Federal Register / Vol. 62, No. 246 / Tuesday, December 23, 1997 / Notices 67045

Initiaiton of Reviews

In accordance with section 19 CFR

351.221(c)(1)(i), we are initiating

administrative reviews of the following

antidumping and countervailing duty

orders and findings. We intend to issue

the final results of these reviews not

later than November 30, 1998.

Period to be reviewed

Antidumping Duty Proceedings

South Korea: Circular Welded Non-Alloy Steel Pipe A–580–809 ........................................................................................... 11/1/96–10/31/97

Hyundai Pipe Co., Ltd.

Korea Iron & Steel Co., Ltd.

SeAH Steel Corporation, Ltd.

Shinbo Steel Co., Ltd.

The People’s Republic of China: Fresh Garlic A–570–831 .................................................................................................... 11/1/96–10/31/97

Fook Huat Tong Kee Pte. Ltd.

Countervailing Duty Proceedings

None.

Suspension Agreements

Singapore: Certain Refrigeration Compressors C–559–001 ................................................................................................... 4/1/96–3/31/97

During any administrative review

covering all or part of a period falling

between the first and second or third

and fourth anniversary of the

publication of an antidumping duty

order under section 351.211 or a

determination under section 351.218(d)

(sunset review), the Secretary, if

requested by a domestic interested party

within 30 days of the date of publication

of the notice of initiation of the review,

will determine whether antidumping

duties have been absorbed by an

exporter or producer subject to the

review if the subject merchandise is

sold in the United States through an

importer that is affiliated with such

exporter or producer. The request must

include the name(s) of the exporter or

producer for which the inquiry is

requested.

For transition orders defined in

section 751(c)(6) of the Act, the

Secretary will apply paragraph (j)(1) of

this section to any administrative

review initiated in 1996 or 1998 (19 CFR

351.213(j)(1–2)).

Interested parties must submit

applications for disclosure under

administrative protective orders in

accordance with 19 CFR 353.34(b) and

355.34(b).

These initiations and this notice are

in accordance with section 751(a) of the

Tariff Act of 1930, as amended (19

U.S.C. 1675(a)), and 19 CFR

351.221(c)(1)(i).

Dated: December 17, 1997.

Richard W. Moreland,

Acting Deputy Assistant Secretary, Group II,

Import Administration.

[FR Doc. 97–33471 Filed 12–22–97; 8:45 am]

BILLING CODE 3510–DS–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

[I.D. 080897A]

Small Takes of Marine Mammals

Incidental to Specified Activities;

Seismic Retrofit of the Richmond-San

Rafael Bridge, San Francisco Bay, CA

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of issuance of an

incidental harassment authorization.

SUMMARY: In accordance with provisions

of the Marine Mammal Protection Act

(MMPA) as amended, notification is

hereby given that an Incidental

Harassment Authorization (IHA) to take

small numbers of Pacific harbor seals

and possibly California sea lions by

harassment incidental to seismic retrofit

construction of the Richmond-San

Rafael Bridge, San Francisco Bay, CA

(the Bridge) has been issued to the

California Department of Transportation

(Caltrans) for a period of 1 year.

DATES: This authorization is effective

from December 16, 1997, through

December 15, 1998.

ADDRESSES: The application,

authorization, and environmental

assessment (EA), and a list of references

used in this document are available by

writing to the following offices: Marine

Mammal Division, Office of Protected

Resources, NMFS, 1315 East-West

Highway, Silver Spring, MD 20910–

3225, or the Southwest Region, NMFS,

501 West Ocean Blvd., Suite 4200, Long

Beach, CA 90802, or by telephoning one

of the following contacts.

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead, Office of

Protected Resources, NMFS, (301) 713–

2055, or Irma Lagomarsino, Southwest

Regional Office, NMFS, (562) 980–4016.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) and (D) of the

MMPA (16 U.S.C. 1361 et seq.) directs

the Secretary of Commerce (Secretary)

to allow, upon request, the incidental,

but not intentional, taking 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 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,

and 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

provides 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. The MMPA defines

‘‘harassment’’ as: ≥...any act of pursuit,

torment, or annoyance which (a) has the

potential to injure a marine mammal or

marine mammal stock in the wild; or (b)

has the potential to disturb a marine
67046 Federal Register / Vol. 62, No. 246 / Tuesday, December 23, 1997 / Notices

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.

Subsection 101(a)(5)(D) provides 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 July 7, 1997, NMFS received an

application from Caltrans, requesting an

authorization for the possible

harassment of small numbers of Pacific

harbor seals (Phoca vitulina) and

possibly some California sea lions

(Zalophus californianus), incidental to

seismic retrofit construction of the

Bridge. Accordingly, NMFS published a

notice in the Federal Register on

September 3, 1997 (62 FR 46480),

requesting comments on NMFS’

proposal to authorize Caltrans, under

section 101(a)(5)(D) of the MMPA, to

take, by harassment, small numbers of

marine mammals incidental to seismic

retrofit construction of the Bridge.

The Bridge will be seismically

retrofitted to withstand a future severe

earthquake. Construction is scheduled

to begin in December 1997 and extend

through December 2001. A detailed

description of the work planned is

contained in Caltrans’ 1996 Final

Natural Environmental Study/Biological

Assessment for the Richmond-San

Rafael Bridge Seismic Retrofit Project.

Among other things, seismic retrofit

work will include excavation around

pier bases, hydro-jet cleaning,

installation of steel casings around the

piers with a crane, installation of micropiles, and installation of precast

concrete jackets. Foundation

construction will require approximately

2 months per pier, with construction

occurring on more than one pier at a

time. In addition to pier retrofit,

superstructure construction and tower

retrofit work will also be carried out.

The construction duration for the

seismic retrofit of foundation and

towers on Piers 52 through 57 will be

approximately 7 to 8 months. Because of

work restrictions and mitigation

measures, the seismic retrofit

construction in this area is expected to

be completed within two authorized

work periods.

As the seismic retrofit construction

between Piers 52 and 57 may potentially

result in disturbance of pinnipeds at

Castro Rocks, an MMPA authorization is

warranted.

Comments and responses

A notice of receipt of the application

and proposed authorization was

published on September 3, 1997 (62 FR

46480), and a 30-day public comment

period was provided on the application

and proposed authorization. In addition

a press release was issued on September

10, 1997, and a public notice was

published in a newspaper of general

circulation in the San Francisco Bay

area. During the comment period,

comments were received from the

Marine Mammal Commission (MMC),

Caltrans, and the California Law Project

(CLP). Information on the activity and

authorization request that are not

subject to reviewer comments can be

found in the proposed authorization

notice and is not repeated here.

Comments on MMPA Authorizations

Comment 1: CLP was of the opinion

that the purpose and intent of the IHA

provision in section 101(a)(5)(D) of the

MMPA is to allow incidental marine

mammal taking when the harassment

will be ‘‘short-term and non-lethal.’’

Because neither the Caltrans application

nor the EA made clear that the seismic

retrofit project would have ‘‘short-term

and non-lethal’’ impacts to harbor seals,

a section 101(a)(5)(D) authorization

under the MMPA would be

inappropriate. CLP notes that the project

would extend beyond the 1-year time

limit specified in section 101(a)(5)(D)

and that subsequent renewals would be

necessary. CLP notes that Congress

intended that projects of this length (up

to 5 consecutive years) be permitted

under the more protective provisions of

section 101(a)(5)(A).

Response: NMFS does not agree.

When implementing section

101(a)(5)(D) in 1994, the House of

Representatives noted: ‘‘It is not the

Committee’s intent to weaken any of the

existing standards which protect marine

mammals and their habitats from

incidental takes under this section.

However, the Committee recognizes that

the regulatory agencies must be afforded

some procedural flexibility in order to

streamline the review of authorizations

under this section.’’ (H. Rept. 103-439,

103rd Congress, 2nd Sess., pp. 29, 30.)

Provided the taking is not expected to

result in the serious injury or mortality

of marine mammals, a section

101(a)(5)(D) authorization is

appropriate. That issue is addressed

below.

The U.S. Congress did not intend to

limit incidental harassment

authorizations to activities that would

take place in a single year or less, only

that the authorization would be valid for

no more than 1 year. After that period,

the activity participants could reapply.

This interpretation of the statute is

supported by the statement ‘‘The

Committee notes that, in some

instances, a request will be made for an

authorization identical to one issued in

the previous year. In such

circumstances, the Committee expects

the Secretary to act expeditiously in

complying with the notice and comment

requirements.’’ (H. Rept. 103-439, 103rd

Congress, 2nd Sess., p. 29.)

Comment 2: CLP believes that without

more protective mitigation, injury or

mortality of harbor seals could occur,

and, therefore, the use of an IHA may

be inappropriate because no serious

injury or death would be authorized.

Response: NMFS disagrees that the

issuance of an IHA under section

101(a)(5)(D) is inappropriate for this

project. In the IHA, NMFS is requiring

Caltrans to expand several of its

mitigation measures to further decrease

the potential for serious injury or

mortality of harbor seals during

construction activities (see Comments

on Mitigation and Mitigation Measures).

Moreover, the monitoring and reporting

programs have been greatly expanded

(see Monitoring and Reporting sections).

NMFS expects the mitigation

requirements of the IHA to preclude

harbor seals from serious injury or

mortality and will result in the least

practicable impact to harbor seals from

construction activities. Comment 3: CLP

recommends that NMFS require that

Bridge retrofit construction be halted if

any ‘‘harmful disturbance’’ occurs

during the pupping or molting season.

Response: NMFS will not be requiring

Caltrans to stop work if certain

threshold seal disturbances are observed

because certain construction operations

cannot be stopped in progress without

jeopardizing the structural integrity of

the Bridge and NMFS does not expect

incidental harassment of harbor seals

from construction activities to have

more than a negligible impact on the

harbor seal population. Nevertheless, if

any unauthorized marine mammal

taking (serious injury or mortality)

occurs as a result of seismic retrofit

construction activities, Caltrans will be

subject to the penalties of the MMPA.

NMFS will, however, reevaluate the

appropriateness of the IHA before

Caltrans reapplies for a new IHA next

year, based on required reports (see

Reporting section).

Comment 4: CLP concludes that

harbor seals that inhabit San Francisco

Bay (SFB) are a ‘‘population stock’’

under the MMPA and believes NMFS
Federal Register / Vol. 62, No. 246 / Tuesday, December 23, 1997 / Notices 67047

should consider the impacts of the

retrofit construction relative to the SFB

population stock.

Response: NMFS disagrees that the

best available information indicates that

harbor seals that inhabit SFB are a

‘‘population stock’’ under the MMPA.

Studies have shown that adult harbor

seals in SFB have a high degree of site

fidelity as indicated by (1) high

occurrence of red pelaged seals in SFB;

(2) organochlorine containment levels

are higher in harbor seals that haul-out

in SFB; and (3) limited movement of

adult harbor seals tagged in SFB to

nearby coastal areas. Nevertheless, data

are not available that demonstrate that

harbor seal pups born at haul-out sites

in SFB return to breed and pup at the

same site where they were born. Thus,

at this time, scientists do not know

whether pups born in SFB show the

same degree of site fidelity as adults or

whether they utilize other haul-outs

either within SFB or in nearby coastal

areas when they mature. Studies of

adult harbor seals tagged in SFB

indicate that the level of movement to

nearby coastal areas (20 percent) (Kopec

and Harvey 1995, Harvey and Torok

1994) would be sufficient to preclude

isolation if those seals were breeding

with seals found along the coast

(Harvey, J., Moss Landing Marine

Laboratory, pers. commun., November

1997). Moreover, genetic studies have

not been conducted to determine

whether seals in SFB have unique

genetic variation or genotypes. In

contrast, NMFS has separated harbor

seals within inland waters of

Washington as a population stock under

the MMPA based on (1) extremely low

mixing with coastal harbor seals, (2)

pollutant loads, (3) fishery interactions,

(4) existence of unique haplotypes in

inland Washington harbor seals, and (5)

differences in mean pupping dates. The

best available information does not

demonstrate that harbor seals in SFB are

a unique biological population (Harvey,

J., pers. commun., 1997; Allen, S., NPS,

pers. commun., November 1997; Hanan,

D., CDFG, pers. commun., November

1997). For these reasons, NMFS does

not consider harbor seals in SFB to be

a population stock under the MMPA.

Under section 117 of the MMPA,

NMFS is required to prepare stock

assessment reports (SARs) for every

marine mammal stock that occurs in

U.S. waters. NMFS has convened two

expert working groups (NMFS and NonNMFS scientists/managers) to draft

guidelines for preparing SARs (Barlow

et al. 1995, Wade and Angliss 1997).

Furthermore, SARs are available for

public review and comment and are

reviewed by regional scientific review

groups (all non-NMFS scientists). Using

these guidelines and in consultation

with the Pacific Scientific Review

Group, NMFS published a SAR that

considers harbor seals that occur in

California as a separate population stock

(Barlow et al. 1995). This SAR reports

a population abundance estimate of

34,554 harbor seals. This stock of harbor

seals is not considered ‘‘depleted’’ or

‘‘strategic’’ under the MMPA or listed as

an endangered or threatened species

under the Endangered Species Act. For

these reasons, NMFS is considering the

impact of seismic retrofit construction

of the Bridge on the California harbor

seal stock.

Harbor Seal Concerns

Comment 5: CLP believes the Federal

Register notice’s statement ‘‘evidence to

date has not indicated that

anthropogenic disturbances have

resulted in increased mortality to harbor

seals’’ in 62 FR 46480 (September 3,

1997), is incorrect as several studies

document this. The Boles and Stewart

(1980) study merely describes behavior

patterns consistent with one found with

Bay harbor seals and does not support

a finding that human disturbance does

not result in serious harm or mortality.

Response: In retrospect, NMFS

believes the statement made was too

broad and it should reflect that, to date,

studies have not indicated that airborne

anthropogenic noise has resulted in

increased harbor seal mortality. NMFS

would be interested in specific harbor

seal studies that indicate otherwise. It

should be recognized that most of this

information is from studies on the

impact of noise from rocket launches

and sonic booms on harbor seals and sea

lions in the California Channel Islands

and, in the past, has been mostly

qualitative. Upcoming studies have been

redesigned to be more quantitative.

Comment 6: CLP states that there is

no evidence that seals will adapt to

construction, and harbor seals have

abandoned sites in SFB. Harbor seals

hauling-out in areas of frequent but nonthreatening disturbances show a

relatively higher tolerance for such

events when compared with more

isolated areas where disturbance is rare.

Observations of harbor seals at Castro

Rocks found that seals flush easily in

response to human disturbance.

Response: NMFS agrees that there is

no scientific evidence that demonstrates

harbor seals will acclimate to

disturbance from construction activities.

NMFS also believes that seals are likely

to acclimate to activities they perceive

as non-threatening. Although harbor

seal colonies have abandoned haul-out

sites in SFB, colonies also have

acclimated to various levels of human

activity. In particular, despite the

regular exposure to traffic noises from

the Bridge, vessel traffic from

commercial activities at the Chevron

Long Wharf, and vessel traffic from

recreational boating and commercial

shipping in the area, harbor seals

continue to haul-out, pup, breed, and

molt at Castro Rocks. For these reasons,

NMFS believes that harbor seals at

Castro Rocks may acclimate to certain

seismic retrofit construction activities if

they perceive these activities as nonthreatening.

Comment 7: CLP believes that seal

counts by Caltrans personnel during

June 1994/1996 misrepresent the

number of pups using Castro Rocks.

Response: Presentation of the seal

counts by Caltrans personnel during

June 1994 and 1996 was not intended to

establish the period in which pups are

born at Castro Rocks. The best available

information indicates that in SFB harbor

seal pups are first observed in midMarch, peak numbers of pups are

observed in early May, and by the first

week of June, the majority of the pups

are weaned (Kopec, D., Romberg

Tiburon Centers, pers. commun.,

November 1997; (i.e., Kopec 1997)).

Comment 8: The statement in the

Federal Register notice (62 FR 46480,

September 3, 1997) that ‘‘haul-out

groups are temporary, unstable

aggregations’’ does not accurately

represent the current knowledge of

harbor seal population dynamics. Seals

in SFB show strong site fidelity.

Response: The statement is from

Sullivan (1982) and is not refuted by

Kopec and Harvey (1995). However,

because harbor seals show strong site

fidelity (Kopec and Harvey 1995,

Stewart and Yochem 1994), the

statement may be misleading.

Comment 9: The finding of Bowles

and Stewart (1980) referenced in the

Federal Register notice (62 FR 46480)

that ‘‘harbor seals tendency to

flee...decreased during the pupping

season,’’ does not support the claim that

young seals are protected from ‘‘ ...the

startle response of the herd.’’

Response: Reviewing the referenced

source, NMFS has determined that there

is no evidence that harbor seals are less

sensitive to disturbance during the

pupping season than at other times.

This agrees with Kopec’s observations

(Kopec 1997). See Mitigation Measures.

Comments on Mitigation Measures

Comment 10: CLP had several

concerns regarding NMFS’ conclusions

on the impact of disturbance on molting

harbor seals and the appropriateness of

Caltrans’ proposed work closure period
67048 Federal Register / Vol. 62, No. 246 / Tuesday, December 23, 1997 / Notices

(February 1–June 30). For example, CLP

believes there is no scientific evidence

to support the conclusion in the Federal

Register notice (62 FR 46480, September

3, 1997) that harbor seals have evolved

adaptive mechanisms to deal with

natural disturbance from predators and

seabirds during the molt. CLP states this

is supported by the behavior of harbor

seals to haul out in very isolated

locations precisely to avoid disturbance,

and it is not factual to suggest that

seabirds cause seals to flush into the

water. Existing as they do at the top of

the food web, CLP states, harbor seals

using Castro Rocks have no natural

predators. CLP states that the very

sensitive molting season of seals using

Castro Rocks extends to at least early or

mid-August. Caltrans’ application and

the EA failed to adequately assess the

project’s impacts to molting seals during

July and August. For these reasons, CLP

recommended that the Closure Period

be extended to include the entire molt.

Response: The process of molting is

an important and energetically

demanding part of a seal’s annual cycle

(Leatherwood et al. 1992). While on

land, harbor seals bask in the sun to

warm their body surface and promote

flow of blood to the skin which is

essential for new hair growth. While

little is known about the effect of

disturbance on molting harbor seals,

energetic costs are probably higher for

seals that spend more time in the water

during the molt since a seal’s metabolic

rate increases in the water (DeLong, R.,

NMFS, pers. commun., November

1997). Nevertheless, NMFS believes that

it is likely that harbor seals have

evolved adaptive mechanisms to deal

with exposure to the water during the

molt for the following reasons. First, on

some harbor seal haul-outs during the

molting season seals must enter the

water once or even twice a day due to

tidal fluctuations limiting access to the

haul-out. Second, since harbor seals lose

hair in patches during the molt, they are

never completely hairless and would

not be as vulnerable to heat loss in the

water during this period compared to

other seals (e.g., elephant seals) that lose

their all their hair at one time. Finally,

due to the large amount of time hauledout harbor seals allocate to scanning

their environment, it is likely that

terrestrial predation was an important

selection pressure during the early

evolution of harbor seal behavior (Da

Silva and Terhune 1988) and could be

the reason why hauled-out harbor seals

appear to be so sensitive to disturbance.

Disturbance would not have been

isolated to only non-molting seasons

and thus, harbor seals most likely

evolved mechanisms to tolerate

exposure to water during the molt.

Some harbor seal colonies in California

continue to be subject to disturbance

from wildlife such as seabirds (Hanan,

D. pers. commun., 1997) and human

activities. If the levels of harbor seal

disturbance during the molt are

relatively high, seals are likely to utilize

other local haul-out sites during the

molt (DeLong, R., pers. commun. 1997;

Hanan, D., pers. commun. 1997; Harvey,

J., pers. commun. 1997). Hanan (1996)

found that although harbor seals tagged

at an isolated southern California haulout tended to exhibit site-fidelity during

the molt, some seals were observed

molting at other nearby haul-outs.

The primary objectives of the Kopec

and Harvey (1995) study was to

determine the population dynamic and

movements, investigate the

concentration of pollutants, and assess

the health of harbor seals within and

near SFB. Although the number of

molting seals was recorded during most

field observations, molt observations

were incidental to Kopec and Harvey’s

(1995) primary census counts (Kopec

1997). Thus, although Kopec and

Harvey (1995) refer to the

‘‘reproductive/molting’’ period at Castro

Rocks as occurring between March-July,

no data are presented to support this

conclusion. Moreover, they report that

‘‘In San Francisco Bay, pupping occurs

from March to May, and molt in June.

This corresponds with the greatest

number of harbor seals counted in

* * *Castro Rocks.’’ For these reasons,

NMFS concluded that the proposed

Closure Period (February 1-June 30)

would encompass all of the pupping

and breeding season, and nearly the

entire harbor seal molting season at

Castro Rocks.

Recently available unpublished

information indicates that the peak

number of actively molting harbor seals

occurs in early July at Castro Rocks

(Kopec 1997), which coincides with the

peak of the molt for harbor seals near

and within SFB (S. Allen, pers.

commun., 1997). By early August, only

five to seven percent of the seals are

actively molting at Castro Rocks (Kopec

1997).

Based on new information on harbor

seals molting at Castro Rocks, NMFS has

expanded the Closure Period to include

the entire month of July (see Mitigation

Measures). The modified Closure Period

(February 15 - July 31) is designed to

encompass the entire harbor seal

pupping and breeding seasons and

nearly the entire molting season at

Castro Rocks (see Mitigation Measures).

This represents a period of five and onehalf months in which no work may be

conducted on the substructure, towers,

or superstructure between Piers 52 and

57, inclusive (please see related

comment 11 below). Any harbor seals

that are still molting when work begins

after the Closure Period are likely to

utilize other SFB haul-out sites if they

are substantially disturbed by

construction activities in the area

(DeLong, R., pers. commun., 1997;

Hanan, D., pers. commun. 1997; Harvey,

J., pers. commun. 1997). Expanding the

Closure Period further would result in

another season of work near Castro

Rocks and in prolonged disturbance to

seals utilizing Castro Rocks. The Closure

Period could be expanded during the

second year of the project if monitoring

results indicate that impacts may be

greater than negligible.

Comment 11: CLP believes that the

proposed seasonal restrictions are not

sufficient to protect seals during the

earlier pupping and nursing season

because work will be allowed to

continue on the superstructure and

could negatively impact seals during the

spring pupping and summer molting

seasons. Furthermore, CLP notes that

the IHA notice contradicts the EA’s

superstructure seasonal closure period.

For these reasons, CLP recommends that

the work closure area include a

prohibition on superstructure work

between Piers 52 and 57.

Response: NMFS agrees and, as

mentioned in comment 10 above, has

modified the Closure Period to include

all retrofit construction activities on the

substructure (e.g., piers), towers, and

superstructure between Pier’s 52 and 57,

inclusive (see Mitigation Measures).

Since the Closure Period has been

expanded to include nearly the entire

molting season (see above), NMFS has

modified the Closure Period to begin on

February 15, instead of February 1. In

SFB, harbor seal pups are first observed

in mid-March, peak numbers of pups

are observed in early May, and, by the

first week of June, all pups are weaned

(Kopec and Harvey 1995). Thus, the

Closure Period will include the entire

pupping season at Castro Rocks and a

substantial pre-pupping period when

females are moving into pupping areas.

As mentioned previously, imposing a 6-

month Work Closure Period (i.e.,

February 1–July 31) would likely result

in another season of work near Castro

Rocks and in prolonged disturbance to

seals at Castro Rocks.

Comment 12: The CLP believes that

the size of Caltrans’ proposed exclusion

zone around Castro Rocks is arbitrary

and inconsistent with both the existing

scientific literature or reported reactions

and actual observations of disturbance

behavior at Castro Rocks. For these
Federal Register / Vol. 62, No. 246 / Tuesday, December 23, 1997 / Notices 67049

reasons, CLP recommends that the

exclusion zone be expanded to a

minimum of 200 m (656 ft) on all sides

of Castro Rocks and that the zone be

expanded if monitoring indicates seals

are adversely effected by boats traveling

outside the zone boundaries.

Response: The purpose of the

exclusion zone is to establish an area

around Castro Rocks in which retrofit

construction activity will be prohibited

during the pupping, breeding, and the

majority of the molting season (the

Work Closure Period) to minimize the

impacts to seals during the sensitive

periods of their life cycle. Caltrans

originally proposed that the exclusion

zone be located between the Bridge

center line, between Piers 52 and 57,

and extend to 200 ft (61 m) south of the

most southwestern portion of Castro

Rocks.

Reactions of harbor seals to

disturbance depends upon the distance

of the activity to the seal, type of the

activity (e.g., boat traffic, aircraft

overflights, loud sounds, etc.), phase of

seal life cycle (e.g., pupping season,

non-pupping season), and the history of

disturbance the colony has previously

experienced. Depending on the activity,

a wide range of seal ‘‘reaction

distances’’ have been reported in the

literature (e.g., 30–1,800 m (98–5900 ft)).

In an adjacent SFB estuary, Bolinas

Lagoon, 81 percent of disturbances

(boats, hikers, dogs) were within 100

and 200 m (328 and 656 ft) of a harbor

seal haul-out (Swift and Morgan 1993).

Although seals at Castro Rocks have

habituated to background traffic noise

from the Bridge, they respond to

unusual noises, such as hammering,

truck horns, back-up signal beeps, work

boats, and other human activity on the

Bridge (Kopec, D., letter to CLP, dated

October 3, 1997).

NMFS agrees that the exclusion zone

should be expanded to further minimize

the impact of seismic retrofit

construction activities during the

Closure Period. For this reason, NMFS

is requiring Caltrans to greatly expand

the northern boundary of the exclusion

zone. For example, the northern

boundary has been extended from the

Bridge center line to 250 ft (76.2 m)

north of the most northern tip of Castro

Rocks (approximately 200 ft (61 m))

north of the Bridge center line). An

expansion of this boundary further

north is impractical due to the need for

a safe navigation corridor north of the

Bridge for work vessel access to

construction staging areas near the east

end of the Bridge. The southern

boundary of the exclusion zone will be

250 ft (76.2 m) south of the southern tip

of Castro Rocks. Due to the location of

this boundary relative to the Bridge (600

ft/183 m), it is unlikely that the

unrestricted area further south would be

practicable for use during construction

(e.g., corridor to a staging area on the

south side of the Bridge). Any further

expansion of the southern boundary

would encroach onto waters outside

Caltran’s control (e.g., right-of-way) and

could affect Chevron’s oil pier

operations further south. The eastern

boundary will be 300 ft (91.4 m) east of

the eastern tip of Castro Rocks, and the

western boundary will be 300 ft (91.4 m)

west of the western tip of Castro Rocks.

Similarly, any further expansion of

these boundaries would encroach onto

waters outside Caltrans’ control.

Caltrans will minimize vessel traffic in

the exclusion zone when conducting

construction activities during the Work

Period. For these reasons, NMFS

believes these boundaries will have the

least practicable impact on the

California harbor seal population.

Comment 13: Caltrans recommends

that the prohibition on pile installation

and the limitation on maximum noise

levels to 86 DBA re 20 uPa at 50 m

between 7 p.m. and 7 a.m. be modified

to the hours between 9 p.m. and 7 a.m..

Caltrans states that this is necessary to

allow for the Bridge retrofit contractor to

use two working shifts instead of one

shift. Caltrans also recommends

removing the 24-hr construction noise

limitation near Castro Rocks during the

pupping/molting restriction period

because no work will be conducted

between Piers 52 and 57, inclusive on

the substructure, towers, or

superstructure during this period.

Response: NMFS agrees. Although the

night time restriction for pile

installation and maximum noise levels

was originally developed by Caltrans to

minimize human residential noise

disturbance, NMFS is also requiring

night time restrictions because it

believes that it could protect seals at

Castro Rocks if they change their

hauling-out patterns from daytime to

night time. NMFS has modified the time

period for this requirement from 7 p.m.-

7 a.m. to 9 p.m.-7 a.m. because

restricting this mitigation measure

further would allow only one work

shift, would likely result in another

season of work near Castro Rocks, and

thus, would result in prolonged

disturbance to seals utilizing Castro

Rocks (see Mitigation Measures). NMFS

also agrees that the 24-hr. noise

limitation near Castro Rocks is no longer

necessary due to all work ceasing on the

substructure, towers, and superstructure

on Pier’s 52–57, inclusive, during the

pupping, breeding, and majority of the

molting season.

Comment 14: CLP recommends that

NMFS require Caltrans to conduct

certain offsite mitigation that will

enhance the protection of alternative

haul-out sites, many of which are under

pressure from human disturbance. Such

mitigation might take the form of

education signs or posters at haul-outs

and other locations to reduce potential

for human disturbance.

Response: NMFS believes that the

mitigation measures imposed under the

IHA will effectively mitigate the activity

to the lowest level practicable and still

allow the project to continue near to

schedule. As a result, additional off-site

mitigation measures are unwarranted.

NMFS believes that mitigation banking

is appropriate only under those

circumstances when the impact cannot

be mitigated onsite.

Monitoring and Reporting Concerns

Comment 15: CLP believes that the

proposed monitoring plan is inadequate

and should be replaced by a

comprehensive, quantitative monitoring

program. CLP recommends that the IHA

establish upper limits of disturbance

beyond which the source construction

activity is curtailed. CLP believes the

IHA should require continuous site

monitoring and immediate reporting

that, when triggered, will temporarily

halt construction activity near Castro

Rocks and will impose additional

mitigation.

Response: NMFS has significantly

expanded the requirements of the

monitoring program that must be

implemented by Caltrans under its IHA

(see Monitoring). For example, the

monitoring program includes preconstruction monitoring of Castro Rocks

(e.g., baseline information) and frequent

monitoring each week within the Work

Period to document the effects of

construction activities on harbor seals at

Castro Rocks. The monitoring of at least

one alternative haul-out site in SFB is

also required to evaluate whether harbor

seals at Castro Rocks could be hauling

out at other sites in SFB as a result of

construction. Monitoring will also occur

during the Closure Period to evaluate

whether construction activities are

disturbing the seals during their

pupping, breeding and molting periods.

Moreover, night time censussing of

harbor seals will occur during the

Closure Period and Work Period at

Castro Rocks to evaluate whether harbor

seal haul-out behavior may be affected

by construction activities during these

periods. NMFS believes this improved

monitoring program will be sufficient to

collect appropriate data to adequately

evaluate the biological impact of
67050 Federal Register / Vol. 62, No. 246 / Tuesday, December 23, 1997 / Notices

construction activities on Castro Rocks

harbor seals.

Comment 16: CLP suggested that

enhanced protection and monitoring of

other, limited, haul-out sites in SFB are

critical to monitoring measures and

must be implemented under National

Environmental Policy Act (NEPA) and

MMPA.

Response: In the IHA, NMFS is

requiring Caltrans to simultaneously

monitor at least one other harbor seal

haul-out site in SFB to document

potential changes in harbor seal

population dynamics in SFB from

seismic retrofit construction disturbance

of seals at Castro Rocks.

NEPA Concerns

Comment 17: CLP states that NMFS

must comply with NEPA, which is the

statute requires the preparation of an

environmental impact statement (EIS)

where a Federal project may have a

significant adverse impact on the

environment.

Response: NMFS is issuing the IHA in

compliance with NEPA. After assessing

the effects of the Bridge project

(undertaken with the mitigation

measures) on marine mammals in an

EA, NMFS found that issuance of the

IHA will not have a significant effect on

the human environment. Accordingly,

an EIS was not prepared.

For the Bridge project as a whole, the

lead Federal agency is the Federal

Highway Administration (FHA). On

August 15, 1997, the FHA determined

that the retrofit project is categorically

excluded from NEPA. In that

determination, the FHA stated that the

retrofit project does not have a

significant effect on the human

environment.

In addition, Caltrans determined that

the retrofit project is statutorily exempt

from the California Environmental

Quality Act (CEQA) under section 180.2

of the Streets and Highways Code and

section 2180(b)(4) of the Public

Resources Code.

Comment 18: CLP states that CLP

believes that an EIS must be prepared,

unless the project is ‘‘fully mitigated,’’

to avoid ‘‘devastating impacts’’ (e.g.,

abandonment) on the future viability of

Castro Rocks as a harbor seal haul-out

site and adversely affecting the

population stock that relies on Castro

Rocks.

Response: NMFS does not agree that

abandonment of Castro Rocks as a haulout site is likely from the seismic retrofit

construction of the Bridge, provided

Caltrans undertakes the mitigation

measures required in the IHA. NMFS

expects that the short-term impact of

construction to have a temporary modification in behavior by harbor seals at

Castro Rocks and possibly by some

California sea lions. At worst,

disturbance from construction activities

is expected to cause the harbor seals to

haul-out at night at Castro Rocks

(Kopec, D., letter to CLP, dated October

3, 1997), or to utilize alternative haulout sites in the SFB for a short period

(Harvey, J., 1997, pers. commun.).

Therefore, NMFS expects the impacts

from the seismic retrofit construction of

the Bridge to have no more than a

negligible impact on the California

harbor seal population and does not

expect harbor seals to permanently

abandon Castro Rocks as a rookery or

haul-out. With the mitigation measures

NMFS is requiring, the Bridge project is

expected to result in minimal

disturbance to harbor seals at Castro

Rocks.

Mitigation Measures

To limit incidental harassment to the

lowest practicable level, NMFS will

require Caltrans to implement the

following mitigation measures. First,

Caltrans must cease seismic retrofit

construction work from February 15 to

July 31 on the Bridge substructure,

towers, and superstructure between

Pier’s 52 and 57, inclusive (Closure

Period). Seismic retrofit work may occur

from August 1 to February 14 on the

Bridge substructure, towers, and

superstructure between Pier’s 52 and 57,

inclusive (Work Period). Second, no

water craft associated with construction

activities will be deployed during the

year within the ‘‘exclusion zone’’ except

when construction equipment is

required for seismic retrofit construction

between Piers 52 and 57, inclusive, and

within the Work Period. Vessel traffic

will be minimized in the exclusion zone

when construction activities are

occurring during the Work Period. The

boundary of the exclusion zone is

rectangular in shape (1700 ft by 800 ft

(518.2 m by 244 m)) and completely

encloses Castro Rocks and Pier’s 52-57,

inclusive. The northern boundary of

exclusion zone will be located 250 ft

(76.2 m) from the most northern tip of

Castro Rocks, and the southern

boundary will be located 250 ft (76.2 m)

from the most southern tip of Castro

Rocks. The eastern boundary will be

located 300 ft (91.4 m) from the most

eastern tip of Castro Rocks, and the

western boundary will be located 300 ft

(91.4 m) from the most western tip of

Castro Rocks. This exclusion zone will

be restricted as a controlled access area

and will be marked off with buoys and

warning signs for the entire year. Lastly,

between 9 p.m. and 7 a.m., no piles may

be installed on the Bridge, and

construction noise may not exceed 86

DBA re 20 uPa at 50 ft (15 m).

Summary of Monitoring

NMFS will require Caltrans to

monitor the impact of seismic retrofit

construction activities on harbor seals at

Castro Rocks. Monitoring will be

conducted by one or more NMFSapproved monitors. Caltrans will

monitor at least one additional harbor

seal haul-out within SFB to evaluate

whether harbor seals use alternative

hauling-out areas as a result of seismic

retrofit disturbance at Castro Rocks.

The monitoring protocol will be

divided into the Work Period Phase

(August 1 - February 14) and the Closure

Period Phase (February 15 - July 31).

During the Work Period Phase and

Closure Period Phase, the monitor(s)

will conduct observations of seal

behavior at least 3 days/week for

approximately one tidal cycle each day

at Castro Rocks. The following data will

be recorded: (1) Number of seals on site;

(2) date; (3) time; (4) tidal height; (5)

number of adults, subadults, and pups;

(6) number of individuals with red

pelage; (7) number of females and

males; (8) number of molting seals; and

(9) details of any observed disturbances.

Concurrently, the monitor(s) will record

general construction activity, location,

duration, and noise levels. At least 2

nights/week, the monitor will conduct a

harbor seal census after midnight at

Castro Rocks. In addition, during the

Work Period Phase and prior to any

construction between Pier’s 52 and 57,

inclusive, the monitor(s) will conduct

baseline observations of seal behavior

once a day for a period of five

consecutive days immediately before

the initiation of construction in the area

to establish pre-construction behavioral

patterns. During the Work Period and

Closure Period Phases, the monitor(s)

will conduct observations of seal

behavior at the alternative San

Francisco Bay harbor seal haul-out at

least 3 days/week (Work Period) and 2

days/week (Closure Period), during a

low tide.

In addition, NMFS proposes to

require under a second authorization

that, immediately following the

completion of the seismic retrofit

construction of the Bridge, the

monitor(s) will conduct observations of

seal behavior at least 5 days/week for

approximately 1 tidal cycle (high tide to

high tide) each day, for one week/month

during the months of April, July,

October, and January. At least 2 nights/

week, the monitor will conduct an

additional harbor seal census after

midnight.
Federal Register / Vol. 62, No. 246 / Tuesday, December 23, 1997 / Notices 67051

Reporting

Caltrans will provide weekly reports

to the Southwest Regional Administer,

NMFS, including a summary of the

previous week’s monitoring activities

and an estimate of the number of harbor

seals that may have been disturbed as a

result of seismic retrofit construction

activities. These reports will provide

dates, time, tidal height, maximum

number of harbor seals ashore, number

of adults and sub-adults, number of

females/males, number of redcoats, and

any observed disturbances. A

description of retrofit activities at the

time of observation and any sound

pressure level measurements made at

the haulout will also be provided.

A draft interim report must be

submitted to the Southwest Regional

Administrator on August 1, 1998. A

draft final report must be submitted to

the Southwest Regional Administrator

within 90 days after the expiration of

Caltrans Incidental Harassment

Authorization. A final report must be

submitted to the Southwest Regional

Administrator within 30 days after

receiving comments from the Regional

Administrator on the draft final report.

NEPA

NMFS has prepared an EA that

concludes that the impacts of Caltrans’

seismic retrofit construction of the

Bridge will not have a significant impact

on the human environment. A copy of

the EA is available upon request (see

ADDRESSES).

Conclusions

NMFS has determined that the shortterm impact of the seismic retrofit

construction of the Bridge, as described

above, will result, at worst, in the

temporary modification in behavior by

harbor seals and possibly by some

California sea lions. While behavioral

modifications, including temporarily

vacating the haul-out, may be made by

these species to avoid the resultant

visual and acoustic disturbance, this

action is expected to have a negligible

impact on the animals. In addition, no

take by injury and/or death is

anticipated, and harassment takes will

be at the lowest level practicable due to

incorporation of the mitigation

measures mentioned above.

Since NMFS is assured that the taking

will not result in more than the

incidental harassment (as defined by the

MMPA) of small numbers of Pacific

harbor seals and possibly of California

sea lions; would not have an

unmitigatable adverse impact on the

availability of these stocks for

subsistence uses; and would result in

the least practicable impact on the

stocks, NMFS has determined that the

requirements of section 101(a)(5)(D)

have been met and the authorization can

be issued. For the above reasons, NMFS

has issued an IHA for a 1-year period

beginning on the date noted above (see

EFFECTIVE DATES) for the incidental

harassment of harbor seals and

California sea lions by the seismic

retrofit of the Richmond-San Rafael

Bridge, San Francisco Bay, California,

provided the above mentioned

monitoring and reporting requirements

are incorporated.

Dated: December 16, 1997.

Hilda Diaz-Soltero,

Director, Office of Protected Resources,

National Marine Fisheries Service.

[FR Doc. 97–33387 Filed 12–22–97; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

[I.D. 121797A]

Atlantic Coastal Fisheries Cooperative

Management Act; Meeting

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Coordination meeting.

SUMMARY: NMFS and the U.S. Fish and

Wildlife Service (USFWS) will hold a

joint meeting to discuss coordination of

activities that support Atlantic States

Marine Fisheries Commission coastal

fisheries management plans under the

Atlantic Coastal Fisheries Cooperative

Management Act (Pub. L. 103–206) and

the Atlantic Striped Bass Conservation

Act (Pub. L. 102–103).

DATES: The meeting will convene on

Thursday, January 15, 1998, at 10:00

a.m. and will adjourn at approximately

3:00 p.m. The meeting is open to the

public.

ADDRESSES: National Marine Fisheries

Service, 1315 East-West Highway, Silver

Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

Anne Lange, Intergovernmental and

Recreational Fisheries, NMFS 8484

Georgia Avenue, Silver Spring, MD

20910. Telephone: (301) 427–2014.

SUPPLEMENTARY INFORMATION: NMFSUSFWS hold semi-annual coordination

meetings established under a

Memorandum of Understanding to

develop and implement a program to

support interstate fishery management

efforts associated with the Atlantic

Coastal Fisheries Cooperative

Management Act. The main agenda

items for this meeting are discussion of

the 1996–1997 Workplan; an update on

implementation of the Atlantic Coast

Cooperative Statistics Program; status of

cooperative coastal/citizen tagging

efforts; distribution of FY1998 Atlantic

Coastal Act funds; a 1998 striped bass

workshop; Striped Bass Act

reauthorization; and ASMFC Fishery

Management Plan work for 1998.

Special Accommodations

This meeting is physically accessible

to people with disabilities. Requests for

sign language interpretation or other

auxiliary aids should be directed to

Anne Lange (see FOR FURTHER

INFORMATION CONTACT) at least 7 days

prior to the meeting date.

Dated: December 17, 1997.

Richard Schaefer,

Chief, Staff Office for Intergovernmental and

Recreational Fisheries, National Marine

Fisheries Service.

[FR Doc. 97–33473 Filed 12–22–97; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

[I.D. 121597B]

Permits; Foreign Fishing

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of receipt of foreign

fishing applications.

SUMMARY: NMFS publishes for public

review and comment summaries of

applications submitted by the

Government of Estonia and the

Government of Lithuania requesting

authorization to conduct fishing

operations in the U.S. Exclusive

Economic Zone (EEZ) in 1998 under

provisions of the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act).

ADDRESSES: Comments may be

submitted to NMFS, Office of

Sustainable Fisheries, International

Fisheries Division, 1315 East-West

Highway, Silver Spring, MD 20910; and/

or to the Regional Fishery Management

Councils listed below:

Paul J. Howard, Executive Director,

New England Fishery Management

Council, 5 Broadway, Saugus, MA

01906, (617) 231–0422;