Federal Register / Vol. 75, No. 230 / Wednesday, December 1, 2010 / Notices 74687 

SUMMARY: On November 26, 2010, the 

binational panel issued its decision in 

the review of the United States 

International Trade Commission’s (the 

Commission) final injury determination 

in Light-Walled Rectangular Pipe and 

Tube from China, Korea, and Mexico 

(NAFTA Secretariat File Number USA– 

MEX–2008–1904–04). The binational 

panel upheld in part and remanded in 

part the Commission’s determination. 

The Commission is directed to issue its 

remand determination within sixty days 

from the date of this panel decision. 

Copies of the panel decision are 

available from the U.S. Section of the 

NAFTA Secretariat. 

FOR FURTHER INFORMATION CONTACT: 

Valerie Dees, United States Secretary, 

NAFTA Secretariat, Suite 2061, 14th 

and Constitution Avenue, Washington, 

DC 20230, (202) 482–5438. 

SUPPLEMENTARY INFORMATION: Chapter 

19 of the North American Free-Trade 

Agreement (‘‘Agreement’’) establishes a 

mechanism to replace domestic judicial 

review of final determinations in 

antidumping and countervailing duty 

cases involving imports from a NAFTA 

country with review by independent 

binational panels. When a Request for 

Panel Review is filed, a panel is 

established to act in place of national 

courts to review expeditiously the final 

determination to determine whether it 

conforms with the antidumping or 

countervailing duty law of the country 

that made the determination. 

Under Article 1904 of the Agreement, 

which came into force on January 1, 

1994, the Government of the United 

States, the Government of Canada and 

the Government of Mexico established 

Rules of Procedure for Article 1904 

Binational Panel Reviews (‘‘Rules’’). 

These Rules were published in the 

Federal Register on February 23, 1994 

(59 FR 8686). The panel review in this 

matter has been conducted in 

accordance with these Rules. 

Dated: November 26, 2010. 

Valerie Dees, 

United States Secretary, NAFTA Secretariat. 

[FR Doc. 2010–30231 Filed 11–30–10; 8:45 am] 

BILLING CODE 3510–GT–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XY30 

Takes of Marine Mammals Incidental to 

Specified Activities; Construction of 

the Parsons Slough Sill Project 

AGENCY: National Marine Fisheries 

Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Notice; issuance of an incidental 

harassment authorization. 

SUMMARY: In accordance with the 

Marine Mammal Protection Act 

(MMPA) regulations, notification is 

hereby given that NMFS has issued an 

Incidental Harassment Authorization 

(IHA) to the NOAA Restoration Center, 

Southwest Region, to take, by Level B 

Harassment only, small numbers of 

harbor seals (Phoca vitulina richardsi) 

incidental to pile driving associated 

with the Parsons Slough Sill Project. 

DATES: Effective November 24, 2010, 

through February 28, 2011. 

ADDRESSES: A copy of the IHA, the 

application, and the associated 

Environmental Assessment and Finding 

of No Significant Impact are available by 

writing to P. Michael Payne, Chief, 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910 or by telephoning the contact 

listed here (see FOR FURTHER

INFORMATION CONTACT), or visiting the 

Internet at: http://www.nmfs.noaa.gov/ 

pr/permits/incidental.htm#applications. 

Documents cited in this notice may be 

viewed, by appointment, during regular 

business hours, at the aforementioned 

address. 

FOR FURTHER INFORMATION CONTACT: 

Brian D. Hopper or Candace Nachman, 

Office of Protected Resources, NMFS, 

(301) 713–2289, or Monica DeAngelis, 

NMFS Southwest Region, (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, 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.’’ 

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

established an expedited process by 

which citizens of the U.S. can apply for 

an authorization to incidentally take 

small numbers of marine mammals by 

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 

authorization published in the Federal 

Register for the incidental harassment of 

marine mammals. Within 45 days of the 

close of the comment period, NMFS 

must either issue or deny the 

authorization. 

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 

NMFS received an application on 

August 5, 2010, from the NOAA 

Restoration Center, Southwest Region, 

for the taking, by harassment, of marine 

mammals incidental to the construction 

of a partially submerged tidal barrier 

(sill) across the mouth of the Parsons 

Slough Channel. Parsons Slough is 

located on the southeast side of the 

Elkhorn Slough Estuary, which is 

situated 90 miles (145 km) south of San 

Francisco and 20 miles (32 km) north of 

Monterey in Monterey County, 

California. The application was 

determined to be complete on August 

16, 2010. Pile driving during the project 

may result in harassment of Pacific 


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harbor seals (Phoca vitulina richardsi) 

located in the action area. In accordance 

with MMPA implementing regulations, 

NMFS issued a notice in the Federal 

Register on October 5, 2010 (75 FR 

61432), requesting comments from the 

public on the proposed IHA. 

The specified activities are also likely 

to result in the take by incidental 

harassment of southern sea otters 

(Enhydra lutirs). The US Fish and 

Wildlife Service (USFWS) has 

management jurisdiction over southern 

sea otters. NOAA received a separate 

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

authorization for incidental take of sea 

otters from USFWS. The potential take 

of sea otters is not further addressed in 

this notice. 

Description of the Specified Activity 

A complete description of the 

specified activity may be found in 

NMFS’ proposed IHA notice in the 

Federal Register (75 FR 61432) and a 

summary is provided here. 

In order to reduce tidal scour, the 

NOAA Restoration Center, Southwest 

Region, proposes to construct a partially 

submerged tidal barrier (sill), similar to 

an underwater wall, across the mouth of 

Parsons Slough. The sill structure 

would prevent head cutting (i.e., erosion 

in a channel caused by an abrupt change 

in slope) in Elkhorn Slough from 

migrating upstream into Parsons Slough, 

would retain sediment that accretes 

within Parsons Slough, and would 

reduce the tidal prism of Parsons 

Slough. This reduction in tidal prism 

would reduce current velocities 

between Parsons Slough and the mouth 

of Elkhorn Slough, thereby reducing 

tidal scour. The proposed project, which 

is referred to as the Parsons Slough 

Project, would also include 

establishment of artificial reefs to 

support populations of Olympia oysters 

(Ostrea lurida) in the northeastern part 

of the Parsons Slough Complex. 

The sill structure would be 

constructed of steel sheet piles that 

would extend 270 ft (82.3 m) across the 

mouth of the Parsons Slough Channel. 

A 100 ft (30 m) wide lower area, located 

in the center of the structure, would 

allow water to flow between Parsons 

Slough and Elkhorn Slough. This 

portion of the structure would be 

submerged more than 99 percent of the 

time. The center of the lower part of the 

structure would include a notch 

approximately 25 ft (7.6 m) wide, with 

the top elevation of the sheet pile in this 

notch at an elevation of ¥5 ft (¥1.5 m). 

The notch would provide for the 

passage of water at all tide levels and 

would facilitate the movement of fish 

and wildlife into and out of Parsons 

Slough. The top elevation of the sheet 

pile in the remaining 75 ft (23 m) of the 

central section of the base structure 

would be ¥2 ft (¥0.6 m). The 

remaining portions of the sheet piles to 

the left and right of the center portion 

of the structure would have a top 

elevation of 9.6 ft (3 m). 

All in-channel construction activities 

would be constructed from barges, and 

no heavy equipment would enter the 

channels. Most of these construction 

activities are in-water (e.g., installation 

of end-bearing piles and sheet piles, 

placement of rockfill buttress). 

Installation of the sheet pile wall 

would be supported by two rows of 

seven end-bearing piles, as well as a 

single row of sheet pile located between 

the piles. The end-bearing piles would 

be driven through the soft soils to 

penetrate 10 ft (3 m) below the top of 

the dense sandy deposits that underlie 

the soft soils at an elevation of 

approximately ¥80 ft (¥24.4 m). 

Additionally, up to 45 temporary endbearing piles may be installed in the 

main channel of Elkhorn Slough at the 

Kirby Park staging site (approximately 

2 mi (3.2 km) from the project site) to 

facilitate barge docking and loading (if 

the temporary dock is constructed on 

pilings, rather than temporary rock-fill). 

These piles, if necessary, would be 

removed after construction when the 

floating dock is disassembled. Pile 

driving at the staging site is not 

expected to result in any harbor seal 

takes. Harbor seals usually occur just 

beyond the mouth of Elkhorn Slough in 

the Moss Landing harbor and in the 

Salinas River channel south of the Moss 

Landing Bridge, and the lower portion 

of Elkhorn Slough extending up to 

Parsons Slough and Rubis Creek. Harbor 

seals do not typically use the part of the 

estuary that leads up to Kirby Creek and 

the nearest occupied areas and haul-out 

locations (approximately 2 mi (3.2 km to 

the south) are beyond the estimated 

distances to NMFS’ current threshold 

sound levels from pile driving proposed 

at the Kirby Park staging area (see Table 

3 and Table 4). 

A vibratory hammer would be used to 

start driving all sheet pile and endbearing piles, but an impact hammer 

may be required to complete driving. If 

an impact hammer is required during 

construction, cushioning blocks would 

be used to attenuate the sound. 

Vibratory hammers clamp onto the sheet 

pile; therefore, no cushioning blocks 

would be used during vibratory pile 

driving. 

TABLE 1—TYPICAL NEAR-SOURCE

(10 M) Underwater Noise Levels 

Type of pile Driving 

technique 

RMS 

level 

H-Pile .............. Impact Hammer.183 dB. 

H-Pile .............. Vibratory Hammer.155 dB. 

Sheet Pile ........ Impact Hammer.175 dB. 

Sheet Pile ........ Vibratory Hammer.160 dB. 

TABLE 2—AIRBORNE NOISE LEVEL

(15 M) 

Type of pile Driving technique 

Lmax/rms 

level 

H-Pile .............. Impact Hammer.109 dBA. 

H-Pile .............. Vibratory Hammer.95 dBA. 

Sheet Pile ........ Impact Hammer.106 dBA. 

Sheet Pile ........ Vibratory Hammer.97 dBA. 

The applicant anticipates that 

construction would last 11 to 15 weeks 

beginning around November 2010 and 

ending in February 2011. In-water 

construction would primarily occur 

during slack tide. Actual pile driving 

time during this work window will 

depend on a number of factors, such as 

sediments, currents, presence of marine 

mammals, and equipment maintenance; 

however, the applicant anticipates that 

it will take approximately 20 days to 

install the end-bearing piles and sheet 

pile during the 11 to 15 weeks of 

construction. Construction activities at 

night are also anticipated during this 

11 to 15 week period but would not last 

for more than 5 hrs at a time (duration 

of a slack tide at night). 

Comments and Responses 

A notice of receipt and request for 

public comments on the application and 

proposed authorization was published 

on October 5, 2010 (75 FR 61432). 

During the 30-day public comment 

period, NMFS received comments from 

the Marine Mammal Commission 

(Commission) on the proposed IHA. No 

comments were received from any other 

members of the public. 

Comment 1: The Commission 

recommended that NMFS require the 

applicant use location-specific 

environmental parameters to re-estimate 

safety zones and then use in-situ 

measurements to verify and, if need be, 

refine the safety zone prior to or at the 

beginning of sill construction. 


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Response: Because the estimated 

source levels of the vibratory pile 

drivers are 30–35 dB below 190 dB, 

NMFS is confident that the sound 

produced during vibratory pile driving 

will not approach the threshold for 

Level A harassment of pinnipeds (190 

dB re: 1 microPa (rms)). Therefore, 

NMFS will not require a sound 

verification study during vibratory pile 

driving. However, with respect to 

impact pile driving, NMFS will require 

the applicant to conduct a sound 

verification study to ensure that the 

safety zone is adequate to prevent 

exposing pinnipeds to sound levels that 

may result in Level A harassment. 

Comment 2: The Commission 

recommended that NMFS require that 

observations be made during all softstarts to gather the data needed to 

analyze and report on its effectiveness 

as a mitigation measure. 

Response: NMFS agrees that the 

NOAA Restoration Center, Southwest 

Region, needs to monitor for marine 

mammals during all soft-starts. PSOs 

will be on-site and monitoring for 

marine mammals at least 30 minutes 

prior to, during, and after all 

construction activities (including during 

soft-starts for pile driving). NMFS 

believes that these monitoring 

requirements will allow for adequate 

interpretation of how marine mammals 

behave in response to pile driving, 

including soft-starts. 

Description of Marine Mammals in the 

Area of the Specified Activity 

Marine mammals with confirmed 

occurrences in Parsons Slough are 

Pacific harbor seals and southern sea 

otters (Enhydra lutirs). However, 

southern sea otters are managed by the 

USFWS and will not be considered 

further in this IHA notice. Information 

on Pacific harbor seals was provided in 

the October 5, 2010 (75 FR 61432) 

Federal Register notice. 

Potential Effects of the Specified 

Activity on Marine Mammals 

Pile driving at the site of the proposed 

sill may temporarily impact marine 

mammal behavior within the action area 

due to elevated noise levels both in-air 

and in-water. A detailed description of 

potential impacts to marine mammals 

can be found in NMFS’ October 5, 2010 

Federal Register notice (75 FR 61432) 

and are summarized here. 

Marine mammals produce sounds in 

various contexts and use sound for 

various biological functions including, 

but not limited to: (1) Social 

interactions; (2) foraging; (3) orientation; 

and (4) predator detection. Interference 

with producing or receiving these 

sounds may result in adverse impacts. 

Audible distance, or received levels 

(RLs) will depend on the nature of the 

sound source, ambient noise conditions, 

and the sensitivity of the receptor to the 

sound (Richardson et al., 1995). Type 

and significance of marine mammal 

reactions to noise are likely to be 

dependent on a variety of factors 

including, but not limited to, the 

behavioral state (e.g., feeding, traveling, 

etc.) of the animal at the time it receives 

the stimulus, frequency of the sound, 

distance from the source, and the level 

of the sound relative to ambient 

conditions (Southall et al., 2007). 

Hearing Impairment 

Temporary or permanent hearing 

impairment is possible when marine 

mammals are exposed to very loud 

sounds. Temporary threshold shift 

(TTS) and permanent threshold shift 

(PTS). Relationships between TTS and 

PTS have not been studied in marine 

mammals, but are assumed to be similar 

to those in humans and terrestrial 

mammals. There is no empirical data for 

onset of PTS in any marine mammal, 

therefore, PTS-onset must be estimated 

from TTS-onset measurements and from 

the rate of TTS growth with increasing 

exposure levels above those eliciting 

TTS-onset. NMFS presumes PTS to be 

likely if the threshold is reduced by 

≥ 40 dB (i.e., 40 dB of TTS). Due to 

required mitigation measures and the 

fact that source levels of the impact and 

vibratory hammers are below the 190 dB 

injury threshold used by NMFS for 

pinniped species, NMFS does not 

expect that harbor seals will be exposed 

to levels that could elicit PTS or even 

mild TTS. 

Behavioral Impacts 

The source of underwater noise 

during construction would be pile 

driving to install the end-bearing piles 

and sheet pile tidal barrier. There are 

limited data available on the effects of 

non-pulse noise on pinnipeds in-water; 

however, field and captive studies to 

date collectively suggest that pinnipeds 

do not strongly react to exposure 

between 90–140 dB re 1 microPa. 

Seals exposed to sound levels that 

exceed the Level B harassment 

threshold (120 dB for non-pulse; 160 dB 

for pulse) may exhibit temporary avoid 

behavior around the Union Pacific 

Railroad bridge, which may affect 

movement of seals under the bridge or 

inhibit them from resting at haul-out 

sites near the bridge. The estimated 11– 

15 weeks required for construction may 

result in the temporary abandonment of 

haul-out sites near the bridge and 

within Parsons Slough. Although harbor 

seals may temporarily abandon haul out 

sites, there are an abundance of other 

haul-out sites in the area. Additionally, 

the required mitigation measures restrict 

construction to the non-breeding season 

to avoid impacts to potentially sensitive 

mother-pup pairs. In general, ambient 

noise levels in the area are low; 

however, animals in the vicinity of the 

project site have been exposed to 

various types and levels of 

anthropogenic noise from recreational 

boating to the15–20 trains that pass 

daily over the Union Pacific Railroad 

bridge. Harbor seals have also been 

exposed to in-water construction 

activities at the site and animals are 

likely tolerant or habituated to 

anthropogenic disturbance, including 

pile driving. For example, in October 

2002, the Union Pacific Railroad 

replaced the existing wooden pile trestle 

bridge spanning the Parsons Slough 

Channel with a 165 ft (50.3 m) slab 

girder bridge. Biological monitors 

reported that harbor seals were present 

during construction and came and went 

from the site without any visible signs 

of stress or undue harassment (MACTEC 

Engineering and Consulting, 2003). 

Based on these studies and 

monitoring reports, NMFS has 

determined that harbor seals exposed to 

sound levels exceeding the Level B 

harassment thresholds (120 dB for nonpulse; 160 dB for pulse) may exhibit 

temporary avoidance behavior. The 

most likely impact to harbor seals from 

the sheet pile and end-bearing pile 

installation would be temporary 

disruption of resting patterns because 

individual harbor seals may abandon 

haul out sites and leave the area during 

construction activities. However, the 

scheduling of construction activities 

during the non-breeding season will 

avoid more severe effects, such as 

reduced pup survival due to motherpup separation and interrupted suckling 

bouts. Temporary hearing loss is 

unlikely for those harbor seals that enter 

into the zone of Level B harassment 

because source levels from vibratory 

pile driving are not loud enough to 

induce TTS. Furthermore, the short 

duration of impact pile driving and 

close proximity to the source necessary 

to induce TTS makes it unlikely that 

harbor seals would be exposed to source 

levels loud enough to induce TTS. 

Permanent hearing loss or other harm is 

not anticipated due to monitoring and 

mitigation efforts (described below) and 

the low source levels of pile driving 

hammers to be used in this project; 

however, even without mitigation 

measures, it is unlikely that harbor seals 

would experience Level A harassment, 


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serious injury, or mortality because of 

the close proximity to the source 

necessary to induce these types of 

impacts and the avoidance behavior 

expected of harbor seals during pile 

driving activities. 

Anticipated Effects on Habitat 

A detailed description of the 

anticipated effects on habitat can be 

found in NMFS’ October 5, 2010 

Federal Register notice (75 FR 61432) 

and are summarized here. 

The action would permanently alter 

habitat within the project footprint; 

however, harbor seals haul-out in many 

locations throughout the estuary, and 

the action is not expected to have any 

habitat-related effects that could cause 

significant or long-term consequences 

for individual harbor seals or their 

population. Long-term operation of the 

sill is expected to result in the 

conversion of intertidal habitat to 

subtidal habitat, which will have no 

adverse effect and possibly a long-term 

beneficial effect on harbor seals by 

improving ecological function of the 

slough, such as higher species diversity, 

more species abundance, larger fish, and 

better habitat. It is unlikely that the sill 

structure itself, when completed, will 

result in long-term adverse effects on 

harbor seal movements through the 

slough because the sill structure allows 

for continued access to Parsons Slough 

by aquatic species, including harbor 

seals. Harbor seals and forage fish may 

occupy the same habitat, and harbor 

seal distributions within the estuary 

reflect foraging locations to some extent. 

Noise from pile-driving would result in 

degradation of in-water habitat; 

however, this impact would be short 

term and site-specific, and habitat 

conditions would return to their predisturbance state shortly after the 

cessation of in-water construction 

activities. NMFS has determined that 

the project is not expected to have any 

habitat-related effects that could cause 

significant or long-term consequences 

for individual marine mammals or the 

food sources that they utilize. 

Mitigation Measures 

In order to issue an incidental take 

authorization (ITA) under Section 

101(a)(5)(D) of the MMPA, NMFS must 

set forth the permissible methods of 

taking pursuant to such activity, and 

other means of effecting the least 

practicable impact on such species or 

stock and its 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). 

The applicant has proposed 

mitigation measures in their application 

for reducing impacts to environmental 

resources. For example, installing endbearing piles and sheet pile with a 

vibratory hammer instead of an impact 

hammer will introduce less sound into 

the marine environment and prevent 

marine mammals from being exposed to 

injurious levels of sound. Some of the 

following mitigation measures were 

developed by the NOAA Restoration 

Center, Southwest Region, and accepted 

by NMFS while others were developed 

in discussions between the applicant 

and NMFS’ Office of Protected 

Resources. These required mitigation 

measures are designed to eliminate the 

potential for injury and reduce Level B 

harassment of marine mammals. 

Establishment of Safety Zones and Shut 

Down Requirements 

Vibratory pile driving does not result 

in source levels that are at or above 

NMFS’ harassment threshold for Level 

A harassment; therefore, shut down 

zones would not be required for 

vibratory pile driving. For impact pile 

driving, the isolpleth for the Level A 

harassment threshold (190 dB re 1 

microPa rms) is modeled to be within 10 

ft (3 m) of end-bearing piles driven with 

an impact hammer and 5 ft (1.5 m) of 

sheet piles driven with an impact 

hammer. The NOAA Restoration Center, 

Southwest Region, will delay impact 

pile driving if a harbor seal comes 

within 33 ft (10 m) of the pile being 

driven, which further reduces the risk of 

Level A harassment. In addition, if an 

impact hammer is required during 

construction, cushioning blocks will be 

used to help attenuate the sound. At the 

commencement of impact pile driving, 

the NOAA Restoration Center, 

Southwest Region, will conduct inwater acoustic monitoring for the 

purpose of verifying the estimated safety 

zones. Based on acoustic monitoring 

data collected during impact pile 

driving, the NOAA Restoration Center, 

Southwest Region, may establish a new 

safety zone where sound levels do not 

exceed 190 dB rms. Finally, under the 

terms of the IHA issued by the USFWS, 

in-air sound levels associated with 

construction activities will also be 

monitored. 

Construction Timing 

Pile driving is anticipated to occur 

during an 11 to 15 week period 

beginning in November 2010, and 

ending in February 2011. This work 

window was selected to coincide with 

the non-pupping season for harbor seals 

and avoid haul-out site abandonment 

during pupping season that may result 

in reduced pup survival due to mother/ 

pup separation and interrupted suckling 

bouts. The work window also coincides 

with the USFWS’ required construction 

work window to avoid the peak 

pupping period for sea otters (75 FR 

42121, July 20, 2010). In addition, inwater construction activities such as 

pile driving will be conducted during 

high tide when haul-out sites are 

inaccessible, and harbor seals are largely 

absent from Parsons Slough (Maldini et 

al., 2009). 

Limited Use of Impact Hammer 

All piles will be installed using a 

vibratory pile driver unless sufficient 

depth cannot be reached, at which point 

an impact hammer may be used. If an 

impact hammer is required, cushioning 

blocks will be used as an attenuation 

device to reduce hydroacoustic sound 

levels and avoid the potential for injury. 

These actions would also serve to 

reduce impacts to harbor seals. 

Mitigation Monitoring 

Monitoring during construction of the 

sill will occur from an observation post 

adjacent to the Union Pacific railroad 

bridge as well as from a zodiac. 

Monitoring will be conducted by 

qualified, NMFS-approved protected 

species observers (PSOs). On a daily 

basis, construction monitoring will 

begin 30 minutes prior to the initiation 

of construction activities and continue 

until 30 minutes after construction 

activities have ceased for the day. The 

PSO will maintain a log that documents 

numbers of marine mammals present 

before, during, and at the end of daily 

construction activities. In addition, the 

PSO will record basic weather 

conditions (ambient temperature, tidal 

activity, precipitation, wind, horizontal 

visibility, etc.), as well as marine 

mammal behavior. 

The PSO will have the authority to 

cease construction if a harbor seal is 

detected within or approaching the 

safety zone or if an animal appears 

injured. Within 30 days of the 

completion of the sill construction, a 

report will be completed and submitted 

to NMFS that will include a summary 

of the daily log maintained by the PSO 

during construction. In addition, the 

report will include an assessment of the 

number of harbor seals that may have 

been harassed as a result of pile driving 

activities, based on direct observation of 

harbor seals observed in the area. 

Soft Start to Pile Driving Activities 

A ‘‘soft start’’ technique will be used 

at the beginning of each pile installation 

to allow any harbor seals that may be in 

the immediate area to leave before the 


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activity reaches its full energy. The soft 

start requires contractors to initiate pile 

driving with a vibratory hammer for 15 

seconds at reduced energy followed by 

a 1-minute waiting period. This 

procedure will be repeated two 

additional times. Due to the short 

duration of impact pile driving 

(typically lasting between 1 and 10 

minutes), the traditional ramp-up 

requirement does not apply because it 

actually increases the duration of noise 

emitted into the environment, and 

monitoring should effectively detect 

harbor seals within or near the proposed 

impact pile driving shut down zone. If 

any harbor seals are sighted within or 

approaching the 33 ft (10 m) shut down 

zone prior to pile driving, the 

construction contractor will delay piledriving until the animal has moved 

outside and is on a path away from the 

safety zone or after 15 minutes have 

elapsed since the last sighting. 

NMFS has carefully evaluated the 

applicant’s mitigation measures. NMFS 

accepted some of the applicant’s 

measures, such as the seasonal timing of 

construction, suggested additional 

mitigation measures like the 

establishment of a 33 ft (10 m) safety 

zone and hydroacoutic monitoring to 

measure sound pressure levels from pile 

driving, and considered a range of other 

measures in the context of ensuring that 

NMFS prescribes the means of effecting 

the least practicable impact on the 

affected marine mammal species and 

stocks and their habitat. Our evaluation 

of potential measures included 

consideration of the following factors in 

relation to one another: (1) The manner 

in which, and the degree to which, the 

successful implementation of the 

measure is expected to minimize 

adverse impacts to marine mammals; 

(2) the proven or likely efficacy of the 

specific measure to minimize adverse 

impacts as planned; and (3) the 

practicability of the measure for 

applicant implementation. 

Based on our evaluation of the 

applicant’s measures, as well as other 

measures developed by NMFS in 

cooperation with the applicant, NMFS 

has determined that the required 

mitigation measures provide the means 

of effecting the least practicable impact 

on marine mammal species or stocks 

and their habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance. 

Monitoring and Reporting 

In order to issue an ITA for an 

activity, Section 101(a)(5)(D) of the 

MMPA states that NMFS must, where 

applicable, set forth ‘‘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 

ITAs 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 in the action 

area. 

Monitoring during construction of the 

sill would occur from an observation 

post adjacent to the Union Pacific 

railroad bridge, as well as from a zodiac. 

Monitoring would be conducted by 

qualified, NMFS-approved PSOs. On a 

daily basis, construction monitoring 

would begin 30 minutes prior to the 

initiation of construction activities and 

continue until 30 minutes after 

construction activities have ceased for 

the day. The PSO would maintain a log 

that documents numbers of marine 

mammals present before, during, and at 

the end of daily construction activities. 

In addition, the PSO would record basic 

weather conditions (ambient 

temperature, tidal activity, 

precipitation, wind, horizontal 

visibility, etc.), as well as marine 

mammal behavior. 

The PSO would have the authority to 

cease construction if a harbor seal is 

detected within or approaching the 

safety zone or if an animal appears 

injured. Within 30 days of the 

completion of the sill construction, a 

report would be completed and 

submitted to NMFS that would include 

a summary of the daily log maintained 

by the PSO during construction. In 

addition, the report would include an 

assessment of the number of harbor 

seals that may have been harassed as a 

result of pile driving activities, based on 

direct observation of harbor seals 

observed in the area. 

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 stock in the wild by causing 

disruption of behavioral patterns, 

including but not limited to, migration, 

breathing, nursing, breeding, feeding, or 

shelter [Level B harassment]. 

Based on the NOAA Restoration 

Center, Southwest Region’s application 

and subsequent analysis, the impact of 

the described pile driving operations 

may result in, at most, short-term 

modification of behavior by small 

numbers of harbor seals within the 

action area. Harbor seals may avoid the 

area or halt any behaviors (e.g., resting) 

when exposed to anthropogenic noise. 

Due to the abundance of suitable resting 

habitat available in the greater Elkhorn 

Slough estuary, the short-term 

displacement of resting harbor seals is 

not expected to affect the overall fitness 

of any individual animal. 

Current NMFS practice regarding inwater exposure of marine mammals to 

anthropogenic noise is that in order to 

avoid the potential for injury of marine 

mammals (e.g., PTS), pinnipeds should 

not be exposed to sounds of 190 dB rms 

or above. This level is considered 

precautionary as it is likely that more 

intense sounds would be required 

before injury would actually occur 

(Southall et al., 2007). Potential for 

behavioral harassment (Level B) is 

considered to have occurred when 

marine mammals are exposed to sounds 

at or above 160 dB rms for impulse 

sounds (e.g., impact pile driving) and 

120 dB rms for non-pulse noise (e.g., 

vibratory pile driving), but below the 

thresholds mentioned above. These 

levels are considered to be 

precautionary. 

Current NMFS practice regarding inair exposure of pinnipeds to noise 

generated from human activity is that 

the onset of Level B harassment for 

harbor seals is 90 dB rms re 20 microPa. 

In-air noise calculations from using an 

impact pile driver predict that noise 

levels will reach 90 dB rms re 20 

microPa within 600 ft (183 m) for endbearing piles and 450 ft (137 m) for 

sheet piles. For installation using a 

vibratory hammer, noise levels will 

reach 90 dB rms within 100 ft (30 m) of 

the end-bearing pile and 120 ft (36.6 m) 

for sheet pile. Harbor seals are known to 

haul-out on the mudflats 200 ft (61 m) 

east of the work site and 680 ft (207 m) 

west of the work site, therefore, in-air 

noise may contribute to harassment for 

the proposed action. 

Estimated distances to NMFS’ current 

threshold sound levels from pile driving 

during the Parsons Slough Sill Project 

are presented in Table 3 below. These 

estimates are based on the worst case 

scenario of driving the H-piles and sheet 

piles but would be carried over for all 

pile driving. Note that despite short 

distances to the Level A harassment 

isolpleth, the NOAA Restoration Center, 

Southwest Region, will implement a 10 

m safety zone until empirical pile 

driving measurements can be made and 

distances to this threshold isopleths can 

be verified. 


jlentini on DSKJ8SOYB1PROD with NOTICES
74692 Federal Register / Vol. 75, No. 230 / Wednesday, December 1, 2010 / Notices 

TABLE 3—UNDERWATER DISTANCES TO NMFS HARASSMENT THRESHOLD LEVELS DURING PILE DRIVING (DB RE: 1μPA

RMS) 

Pile type Hammer type 

Sound levels (rms) 

190 dB 160 dB 120 dB 

H-Piles .................................................. Impact .................................................. 3 m (10 ft) ............. 227 m (745 ft) ....... n/a. 

H-Piles .................................................. Vibratory .............................................. 0 ............................ n/a. ........................ 1,140 m (3,740 ft). 

Sheet Pile ............................................. Impact .................................................. 1.5 m (5 ft) ............ 75 m (245 ft) ......... n/a. 

Sheet Pile ............................................. Vibratory .............................................. 0 ............................ n/a ......................... 2,256 m (7,400 ft). 

TABLE 4—AIRBORNE DISTANCES TO NMFS HARASSMENT THRESHOLD LEVELS DURING PILE DRIVING (DB RE: 20μPA

RMS) 

Pile type Hammer type 

Sound 

level (rms) 

90 dB 

H-Piles ........................................................................................................................................ Impact ............................................... 600 m. 

H-Piles ........................................................................................................................................ Vibratory ........................................... 100 m. 

Sheet Pile ................................................................................................................................... Impact ............................................... 450 m. 

Sheet Pile ................................................................................................................................... Vibratory ........................................... 120 m. 

It is difficult to estimate the number 

of harbor seals that could be affected by 

the installation of end-bearing piles and 

sheet pile because the animals only 

venture in the project areas to haul-out 

during the day when the tide is low. Inwater construction will occur near 

several haul-out sites and, although the 

construction activities are planned to 

take place during slack tide (some of 

which will be on either side of high 

tide, when harbor seals are less likely to 

be present), there may still be animals 

exposed to sound from pile driving even 

if the number of individual harbor seals 

expected to be encountered is very low. 

These individuals would most likely be 

adult males and females, as well as 

juveniles. The NOAA Restoration 

Center, Southwest Region requests, and 

NMFS proposes, authorization to take 

2,000 individual harbor seals incidental 

to pile driving activities over the course 

of the project (November XX, 2010 

through February 28, 2011). This is an 

estimate based on the average number of 

harbor seals that occupy Parsons Slough 

during the day (100) multiplied by the 

total number of days the applicant 

expects pile driving activities to occur 

(20 days). NMFS considers this to be an 

over-estimate for the following reasons: 

(1) As mentioned above, haul-out sites 

are inaccessible to harbor seals during 

high tide, and NMFS would not expect 

harbor seals to be affected by pile 

driving activities during the days/times 

when pile driving and high tide events 

co-occur; (2) harbor seals are likely 

absent from Parsons Slough at night 

when they are likely foraging in 

Monterey Bay and will not be exposed 

to sound generated during pile driving 

that is proposed to take place in the 

evening hours (no more than 5 hrs at a 

time); and, (3) based on previous survey 

effort conducted in Parsons Slough, 

harbor seals would move out of the 

disturbance area when construction 

activities are initiated and move west 

(downstream) towards Seal Bend until 

the end of construction. 

Negligible Impact and Small Numbers 

Analysis and Determination 

The regulations implementing the 

MMPA found at 50 CFR 216.103 define 

‘‘negligible impact’’ 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 (none of which 

would be authorized here); (2) the 

number and nature of anticipated 

injuries (none of which would be 

authorized here); and (3) the number, 

nature, and duration of Level B 

harassment, and the context in which 

the takes occur (e.g., will the takes occur 

in an area or time of significance for 

harbor seals, are takes occurring to a 

small, localized population?). 

As described above, harbor seals will 

not be exposed to activities or sound 

levels which will result in injury (e.g., 

PTS), serious injury, or mortality. Takes 

will be limited to Level B behavioral 

harassment. Pile driving will take place 

in the relatively shallow estuarine 

waters of Elkhorn Slough and affect 

harbor seals that belong to a stock that 

occurs throughout California. Although 

two harbor seal haul-outs are located 

within 300–400 ft of the action area 

(waters around the Union Pacific 

Railroad bridge), the Parsons Slough 

Complex is not considered to be an 

important habitat for harbor seals 

compared to other sites in the area (e.g. 

Seal Bend). NMFS has determined that 

no injuries or mortalities are anticipated 

to occur as a result of the proposed 

action, and none are to be authorized. In 

addition, harbor seals in the area are not 

expected to incur hearing impairment 

(i.e., TTS or PTS) or non-auditory 

physiological effects. Although it is 

possible for some individual harbor 

seals to be exposed to sounds from pile 

driving activities more than once, the 

extent of these multi-exposures are 

expected to be limited by the constant 

movement of harbor seals in and out of 

Elkhorn Slough and the timing of inwater construction to coincide with 

periods when the animals are less likely 

to be present. 

Pacific harbor seals are not listed as 

depleted under the MMPA or threatened 

or endangered under the Endangered 

Species Act (ESA). Although 

populations of Pacific harbor seals were 

greatly depleted by the end of the 19th 

century due to commercial hunting, the 

population has increased dramatically 

during the last half of the 20th century 

and appears to be stabilizing at what 

may be their carrying capacity (Caretta 

et al., 2009). The amount of take the 

NOAA Restoration Center, Southwest 

Region, requests, and NMFS authorizes 

is considered small (less than 6 percent) 

relative to the estimated population of 

34,233 Pacific harbor seals. 


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 230 / Wednesday, December 1, 2010 / Notices 74693 

Pacific harbor seals may be 

temporarily impacted by pile driving 

noise. However, these animals are 

expected to avoid the area, thereby 

reducing exposure and impacts. In 

addition, although the sill project is 

expected to take 11 to 15 weeks to 

complete, the installation of end-bearing 

piles and sheet pile would only occur 

for approximately 20 days. Further, the 

Union Pacific Railroad bridge that is 

located in the vicinity of the project site 

has approximately 15–20 trains passing 

over it each day and harbor seals haulout on the mud flats located on either 

side of the bridge. During a previous 

project at this site involving pile 

driving, harbor seals were observed to 

be present during construction and 

reportedly entered and exited the area 

without any visible signs of stress or 

undue harassment (MACTEC 

Engineering and Consulting 2003). 

Therefore, animals are likely tolerant or 

habituated to anthropogenic 

disturbance, including pile driving. 

Finally, breeding and pupping occur 

outside of the proposed work window; 

therefore, no disruption to reproductive 

behavior is anticipated. There is no 

anticipated effect on annual rates of 

recruitment or survival of the affected 

harbor seal population. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

mitigation and monitoring measures, 

NMFS determined that the Parsons 

Slough sill project will result in the 

incidental take of small numbers of 

marine mammals, by Level B 

harassment only, and that the total 

taking from the Parsons Slough project 

will have a negligible impact on the 

affected species or stocks. 

Impact on Availability of Affected 

Species or Stock for Taking for 

Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. Endangered Species Act (ESA) 

No ESA-listed species under NMFS’ 

jurisdiction are expected to be affected 

by these activities. Therefore, NMFS has 

determined that a section 7 consultation 

for issuance of the proposed IHA under 

the ESA is not required. The NOAA 

Restoration Center, Southwest Region, 

completed a formal consultation with 

the USFWS because the project is 

within the range of the southern sea 

otter, which is listed as threatened 

under the ESA. On October 6, 2010, the 

U.S. Fish and Wildlife Service issued a 

Biological Opinion and Incidental Take 

Statement to the NOAA Restoration 

Center, Southwest Regional pursuant to 

Section 7 of the ESA. The Biological 

Opinion concluded that impacts from 

the NOAA Restoration Center, 

Southwest Region’s project would not 

jeopardize the continued existence of 

ESA-listed southern sea otters. 

National Environmental Policy Act 

(NEPA) 

Pursuant to NEPA, the general 

impacts associated with the design and 

construction phases of the proposed 

action are described in the CommunityBased Restoration Program (CRP) 

Programmatic Environmental 

Assessment (PEA) and the 

Supplemental Programmatic 

Environmental Assessment (SPEA), 

which were prepared by the NOAA 

Restoration Center, Southwest Region. 

The NOAA Restoration Center, 

Southwest Region, completed a 

Targeted Supplemental Environmental 

Assessment (TSEA) to include all 

project-specific impacts not described in 

the CRP PEA/SPEA. NMFS considered 

the TSEA to be adequate and adopted it 

on November 22, 2010. On November 

23, 2010, NMFS issued a Finding of No 

Significant Impact on the TSEA. 

Authorization 

As a result of these determinations, 

NMFS has issued an IHA to the NOAA 

Restoration Center, Southwest Region, 

for the take of marine mammals 

incidental to the Parsons Slough project, 

provided the previously mentioned 

mitigation, monitoring, and reporting 

requirements are incorporated. 

Dated: November 23, 2010. 

P. Michael Payne, 

Acting Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. 2010–30235 Filed 11–30–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XAO61 

Schedules for Atlantic Shark 

Identification Workshops and 

Protected Species Safe Handling, 

Release, and Identification Workshops 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of public workshops. 

SUMMARY: Free Atlantic Shark 

Identification Workshops and Protected 

Species Safe Handling, Release, and 

Identification Workshops will be held in 

January, February, and March of 2011. 

Certain fishermen and shark dealers are 

required to attend a workshop to meet 

regulatory requirements and maintain 

valid permits. Specifically, the Atlantic 

Shark Identification Workshop is 

mandatory for all federally permitted 

Atlantic shark dealers. The Protected 

Species Safe Handling, Release, and 

Identification Workshop is mandatory 

for vessel owners and operators who use 

bottom longline, pelagic longline, or 

gillnet gear, and who have also been 

issued shark or swordfish limited access 

permits. Additional free workshops will 

be conducted during 2011. 

DATES: The Atlantic Shark Identification 

Workshops will be held January 6, 

February 3, and March 10, 2011. 

The Protected Species Safe Handling, 

Release, and Identification Workshops 

will be held January 11, January 13, 

January 24, February 16, February 23, 

March 16, and March 23, 2011. 

See SUPPLEMENTARY INFORMATION for 

further details. 

ADDRESSES: The Atlantic Shark 

Identification Workshops will be held in 

Vero Beach, FL; Norfolk, VA; and 

Corpus Christi, TX. 

The Protected Species Safe Handling, 

Release, and Identification Workshops 

will be held in Portland, ME; 

Manahawkin, NJ; Daytona Beach, FL; 

Key Largo, FL; Ocean City, MD; 

Galveston, TX; and Clearwater, FL. 

See SUPPLEMENTARY INFORMATION for 

further details on workshop locations. 

FOR FURTHER INFORMATION CONTACT: 

Richard A. Pearson by phone: (727) 

824–5399, or by fax: (727) 824–5398. 

SUPPLEMENTARY INFORMATION: The 

workshop schedules, registration 

information, and a list of frequently 

asked questions regarding these 

workshops are posted on the Internet at: 

http://www.nmfs.noaa.gov/sfa/hms/ 

workshops/. 

Atlantic Shark Identification 

Workshops 

Since January 1, 2008, Atlantic shark 

dealers have been prohibited from 

receiving, purchasing, trading, or 

bartering for Atlantic sharks unless a 

valid Atlantic Shark Identification 

Workshop certificate is on the premises 

of each business listed under the shark 

dealer permit which first receives 

Atlantic sharks (71 FR 58057; October 2, 

2006). Dealers who attend and 

successfully complete a workshop are 

issued a certificate for each place of 

business that is permitted to receive 

sharks. These certificate(s) are valid for 

3 years. Approximately 52 free Atlantic 


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