Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Notices 67951 

designated certain lands and waters of 

the St. Louis River freshwater estuary in 

Wisconsin as the Lake Superior 

National Estuarine Research Reserve. 

On October 19, 2010, Under Secretary 

of Commerce for Oceans and 

Atmosphere Dr. Jane Lubchenco signed 

a record of decision pursuant to the 

National Environmental Policy Act and 

a findings of designation for the Lake 

Superior National Estuarine Research 

Reserve in Wisconsin pursuant to 

Section 315 of the Coastal Zone 

Management Act of 1972, as amended, 

16 U.S.C. Section 1461, and its 

implementing regulations at 15 CFR Part 

921. The Reserve duly received 

certification from the State of Wisconsin 

Coastal Program that Reserve 

designation is consistent to the 

maximum extent practicable with its 

program. A copy of the official Record 

of Decision is available for public 

review from NOAA’s Office of Ocean 

and Coastal Resource Management at 

the address below. 

FOR FURTHER INFORMATION CONTACT: 

Laurie McGilvray (301) 713–3155 x158, 

Estuarine Reserves Division, Office of 

Ocean and Coastal Resource 

Management, National Ocean Service, 

NOAA, 1305 East West Highway, N/ 

ORM5, Silver Spring, MD 20910. A copy 

of the Record of Decision for each 

Reserve is available upon request. 

Federal Domestic Assistance Catalog Number 

11.420 (Coastal Zone Management) Research 

Reserves. 

Dated: October 22, 2010. 

Donna Wieting, 

Director, Office of Ocean and Coastal 

Resource Management. 

[FR Doc. 2010–27878 Filed 11–3–10; 8:45 am] 

BILLING CODE 3510–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RIN 0648–XZ78] 

Takes of Marine Mammals Incidental to 

Specified Activities; Piling and 

Structure Removal in Woodard Bay 

Natural Resources Conservation Area, 

Washington 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of incidental 

harassment authorization. 

SUMMARY: In accordance with 

regulations implementing the Marine 

Mammal Protection Act (MMPA), as 

amended, notification is hereby given 

that an Incidental Harassment 

Authorization (IHA) to take marine 

mammals, by harassment, incidental to 

derelict creosote piling and structure 

removal within the Woodard Bay 

Natural Resources Conservation Area 

(NRCA) has been issued to the 

Washington State Department of Natural 

Resources (DNR). 

DATES: This authorization is effective 

from November 1, 2010–February 28, 

2011. 

ADDRESSES: A copy of the application, 

IHA, and a list of references used in this 

document may be obtained by writing to 

P. Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

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

20910–3225, by telephoning the contact 

listed here, or visiting NMFS Web site 

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

permits/incidental.htm#applications. 

FOR FURTHER INFORMATION CONTACT: Ben 

Laws, Office of Protected Resources, 

NMFS, (301) 713–2289. 

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 United States 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 authorizations 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 

On June 9, 2010, NMFS received an 

application from the WA DNR 

requesting authorization to take, by 

harassment, small numbers of marine 

mammals incidental to derelict creosote 

piling and structure removal associated 

with a habitat restoration project within 

the Woodard Bay NRCA, Washington. 

The specified activity includes removal 

of approximately 615 timber pilings and 

a trestle located in Woodard Bay and a 

portion of pier superstructure located at 

the mouth of Chapman Bay. Pilings will 

be removed by vibratory hammer 

extraction methods and structures will 

be removed via cable lifting. In addition, 

approximately 25 nest boxes for purple 

martins will be relocated from removed 

pilings to pilings that are retained for 

seal habitat and buffer, using a small 

boat if necessary and will require a 

battery powered drill. 

Harbor seals have been utilizing the 

remnant log boom structures at 

Woodard Bay NRCA as haul-out habitat 

for resting, pupping and molting for 

more than 30 years. These booms are 

situated among the piles and structure 

planned for removal. The WA DNR 

anticipates harbor seals will flush into 

the water upon crew arrival and onset 

of pile and structure removal activities; 

hence, harbor seals may be harassed 

during pile removal activities. Since the 

activity has the potential to take marine 

mammals, a marine mammal take 

authorization under the MMPA is 

warranted. 

Description of the Specified Activity 

The Woodard Bay NRCA, located 

within Henderson Inlet in southern 

Puget Sound, was designated by the 

Washington State Legislature in 1987 to 


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protect a large, intact complex of 

nearshore habitats and related biological 

communities, and to provide 

opportunities for low-impact public use 

and environmental education for the 

people of Washington. The site includes 

the former Weyerhaeuser South Bay Log 

Dump, which operated from the 1920s 

until the 1980s. The remnant structures 

from the log dump, including several 

hundred creosoted pilings, and a trestle 

and pier, continue to negatively impact 

nearshore ecosystems protected by the 

conservation area. Therefore, the DNR 

will remove these dilapidated structures 

to enhance the processes, functions, and 

structures of the nearshore ecosystems. 

A few of the remnant log booms from 

dumping operations have supported a 

healthy population of harbor seals for 

more than 30 years by providing 

haulout habitat. However, seals 

concentrate themselves and primarily 

haul out at only two locations within 

the NRCA (see Figure 4 in application). 

Approximately 615 (average 12 inch 

diameter) pilings will be removed near 

but not directly adjacent to haulouts. An 

average of 30 pilings per day will be 

removed via vibratory hammer 

extraction methods. Operations will 

begin on the pilings and structures that 

are furthest from the seal haul-out so 

that there is an opportunity for the seals 

to adjust to the presence of the 

contractors and their equipment. In 

addition, no pilings within 30 yards (27 

m) of booms used as seal haulout habitat 

will be removed. The DNR estimates it 

will take approximately 1 minute to 

vibrate the piling free from the 

substrate, after which a crane will be 

used to lift the pile out of the water. 

Therefore, the vibratory hammer will 

operate for only 30 intermittent minutes 

daily. Vibratory extraction operations 

will occur for approximately 21 days 

over the 4-month work window 

(November 1 and February 28). Other 

work days will be spent removing 

pilings associated with the trestle, 

which is over 850 m from the closest 

haulout, and pier superstructure, which 

does not involve vibratory extraction. A 

complete description of the specified 

activity can be found in the proposed 

IHA notice for this action (75 FR 48941; 

August 12, 2010). 

Approximately 25 purple martin nest 

boxes will be relocated from the 

removed piles to the pilings that 

support or surround the haul-out area. 

This activity will only require a battery 

powered drill, is expected to take 2 

days, and could also result in flushing 

the seals from the haulout. Crew will be 

required to complete this activity during 

the days when they are already working 

within 100 yards (91 m) of the haulout, 

possibly using a separate boat, so that 

no additional work days near the 

haulout are necessary. Presence of crew 

relocating nest boxes may result in 

behavioral harassment of seals. 

However, because this will be 

completed in tandem with pile removal, 

no substantial additional harassment is 

anticipated. 

Comments and Responses 

A notice of receipt and request for 

public comment on the Federal Register 

notice of proposed authorization was 

published on August 12, 2010 (75 FR 

48941). During the 30-day public 

comment period, NMFS received 

comments from the Marine Mammal 

Commission (Commission) on the 

proposed IHA. No comments were 

received by any other members of the 

public. 

Comment 1: The Commission 

recommended that NMFS require that 

the applicant provide consistent 

monitoring beginning 30 minutes before 

all daily activities are initiated and 

ending 30 minute after all daily 

activities cease. 

Response: NMFS does not agree that 

monitoring need be conducted at all 

times during this low-level activity as 

there is no potential serious injury or 

mortality and the probability of an 

animal being physically injured from 

the equipment is extremely low if not 

discountable. In addition, no other 

marine mammal species are present 

within the action area, and are therefore 

not likely to be affected by DNR’s 

activities. Marine mammal monitoring 

will be required at the start of the 

project, twice a week when pile removal 

is occurring within 100 yards of the 

haul out area, for two days when 

activities move to a new location within 

the NRCA, during five of the days of 

work on the Chapman Bay Pier, and for 

at least six other days during the 40 day 

work period to be decided when the 

project schedule is provided by the 

contractor. Similar to scientific research 

studies, when correcting for effort, the 

DNR and NMFS should be able to 

adequately determine the number of 

animals taken and impacts of the project 

on marine mammals based on the 

monitoring plan. Should extreme 

reactions of seals occur (e.g., 

abandonment of the haulout) at any 

time during the project, DNR will stop 

removal activities and consult with 

NMFS. However, as described in the 

proposed IHA notice, based on previous 

scientific disturbance studies at NRCA, 

extreme reactions are not anticipated. 

Comment 2: The Commission 

recommended that NMFS require the 

applicant to measure sound pressure 

levels associated with vibratory 

extraction to ensure source levels do not 

have the potential to cause injury. 

Response: There are no known 

acoustic data available on source levels 

for timber pile extraction using a 

vibratory hammer. Based on discussion 

later in this document (see Effects on 

Marine Mammals), NMFS is confident 

that sound produced by the vibratory 

extraction of derelict timber piles will 

not approach 190 dB re: 1 microPa 

(rms), the threshold for Level A 

(injurious) harassment of pinnipeds. As 

such, NMFS is not requiring a sound 

verification study be conducted. 

Comment 3: The Commission 

recommended that NMFS condition the 

IHA to give the protected species 

observer (PSO) the authority to shut 

down the proposed activity if he or she 

believes that a seal is at risk from direct 

strike. 

Response: Vibratory pile removal is a 

technique that does not require 

‘‘strikes’’, as stated in the Commission’s 

comment. ‘Striking’ is associated with 

impact pile driving; however, PSOs and 

equipment operators will be alert to any 

potential marine mammal strike from 

equipment use in general. Should the 

PSO determine that seals could become 

injured via this form of strike (which 

would require an extremely close 

approach by an animal), he or she is 

responsible for alerting the equipment 

operator to the potential close approach. 

The operator is then required to shutdown the equipment as necessary to 

avoid direct strike. The DNR will 

instruct the hammer operator to abide 

by the PSO’s recommendations. In 

addition, no activity will be initiated 

until or unless seals are at a sufficient 

distance (i.e., 50 feet (15 m)) from the 

activity so as to minimize the risk of 

direct injury from the equipment, piling 

or structure breaking free or from 

equipment. In summary, PSOs will have 

the authority to instruct operators to 

shut equipment down in the event that 

a seal is at risk from direct strike by 

equipment; however, due to the 

implementation of proposed mitigation 

measures this is an extremely remote 

possibility. 

Comment 4: The Commission 

recommended that NMFS continue to 

require ramp-up or soft-starts. 

Response: As described in the 

proposed IHA notice, DNR is required to 

initiate soft-starts at the onset of pile 

removal if the hammer has the 

capability to do so. 

Description of Marine Mammals in the 

Area of the Specified Activity 

Harbor seals are the only marine 

mammal found within the action area. 


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Harbor seals within the Woodard Bay 

NRCA belong to the Washington Inland 

Waters stock, which was estimated 

around 14,612 individuals in 2003 

(NMFS, 2003). Although the stock 

assessment report for this stock has not 

been updated since 2003, based on 

trends of other harbor seal stocks, this 

is likely an underestimate. Based on the 

analyses of Jeffries et al. (2003) and 

Brown et al. (2005), both the 

Washington and Oregon coastal harbor 

seal stock have likely reached carrying 

capacity and are no longer increasing. 

Harbor seals are not listed as depleted 

under the MMPA or as endangered or 

threatened under the ESA. They are 

considered the most abundant resident 

pinniped species in Puget Sound (Lance 

and Jeffries, 2009). 

The harbor seal population within the 

NRCA is considered one of the healthier 

ones in southern Puget Sound. Seal 

numbers have been monitored at the site 

since 1977, when there were less than 

50 seals. In 1996, the highest count year, 

there were 600 seals. The average 

maximum annual count between 1977 

and 2008 was 315 seals with 410 

counted in August of 2008 (Buettner et 

al., 2008). Seal numbers peak during the 

pupping season and decline in the 

winter (when work will be conducted). 

A complete description of harbor seal 

behavior and habitat use within the 

NRCA can be found in the proposed 

IHA notice for this action (75 FR 48941; 

August 12, 2010). 

Effects on Marine Mammals 

Past disturbance observations at 

Woodard Bay NRCA have shown that 

seal harassment occurs from nonmotorized boats (e.g., recreational 

kayaks and canoes), motorized vessels 

(e.g., fishing boats), and people walking 

by the haulout (Calambokidis et al., 

1991; Buettner et al., 2008). Results of 

these studies are described in the 

proposed IHA notice for this action. 

Based on these studies, NMFS 

anticipates that the presence of crew 

and use of a vibratory hammer will 

result in behavioral harassment, 

primarily flushing off log booms, 

avoiding the area, or similar short-term 

behavioral disturbance. 

The portion of the Chapman Bay Pier 

that will be removed is more than 100 

yards (91 m) from the closest haul-out 

area. This activity is expected to take a 

maximum of 10 days and, although does 

not involve vibratory extraction, has the 

potential to result in behavioral 

harassment due to the pier’s proximity 

to the haulout. In contrast, the Woodard 

Bay trestle is located on the other side 

of a peninsula that separates Woodard 

and Chapman Bays and is a distance of 

more than 850 yards (777 m) from the 

closest haulout area. Work here is 

expected to take a maximum of 10 days 

to complete. Because of the distance 

from the haul-outs, the WA DNR 

anticipates structure removal at the 

Woodard Bay trestle will not disturb the 

seals. As such, 10 out of the 40 work 

days are not expected to result in harbor 

seal harassment. 

Though disturbance of harbor seals is 

expected to occur primarily through 

physical presence (i.e., crew and vessel 

presence in vicinity of harbor seals), 

hammer operations may disturb seals 

in-water. NMFS’ general in-water 

harassment thresholds for pinnipeds 

exposed to non-pulse noise, such as 

those produced by vibratory pile 

extraction, are 190 dB rms re: 1 microPa 

as the potential onset of Level A 

(injurious) harassment and 120 dB rms 

re: 1 microPa as the potential onset of 

Level B (behavioral) harassment. These 

levels are considered precautionary and 

NMFS is currently revising these 

thresholds to better reflect the most 

recent scientific data. 

In general, there is a paucity of data 

on airborne and underwater noise levels 

associated with pile extraction, and 

there is no known information on sound 

levels produced by vibratory extraction 

of derelict timber piles (as opposed to 

steel piles used temporarily). In 

addition, there is little data on the 

vibratory driving of timber piles, 

primarily because it is a seldom-used 

technique. Though it is reasonable to 

assume that vibratory extraction of 

timber piles would be somewhat quieter 

than vibratory driving of timber piles of 

the same size, NMFS will not make this 

assumption in the absence of data. The 

California Department of Transportation 

(Caltrans) has published data showing 

that vibratory pile driving of 12–24 inch 

steel piles typically results in sound 

pressure levels (SPLs) around 155–165 

dB re: 1 microPa (root mean square) ten 

meters from the source (Caltrans, 2007). 

Driving of steel piles is typically 

considered to produce higher SPLs than 

driving timber piles. As such, NMFS 

anticipates that in-water source levels 

for vibratory driving of timber piles 

would not exceed 165 dB (the maximum 

source SPL for driving 12–24 inch steel 

piles). Considering that (a) vibratory 

driving of 12–24 inch timber piles 

would not produce SPLs in excess of 

165 dB; (b) vibratory extraction may 

produce lower SPLs than vibratory 

driving, and would not produce higher 

SPLs; and (c) the piles to be extracted 

are approximately 12 inches in diameter 

(the low end of the size range that 

produced the 165 dB estimate for 

vibratory driving of timber piles), NMFS 

concludes conservatively that vibratory 

extraction will not result in sound levels 

near or above 190 dB re: 1 microPa. 

Therefore, injury will not occur, though 

noise from vibratory extraction will 

likely exceed 120 dB re: 1 microPa near 

the source and may induce responses 

in-water such as avoidance or alteration 

of behavioral states at time of exposure. 

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 exposures between 90–140 dB 

re: 1 microPa; no data exist from 

exposures at higher levels (Southall et 

al., 2007). Jacobs and Terhune (2002) 

observed wild harbor seal reactions to 

high frequency acoustic harassment 

devices (ADH) around nine sites. Seals 

came within 44 m of the active ADH 

and failed to demonstrate any 

behavioral response when received 

SPLs were estimated at 120–130 dB re: 

1 microPa. In a captive study (Kastelein, 

2006), a group of seals were collectively 

subjected to data collection and 

communication network (ACME) nonpulse sounds at 8–16 kHz. Exposures 

between 80–107 dB re: 1 microPa did 

not induce strong behavioral responses; 

however, a single observation at 100– 

110 dB re: 1 microPa indicated an 

avoidance response at this level. The 

group returned to baseline conditions 

shortly following exposure. Southall et 

al. (2007) notes contextual differences 

between these two studies noting that 

the captive animals were not reinforced 

with food for remaining in the noise 

fields, whereas free-ranging subjects 

may have been more tolerant of 

exposures because of motivation to 

return to a safe location or approach 

enclosures holding prey items. Recall 

that the hammer would only operate for 

approximately 1 min to break the pile 

free from the substrate, after which the 

hammer would stop and a crane would 

remove the pile from the water. 

Therefore, seals will not be exposed to 

extended in-water noise. 

Hearing Impairment 

Temporary or permanent hearing 

impairment is a possibility when marine 

mammals are exposed to very loud 

sounds. Hearing impairment is 

measured in two forms: temporary 

threshold shift (TTS) and permanent 

threshold shift (PTS). PTS is considered 

injurious whereas TTS is not as it is 

temporary and hearing is fully 

recoverable. There are 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 


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exposure levels above the level eliciting 

TTS-onset. PTS is presumed to be likely 

if the hearing threshold is reduced by 

≥40 dB (i.e., 40 dB of TTS). Due to the 

low source levels produced by vibratory 

extraction and short duration of 

vibration (1 min), marine mammals will 

not be exposed to levels that could elicit 

PTS; therefore, it will not be discussed 

further. 

Temporary Threshold Shift (TTS) 

TTS is the mildest form of hearing 

impairment that can occur during 

exposure to a loud sound (Kryter, 1985). 

While experiencing TTS, the hearing 

threshold rises and a sound must be 

louder in order to be heard. TTS can last 

from minutes or hours to, in cases of 

strong TTS, days. For sound exposures 

at or somewhat above the TTS-onset 

threshold, hearing sensitivity recovers 

rapidly after exposure to the noise ends. 

Few data on sound levels and durations 

necessary to elicit mild TTS have been 

obtained for marine mammals. Southall 

et al. (2007) considers a 6 dB TTS (i.e., 

baseline thresholds are elevated by 6 

dB) sufficient to be recognized as an 

unequivocal deviation and thus a 

sufficient definition of TTS-onset. 

Because it is non-injurious, NMFS 

considers TTS as Level B harassment 

that is mediated by physiological effects 

on the auditory system; however, NMFS 

does not consider onset TTS to be the 

lowest level at which Level B 

harassment may occur. 

Harbor seals within the action area are 

considered resident and may therefore 

be continually exposed to habitat 

restoration activities. Sound exposures 

that elicit TTS in pinnipeds underwater 

have been measured in harbor seals, 

California sea lions, and northern 

elephant seals for broadband or 

octaveband (OBN) non-pulse noise 

ranging from approximately 12 minutes 

to several hours (Kastak and 

Schusterman, 1996; Finneran et al., 

2003; Kastak et al., 1999; Kastak et al., 

2005). Collectively, Kastak et al. (2005) 

analyzed these data to indicate that in 

the harbor seal, a TTS of ca. 6 dB 

occurred with 25 minute exposure to 2.5 

kHz OBN with SPL of 152 dB re:1 

microPa; the California sea lion showed 

TTS-onset at 174 dB re: 1 microPa (as 

summarized in Southall et al., 2007). 

Source levels emitted by vibratory pile 

extraction are low (likely below 155 dB) 

and would only occur for approximately 

1 minute before stopping. The studies 

referenced above indicate that sound 

pressure levels at similar levels must be 

continuous to induce TTS. Furthermore, 

the studies above exposed animals to 

sounds with frequency ranges closer to 

their peak hearing frequency whereas 

vibratory hammers produce low 

frequency sounds, towards the lower 

end of seal hearing capabilities and 

therefore they must be louder in order 

to be heard. For these reasons, NMFS 

does not anticipate TTS will be 

induced. 

In summary, it is anticipated that 

seals will be initially disturbed by crew 

and vessels associated with the habitat 

restoration project; however, given the 

short duration and low energy of 

vibratory extraction, PTS will not occur 

and TTS is not likely. Those animals 

hauled out on the log booms will likely 

flush into the water. To avoid inducing 

strong reactions, the DNR will conduct 

activities such that the piles farthest 

from the hauled out seals will be 

removed first; thereby avoiding a 

sudden disturbance and allowing seals 

time to acclimate to human activity. The 

DNR will also not remove piles within 

30 yards (27 m) of haulouts, avoiding 

extreme close approaches. Throughout 

the day, seals are expected to become 

accustomed to crew presence of 

construction activities, as seen in 

previous disturbance studies within the 

Woodard Bay NRCA and other harbor 

seal populations. For these reasons, 

harbor seals are not expected to 

abandon the haulout or demonstrate 

extreme behaviors in response to crew 

and habitat restoration activities. 

Anticipated Effects on Habitat 

Marine mammal habitat will be 

temporarily ensonified by low sound 

levels resulting from habitat restoration 

effort. The piles designated to be 

removed have been treated with 

creosote, a wood preservative that is 

toxic to the environment. Removing 

these piles will have beneficial impacts 

to the NRCA, including marine mammal 

habitat, by preventing the leaching of 

creosote chemicals, including 

polycyclic aromatic hydrocarbons, into 

the marine environment. No log booms 

will be removed; therefore, no impacts 

to the physical availability of haulout 

structure will occur. 

Mitigation 

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 adverse 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. 

The DNR has proposed mitigation 

measures designed to minimize 

disturbance to harbor seals within the 

action area in consideration of timing, 

location, and equipment use. Foremost, 

pile and structure removal will only 

occur between November and February, 

well outside harbor seal pupping and 

molting seasons. Therefore, no impacts 

from the specified activity during these 

sensitive time periods will occur. The 

DNR will approach the action area 

slowly to alert seals to their presence 

from a distance and will begin pulling 

piles at the farthest location from the log 

booms used as harbor seal haulout 

areas. Pilings directly associated with 

harbor seal haulouts (i.e., those within 

30 yards (27 m) of the booms) will not 

be removed. The contractor will be 

required to survey the operational area 

for seals before initiating activities and 

to wait until the seals are at a sufficient 

distance (i.e., 50 ft (15 m)) from the 

activity so as to minimize the risk of 

direct injury from the piling or structure 

breaking free or from equipment. The 

DNR will also require the contractor to 

initiate a vibratory hammer ‘‘soft start’’ 

at the beginning of each work day. The 

‘‘soft-start’’ method includes a reduced 

energy vibration from the hammer for 

the first 15 seconds and then a one 

minute waiting period. This method 

will be repeated twice before 

commencing with regular energy 

operations. Finally, the vibratory 

hammer power pack will be outfitted 

with a muffler to reduce in-air noise 

levels. 

NMFS has carefully evaluated the 

applicant’s proposed mitigation 

measures in the context of ensuring that 

NMFS prescribes the means of effecting 

the least practicable adverse 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, including 

consideration of personnel safety, and 

practicality of implementation. 

Based on our evaluation of the 

applicant’s proposed measures, as well 

as other measures considered by NMFS 

or recommended by the public, NMFS 

has preliminarily determined that the 

proposed mitigation measures provide 

the means of effecting the least 

practicable adverse impacts on marine 


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mammals 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 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 IHAs 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. 

Harbor seal research has been 

conducted at Woodard Bay since the 

1970’s and has included seal ecology, 

population dynamics and disturbance 

behavior (Newby, 1970; Calambokidis et 

al., 1991; Buettner et al., 2008; 

Lambourn et al., 2009). The DNR’s 

monitoring plan adheres to protocols 

already established for Woodard Bay 

research and, in coordination with 

NMFS, has been tailored for the 

specified activity. Monitoring of both 

haul-outs will be performed by at least 

one NMFS approved protected species 

observer (PSOs), who will monitor the 

haulouts the first two days of the 

project, when the contractors are 

mobilizing to a new location, during 

two days of every week when activities 

are occurring within 100 yards of the 

haul out area, during five of the days of 

work on the Chapman Bay Pier, and for 

at least six other days during the 40 day 

work period to be decided when the 

project schedule is provided by the 

contractor. Therefore, there will be at 

least 15 days where a designated 

observer will be on site over the course 

of 40 days of work. The PSO will be 

onsite prior to crew and vessel arrival to 

determine the number of seals present 

pre-disturbance. The PSO will maintain 

a low profile during this time to 

minimize disturbance from monitoring. 

Observational data collected will 

include monitoring dates, times and 

conditions, estimated number of take, 

which will be recorded as number of 

seals flushed from the haulout, and type 

of activity occurring at time of 

disturbance. This information will be 

determined by recording the number of 

seals using the haul-out on each 

monitoring day prior to the start of 

restoration activities for that day, 

recording the number of seals that flush 

from the haulout or, for animals already 

in the water, display adverse behavioral 

reactions to vibratory extraction. A 

description of the disturbance source, 

the proximity in meters of the 

disturbance source, and reactions will 

be noted. Within 90 days of the 

completion of the project, DNR will 

submit a monitoring report to NMFS 

that will include a summary of findings 

and copies of field data sheets and 

relevant daily logs from the contractor. 

Estimated Take by Incidental 

Harassment 

Except with respect to certain 

activities not pertinent here, the MMPA 

defines ‘‘harassment’’ as: 

any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A harassment]; or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

During previous surveys, seal counts 

for the month of October, the last month 

(and closest to the months when the 

project will be carried out) that data is 

recorded each year, averaged 171 and 

ranged between 79 and 275 individuals 

from 2006 to 2009 (Lambourn, 2010). 

Although there is no data for the months 

from November through February, when 

the project is scheduled to take place, 

the number of seals is expected to 

decline during these months, as 

compared with the summer/fall 

pupping season. Additionally, the seal 

counts for the month of October, from 

2006–2009, are an aggregate of both 

haul-out sites from which seals may be 

disturbed. Given that the seals are likely 

to be relatively evenly split between the 

two haul-out sites, only a portion of the 

seals present on any given day would be 

subject to Level B harassment (i.e., those 

seals present at the haul-out closest to 

the area where work is occurring). 

Therefore, the DNR rejected the use of 

the most conservative approach to take 

estimation (using the maximum of 275 

seals), and used a more moderate 

approach (using the mean number of 

171 seals). Using this moderate 

approach, the DNR considers that 171 

seals could potentially be affected by 

the project per day. Woodard Bay trestle 

removal operations are not expected to 

harass marine mammals as the trestle is 

located approximately 850 yards (777 

m) from the closest haulout. Therefore, 

days spent removing the trestle have 

been removed from take calculations. In 

addition, the DNR has proposed that 

removal of pilings located at greater 

than 100 yards (91 m) from the harbor 

seal haulout will not result in 

harassment as NMFS has indicated that 

people at Woodard Bay should remain 

100 yards from the seals to prevent 

disturbance. Therefore, the DNR is 

estimating only nine days of pile 

removal will result in harassment to 

seals within the action area. Seals may 

be disturbed due to crew presence of 

pile removal operations. Given the mean 

of 171 animals on a haulout at any given 

day, the DNR is authorized to take, by 

Level B harassment, 1539 seals (171 × 9) 

during the habitat restoration project 

with the inference that the individual 

number of seals harassed will be low 

but may be taken multiple times. This 

take estimation reflects a change in 

methodology from that presented in the 

Federal Register notice of proposed 

authorization (75 FR 48941, August 12, 

2010). In that document, the DNR 

proposed to use the more conservative 

methodology for take estimation (i.e., 

275 × 9); however, for reasons discussed 

previously in this section, the DNR has 

determined a more moderate approach 

to take estimation is appropriate. 

Negligible Impact and Small Numbers 

Analysis and Determination 

NMFS has defined ‘‘negligible impact’’ 

in 50 CFR 216.103 as ‘‘ * * * an impact 

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival.’’ 

In making a negligible impact 

determination, NMFS considers a 

number of factors associated with the 

proposed action and affected species 

and stocks including, but not limited to, 

the number of anticipated mortalities; 

number and nature of anticipated 

injuries; number, nature, intensity, and 

duration of Level B harassment; and 

temporal and spatial scale of the 

proposed action with respect to the 

ecology and life history of potentially 

affected marine mammals (e.g., will 

harassment occur on prime foraging 

grounds, during critical reproductive 

times, etc.). 

For reasons described previously in 

this document, there is no potential for 

serious injury or mortality from the 

specified activity. Further, although the 

potential for injury could be 

discountable to begin with, mitigation 

and monitoring measures will ensure 

seals are not physically injured from 

equipment (auditory injury is not 

possible due to low source levels and 

intermittent hammer operation). 

However, it is likely seals will react to 

the presence of crew and equipment and 

vibratory extraction noise (e.g., by 

flushing, avoiding the area). The DNR 

will not conduct habitat restoration 


jlentini on DSKJ8SOYB1PROD with NOTICES
67956 Federal Register / Vol. 75, No. 213 / Thursday, November 4, 2010 / Notices 

operations during the pupping and 

molting season; therefore, no pups will 

be affected by the proposed action and 

no impacts to any seals will occur as a 

result of the specified activity during 

these sensitive time periods. Mitigation 

measures (e.g. beginning work at the 

farthest distance to the haulout as 

possible, use of a muffler pack, etc.) will 

minimize onset of sudden, acute 

reactions and overall disturbance during 

project activities. In addition, it is not 

likely that seals at multiple haulouts 

will be disturbed simultaneously as 

work, for example, may affect the 

southern haulout but not the northern 

haulout based on location of the crew 

and barge. Although seals may initially 

flush into the water, based on previous 

disturbance studies and maintenance 

activity at the haulouts, the DNR 

expects seals will quickly habituate to 

piling and structure removal operations. 

For these reasons no long term or 

permanent abandonment of the haulout 

is anticipated. 

The seals at Woodard Bay are 

considered resident and make small 

daily movements to forage; however, 

exactly how far they transit is unknown. 

The mean count of the localized seal 

population from 1977–2008 was 315 

animals during the pupping season with 

a maximum of 400 individuals counted 

in 2008 during this time. However, as 

described above, these numbers drop 

over the late fall and winter. The DNR 

has scheduled the project to occur from 

November–February, a time outside of 

sensitive reproductive periods and 

during a time seal numbers are lowest. 

The DNR is authorized to take 

approximately 171 seals multiple times. 

The number of individual seals harassed 

may be considered small (10.5%) when 

compared to the Inland Washington 

stock size (n=14,612). The fact that only 

temporary Level B, or behavioral, 

harassment would occur, and that the 

activity has been scheduled outside of 

sensitive reproduction periods, ensures 

that the least practicable adverse impact 

will occur. 

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 finds that piling and structure 

removal associated with the WA DNR’s 

habitat restoration 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 

specified activity will have a negligible 

impact on the affected species or stocks. 

Impact on Availability of Affected 

Species for Taking for Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. Endangered Species Act (ESA); 

thus, there will not be an unmitigable 

adverse impact on the availability for 

taking marine mammals for subsistence 

uses. 

No marine mammals listed under the 

ESA have the potential to be taken 

incidental to the proposed action as 

none occur within the action area. 

Therefore, Section 7 consultation under 

the ESA is not required. 

National Environmental Policy Act 

(NEPA) 

In compliance with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.), as implemented by 

the regulations published by the 

Council on Environmental Quality (40 

CFR parts 1500–1508), and NOAA 

Administrative Order 216–6, NMFS has 

prepared an Environmental Assessment 

(EA) to consider the direct, indirect and 

cumulative effects to pinnipeds and 

other applicable environmental 

resources resulting from issuance of the 

IHA. On October 27, 2010, NMFS issued 

a Finding of No Significant Impact on 

the EA. 

Dated: October 29, 2010. 

James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2010–27883 Filed 11–3–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEFENSE NUCLEAR FACILITIES 

SAFETY BOARD 

Extension of Time To Supplement 

Hearing Record 

AGENCY: Defense Nuclear Facilities 

Safety Board. 

ACTION: Extension of time to supplement 

hearing record. 

SUMMARY: The Defense Nuclear 

Facilities Safety Board (Board) 

published a document in the Federal 

Register of July 26, 2010, (75 FR 43495), 

as amended, (75 FR 56080), concerning 

notice of a public hearing and meeting 

on October 7 and 8, 2010, with regard 

to the safety-related aspects of the 

design and construction of the 

Department of Energy’s Waste 

Treatment and Immobilization Plant at 

the Hanford Site. The Board stated in 

that notice that the Board would hold 

the hearing record open until November 

7, 2010, for the receipt of additional 

materials. The Board made the same 

representation at the conclusion of the 

hearing on October 8, 2010. 

Extension of Time: The Board now 

extends the period of time for which the 

hearing record will remain open an 

additional sixty (60) days until January 

6, 2011. The Board has become aware of 

information which indicates that the 

public interest will be best served by 

extending the deadline for submission 

of materials into the hearing record. The 

Board will consider any such additional 

material in the course of evaluating its 

response to information collected at the 

hearing. 

Contact Person for More Information: 

Brian Grosner, General Manager, 

Defense Nuclear Facilities Safety Board, 

625 Indiana Avenue, NW., Suite 700, 

Washington, DC 20004–2901, (800) 788– 

4016. This is a toll-free number. 

Dated: November 1, 2010. 

Peter S. Winokur, 

Chairman. 

[FR Doc. 2010–27900 Filed 11–3–10; 8:45 am] 

BILLING CODE 3670–01–P 

DEPARTMENT OF DEFENSE 

Department of the Navy 

Meeting of the Chief of Naval 

Operations Executive Panel 

AGENCY: Department of the Navy, DoD. 

ACTION: Notice of Partially Closed 

Meeting. 

SUMMARY: The Chief of Naval Operations 

(CNO) Executive Panel will report on 

the findings and recommendations of 

the Latin America and the Caribbean, 

2010 Subcommittee study. The meeting 

will consist of open and closed 

discussions. Closed discussions will 

include national and naval intelligence 

analysis, as well as consider major 

challenges which the United States will 

face over the next five years and 

implications of the regional security 

environment on the prospective role of 

U.S. naval forces. Open discussions will 

include the political, social and 

economic environment of Latin America 

and the Caribbean, focusing on crime 

(particularly narcotics trafficking), 

regional ethnic conflicts, and analysis of 

regional democratic processes. The 

discussion will concentrate on Central 

and South America and the Caribbean; 

considering issues also effecting Mexico 

as appropriate. 

DATES: The meeting will be held on 

December 14, 2010, from 9 a.m. to 11:30 

a.m. The session from 9 a.m.–10 a.m. 

will be open to the public; the session 

from 10 a.m.–11:30 a.m. will be closed 

to the public. 


jlentini on DSKJ8SOYB1PROD with NOTICES