP. Once pile driving begins, 

either new safety zones can be 

established for the 500 kJ and 1700 kJ 

hammers or the 500 m (1,640 ft) safety 

zone can be retained. If new safety 

zones are established based on SPL 

measurements, NMFS requires that each 

new safety zone be based on the most 

conservative measurement (i.e., the 

largest safety zone configuration). SPLs 

will be recorded at the 500–m (1,640–

ft) contour. The safety zone radius for 

61654 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Notices 

pinnipeds will then be enlarged or 

reduced, depending on the actual 

recorded SPLs.

Observers on boats will survey the 

safety zone to ensure that no marine 

mammals are seen within the zone 

before pile driving of a pile segment 

begins. If marine mammals are found 

within the safety zone, pile driving of 

the segment will be delayed until they 

move out of the area. If a marine 

mammal is seen above water and then 

dives below, the contractor will wait 15 

minutes and if no marine mammals are 

seen by the observer in that time it will 

be assumed that the animal has moved 

beyond the safety zone. This 15–minute 

criterion is based on scientific evidence 

that harbor seals in San Francisco Bay 

dive for a mean time of 0.50 minutes to 

3.33 minutes (Harvey and Torok, 1994). 

However, due to the limitations of 

monitoring from a boat, there can be no 

assurance that the zone will be devoid 

of all marine mammals at all times.

Once the pile driving of a segment 

begins it cannot be stopped until that 

segment has reached its predetermined 

depth due to the nature of the sediments 

underlying the Bay. If pile driving stops 

and then resumes, it would potentially 

have to occur for a longer time and at 

increased energy levels. In sum, this 

would simply amplify impacts to 

marine mammals, as they would endure 

potentially higher SPLs for longer 

periods of time. Pile segment lengths 

and wall thickness have been specially 

designed so that when work is stopped 

between segments (but not during a 

single segment), the pile tip is never 

resting in highly resistant sediment 

layers. Therefore, because of this 

operational situation, if seals or sea 

lions enter the safety zone after pile 

driving of a segment has begun, pile 

driving will continue and marine 

mammal observers will monitor and 

record marine mammal numbers and 

behavior. However, if pile driving of a 

segment ceases for 30 minutes or more 

and a marine mammal is sighted within 

the designated safety zone prior to 

commencement of pile driving, the 

observer(s) must notify the Resident 

Engineer (or other authorized 

individual) immediately and follow the 

mitigation requirements as outlined 

previously in this document.

Soft Start

It should be recognized that although 

marine mammals will be protected from 

Level A harassment by establishment of 

an air-bubble curtain and marine 

mammal observers monitoring a 190–dB 

safety zone for pinipeds and 180–dB 

safety zone for gray whales, mitigation 

may not be 100 percent effective at all 

times in locating marine mammals. 

Therefore, in order to provide additional 

protection to marine mammals near the 

project area by allowing marine 

mammals to vacate the area prior to 

receiving a potential injury, CALTRANS 

will also ‘‘soft start’’ the hammer prior 

to operating at full capacity. 

CALTRANS typically implements a 

‘‘soft start’’ with several initial hammer 

strikes at less than full capacity (i.e., 

approximately 40–60 percent energy 

levels) with no less than a 1 minute 

interval between each strike. Similar 

levels of noise reduction is expected 

underwater. Therefore, contractor will 

initiate hammering of both the 500–kJ 

and the 1,700–kJ hammers with this 

procedure in order to allow pinnipeds 

in the area to voluntarily move from the 

area and should expose fewer animals to 

loud sounds both underwater and above 

water noise. This would also ensure 

that, although not expected, any 

pinnipeds that are missed during safety 

zone monitoring will not be injured.

Compliance with Equipment Noise 

Standards

To mitigate noise levels and, 

therefore, impacts to California sea 

lions, Pacific harbor seals, and gray 

whales, all construction equipment will 

comply as much as possible with 

applicable equipment noise standards of 

the U.S. Environmental Protection 

Agency, and all construction equipment 

will have noise control devices no less 

effective than those provided on the 

original equipment.

Monitoring

Since the start of the large-diameter 

pile driving in the Bay nearly two years 

ago, CALTRANS has completed pile 

driving of 105 piles inside cofferdams 

and 39 piles in open water (with the use 

of a bubble curtain) for a total of 144 

piles. Monitoring teams were on-site for 

all open water pile driving and during 

driving of ‘‘tops’’ (last section of the 

piles, which drives the pile deeper into 

the substrate) inside cofferdams where 

underwater SPLs reached 190 dB or 

greater. During 76 days of monitoring, 

both within and outside the marine 

mammal safety zone, a single startle 

behavior from a California sea lion was 

observed.

The following monitoring measures 

are currently required under the IHA to 

reduce impacts to marine mammals to 

the lowest extent practicable. Unless, as 

noted, the work has been completed, 

NMFS proposes to continue those 

monitoring measures under a new IHA 

(if issued).

Visual Observations

The area-wide baseline monitoring 

and the aerial photo survey to estimate 

the fraction of pinnipeds that might be 

missed by visual monitoring have been 

completed under the current IHA and 

do not need to be continued.

Safety zone monitoring will be 

conducted during driving of all openwater, permanent piles without 

cofferdams and with cofferdams when 

underwater SPLs reach 190 dB RMS or 

greater. Monitoring of the pinniped and 

cetacean safety zones will be conducted 

by a minimum of three qualified NMFSapproved observers for each safety zone. 

One three-observer team will be 

required for the safety zones around 

each pile driving site, so that multiple 

teams will be required if pile driving is 

occurring at multiple locations at the 

same time. The observers will begin 

monitoring at least 30 minutes prior to 

startup of the pile driving. Most likely 

observers will conduct the monitoring 

from small boats, as observations from 

a higher vantage point (such as the SFOBB) is not practical. Pile driving will 

not begin until the safety zone is clear 

of marine mammals. However, as 

described in the Mitigation section, 

once pile driving of a segment begins, 

operations will continue uninterrupted 

until the segment has reached its 

predetermined depth. However, if pile 

driving of a segment ceases for 30 

minutes or more and a marine mammal 

is sighted within the designated safety 

zone prior to commencement of pile 

driving, the observer(s) must notify the 

Resident Engineer (or other authorized 

individual) immediately and follow the 

mitigation requirements as outlined 

previously (see Mitigation). Monitoring 

will continue through the pile driving 

period and will end approximately 30 

minutes after pile driving has been 

completed. Biological observations will 

be made using binoculars during 

daylight hours.

In addition to monitoring from boats, 

during open-water pile driving, 

monitoring at one control site (harbor 

seal haul-out sites and the waters 

surrounding such sites not impacted by 

the East Span Project’s pile driving 

activities, i.e. Mowry Slough) will be 

designated and monitored for 

comparison. Monitoring will be 

conducted twice a week at the control 

site whenever open-water pile driving is 

being conducted. Data on all 

observations will be recorded and will 

include items such as species, numbers, 

behavior, details of any observed 

disturbances, time of observation, 

location, and weather. The reactions of 

marine mammals will be recorded based 

Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Notices 61655

on the following classifications that are 

consistent with the Richmond Bridge 

Harbor Seal survey methodology (for 

information on the Richmond Bridge 

authorization, see 68 FR 66076, 

November 25, 2003): (1) No response, 

(2) head alert (looks toward the source 

of disturbance), (3) approach water (but 

not leave), and (4) flush (leaves haul-out 

site). The number of marine mammals 

under each disturbance reaction will be 

recorded, as well as the time when seal 

re-haul after a flush.

Acoustical Observations

Airborne noise level measurements 

have been completed and underwater 

environmental noise levels will 

continue to be measured as part of the 

East Span Project. The purpose of the 

underwater sound monitoring is to 

establish the safety zone of 190 dB re 1 

micro-Pa RMS (impulse) for pinnipeds 

and the safety zone of 180 dB re 1 

micro-Pa RMS (impulse) for gray 

whales. Monitoring will be conducted 

during the driving of the last half 

(deepest pile segment) for any given 

open-water pile. One pile in every other 

pair of pier groups will be monitored. 

One reference location will be 

established at a distance of 100 m (328 

ft) from the pile driving. Sound 

measurements will be taken at the 

reference location at two depths (a 

depth near the mid-water column and a 

depth near the bottom of the water 

column but at least 1 m (3 ft) above the 

bottom) during the driving of the last 

half (deepest pile segment) for any given 

pile. Two additional in-water spot 

measurements will be conducted at 

appropriate depths (near mid water 

column), generally 500 m (1,640 ft) in 

two directions either west, east, south or 

north of the pile driving site will be 

conducted at the same two depths as the 

reference location measurements. In 

cases where such measurements cannot 

be obtained due to obstruction by land 

mass, structures or navigational hazards, 

measurements will be conducted at 

alternate spot measurement locations. 

Measurements will be made at other 

locations either nearer or farther as 

necessary to establish the approximate 

distance for the safety zones. Each 

measuring system shall consist of a 

hydrophone with an appropriate signal 

conditioning connected to a sound level 

meter and an instrument grade digital 

audiotape recorder (DAT). Overall SPLs 

shall be measured and reported in the 

field in dB re 1 micro-Pa RMS 

(impulse). An infrared range finder will 

be used to determine distance from the 

monitoring location to the pile. The 

recorded data will be analyzed to 

determine the amplitude, time history 

and frequency content of the impulse.

Reporting

Under the current IHA, CALTRANS 

has submitted weekly marine mammal 

monitoring reports and in June, 2004, 

CALTRANS submitted its Marine 

Mammal and Acoustic Monitoring for 

the Eastbound Structure. This annual 

report is available by contacting NMFS 

(see ADDRESSES) or on the Web at http:/

/biomitigation.org.

Under the proposed IHA, 

coordination with NMFS will occur on 

a weekly basis, or more often as 

necessary. During periods with openwater pile driving activity, weekly 

monitoring reports will be made 

available to NMFS and the public at 

http://biomitigation.org. These weekly 

reports will include a summary of the 

previous week’s monitoring activities 

and an estimate of the number of seals 

and sea lions that may have been 

disturbed as a result of pile driving 

activities.

In addition, CALTRANS proposes to 

provide NMFS’ Southwest Regional 

Administrator with a draft final report 

within 90 days after completion of the 

westbound Skyway contract and 90 

days after completion of the Suspension 

Span foundations contract. This report 

should detail the monitoring protocol, 

summarize the data recorded during 

monitoring, and estimate the number of 

marine mammals that may have been 

harassed due to pile driving. If 

comments are received from the 

Regional Administrator on the draft 

final report, a final report must be 

submitted to NMFS within 30 days 

thereafter. If no comments are received 

from NMFS, the draft final report will 

be considered to be the final report.

National Environmental Policy Act 

(NEPA)

NMFS has prepared an Environmental 

Assessment (EA) and made a Finding of 

No Significant Impact (FONSI). 

Therefore, preparation of an 

environmental impact statement on this 

action is not required by section 102(2) 

of the NEPA or its implementing 

regulations. A copy of the EA and 

FONSI are available upon request (see 

ADDRESSES).

Endangered Species Act (ESA)

On October 30, 2001, NMFS 

completed consultation under section 7 

of the ESA with the Federal Highway 

Administration (FHWA) on the 

CALTRANS’ construction of a 

replacement bridge for the East Span of 

the SF-OBB in California. The finding 

contained in the Biological Opinion was 

that the proposed action at the East 

Span of the SF-OBB is not likely to 

jeopardize the continued existence of 

listed anadromous salmonids, or result 

in the destruction or adverse 

modification of designated critical 

habitat for these species. Listed marine 

mammals are not expected to be in the 

area of the action and thus would not be 

affected. However, the proposed 

issuance of an IHA to CALTRANS 

constitutes an agency action that 

authorizes an activity that may affect 

ESA-listed species and, therefore, is 

subject to section 7 of the ESA. 

Moreover, as the effects of the activities 

on listed salmonids were analyzed 

during a formal consultation between 

the FHWA and NMFS, and as the 

underlying action has not changed from 

that considered in the consultation, the 

discussion of effects that are contained 

in the Biological Opinion issued to the 

FHWA on October 30, 2001, pertains 

also to this action. In conclusion, NMFS 

has determined that issuance of an IHA 

for this activity does not lead to any 

effects to listed species apart from those 

that were considered in the consultation 

on FHWA’s action.

Preliminary Determinations

For the reasons discussed in this 

document and in previously identified 

supporting documents, NMFS has 

preliminarily determined that the 

impact of pile driving and other 

activities associated with construction 

of the East Span Project should result, 

at worst, in the Level B harassment of 

small numbers of California sea lions, 

Pacific harbor seals and potentially gray 

whales that inhabit or visit SFB in 

general and the vicinity of the SF-OBB 

in particular. While behavioral 

modifications, including temporarily 

vacating the area around the 

construction site, may be made by these 

species to avoid the resultant visual and 

acoustic disturbance, the availability of 

alternate areas within SFB and haul-out 

sites (including pupping sites) and 

feeding areas within the Bay has led 

NMFS to preliminarily determine that 

this action will have a negligible impact 

on California sea lion, Pacific harbor 

seal, and gray whale populations along 

the California coast.

In addition, no take by Level A 

harassment (injury) or death is 

anticipated and harassment takes 

should be at the lowest level practicable 

due to incorporation of the mitigation 

measures mentioned previously in this 

document.

Proposed Authorization

NMFS proposes to issue an IHA to 

CALTRANS for the potential 

61656 Federal Register / Vol. 69, No. 202 / Wednesday, October 20, 2004 / Notices 

harassment of small numbers of harbor 

seals, California sea lions and California 

gray whales incidental to construction 

of a replacement bridge for the East 

Span of the San Franciso-Oakland Bay 

Bridge in California, provided the 

previously mentioned mitigation, 

monitoring, and reporting requirements 

are incorporated. NMFS has 

preliminarily determined that the 

proposed activity would result in the 

harassment of only small numbers of 

harbor seals, California sea lions and 

possibly California gray whales and will 

have no more than a negligible impact 

on these marine mammal stocks.

Information Solicited

NMFS requests interested persons to 

submit comments, information, and 

suggestions concerning this request (see 

ADDRESSES). Prior to submitting 

comments, NMFS recommends 

reviewers of this document read NMFS’

November 14, 2003 Federal Register

notice (68 FR 64595) on this action, 

especially responses to comments made 

previously, as NMFS does not intend to 

address these issues further without the 

submission of additional scientific 

information relevant to the comment.

Dated: October 15, 2004.

Laurie K. Allen,

Director, Office of Protected Resources, 

National Marine Fisheries Service.

[FR Doc. 04–23484 Filed 10–19–04; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

[I.D. 092704A]

Incidental Take of Marine Mammals; 

Taking of Marine Mammals Incidental 

to Operation of a Low Frequency 

Sound Source by the North Pacific 

Acoustic Laboratory

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Notice of issuance of a letter of 

authorization.

SUMMARY: In accordance with the 

Marine Mammal Protection Act 

(MMPA), as amended, notification is 

hereby given that a letter of 

authorization (LOA) to take several 

species of marine mammals incidental 

to operation of a low frequency sound 

source by the North Pacific Acoustic 

Laboratory (NPAL) was issued on 

October 15, 2004, to the University of 

California San Diego, Scripps Institution 

of Oceanography (Scripps).

DATES: This authorization is effective 

from October 15, 2004, through October 

14, 2005.

ADDRESSES: The application and LOA 

are available for review in the Office of 

Protected Resources, NMFS, 1315 EastWest Highway, Silver Spring, MD 

20910.

FOR FURTHER INFORMATION CONTACT:

Kenneth Hollingshead, NMFS, (301) 

713–2289, ext 128.

SUPPLEMENTARY INFORMATION: Section 

101(a)(5)(A) of the MMPA (16 U.S.C. 

1361 et seq.) directs NMFS to allow, on 

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 by NMFS and regulations are 

issued. Under the MMPA, the term 

‘‘taking’’ means to harass, hunt, capture, 

or kill or to attempt to harass, hunt, 

capture or kill marine mammals.

Permission may be granted for periods 

up to 5 years if NMFS finds, after 

notification and opportunity for public 

comment, that the taking will have a 

negligible impact on the species or 

stock(s) of marine mammals and will 

not have an unmitigable adverse impact 

on the availability of the species or 

stock(s) for subsistence uses. In 

addition, NMFS must prescribe 

regulations that include permissible 

methods of taking and other means 

effecting the least practicable adverse 

impact on the species and its habitat 

and on the availability of the species for 

subsistence uses, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance. The 

regulations must include requirements 

pertaining to the monitoring and 

reporting of such taking. Regulations 

governing the taking incidental to 

operation of a low frequency sound 

source by NPAL, were published on 

August 17, 2001 (66 FR 43442), and 

remain in effect until September 17, 

2006.

Issuance of the LOA to Scripps is 

based on findings made in the preamble 

to the final rule that the total takings by 

this project would result in only small 

numbers (as the term is defined in 50 

CFR 216.103) of marine mammals being 

taken. In addition, the resultant 

incidental harassment would have no 

more than a negligible impact on the 

affected marine mammal stocks or 

habitats and would not have an 

unmitigable adverse impact on Arctic 

subsistence uses of marine mammals. 

NMFS also finds that the applicant will 

meet the requirements contained in the 

implementing regulations and LOA, 

including monitoring and reporting 

requirements. This LOA will be 

renewed annually based on a review of 

the activity, completion of monitoring 

requirements and receipt of reports 

required by the LOA.

Dated: October 15, 2004.

Laurie K. Allen,

Director, Office of Protected Resources, 

National Marine Fisheries Service.

[FR Doc. 04–23485 Filed 10–19–04; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

[I.D. 092904A]

Incidental Take of Marine Mammals; 

Taking of Marine Mammals Incidental 

to Missile Launch Operations from San 

Nicolas Island, CA

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Notice of issuance of a letter of 

authorization.

SUMMARY: In accordance with the 

Marine Mammal Protection Act 

(MMPA), as amended, notification is 

hereby given that a letter of 

authorization (LOA) to take 3 species of 

marine mammals incidental to missile 

launch operations from San Nicolas 

Island, CA (SNI) was issued on October 

8, 2004, to the Naval Air Warfare Center 

Weapons Division (NAWC-WD), Point 

Mugu, CA.

DATES: This authorization is effective 

from October 8, 2004, through October 

7, 2005.

ADDRESSES: The application and LOA 

are available for review in the Office of 

Protected Resources, NMFS, 1315 EastWest Highway, Silver Spring, MD 

20910.

FOR FURTHER INFORMATION CONTACT:

Kenneth Hollingshead, NMFS, (301) 

713–2289, ext 128.

SUPPLEMENTARY INFORMATION: Section 

101(a)(5)(A) of the MMPA (16 U.S.C. 

1361 et seq.) directs NMFS to allow, on 

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 by NMFS and regulations are 

issued. Under the MMPA, the term 

‘‘taking’’ means to harass, hunt, capture,