Marine Mammals; Small Takes of Marine Mammals Incidental to Specified Activities

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 011195A]

Marine Mammals; Small Takes of Marine Mammals Incidental to

Specified Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of issuance of an incidental harassment authorization.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection

Act (MMPA) as amended, notification is hereby given that an Incidental

Harassment Authorization to take small numbers of harbor seals by

harassment incidental to the nonexplosive demolition of the Still

Harbor Dock Facility on McNeil Island in southern Puget Sound has been

issued to the Washington State Department of Corrections (WDOC).

EFFECTIVE DATE: This authorization is effective from 0001 hours January

20, 1995 until 2400 hours January 19, 1996.

ADDRESSES: The application and authorization are available for review

in the following offices: Marine Mammal Division, Office of Protected

Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and

the Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Marine Mammal

Division, Office of Protected Resources at 301-713-2055, or Brent

Norberg, Northwest Regional Office at 206-526-6733.

SUPPLEMENTARY INFORMATION: Section 101(a)(5)(A) of the MMPA (16 U.S.C.

1361 et seq.) directs the Secretary of Commerce 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 regulations are issued.

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.

On April 30, 1994, the President signed Public Law 103-238, the

Marine Mammal Protection Act Amendments of 1994. One part of this law

added a new subsection 101(a)(5)(D) to the MMPA to establish an

expedited process by which citizens of the United States can receive an

authorization, without regulations, to incidentally take small numbers

of marine mammals by harassment. New subsection 101(a)(5)(D)

establishes a 45-day time limit for NMFS review of an application

followed by a 30-day public notice and comment period on any proposed

authorizations for the incidental harassment of small numbers of marine

mammals. Within 45 days of the close of the comment period, NMFS must

either issue or deny issuance of the authorization.

On August 18, 1994, the WDOC applied for an authorization under

section 101(a)(5)(D) of the MMPA, for the take of a small number of

harbor seals by harassment incidental to the demolition of the existing

dock facility and the driving of approximately 152 concrete, plastic,

and steel piles (90 concrete, 40 plastic, and 22 steel) of the Still

Harbor Dock Facility on McNeil Island in southern Puget Sound, WA.

Notice of receipt of the application and the proposed authorization was

published on November 8, 1994 (59 FR 55639) and a 30-day public comment

period was provided on the application and proposed authorization. In

addition, an Environmental Assessment (EA) was prepared for this action

by NMFS and made available at that time. During the comment period, one

comment was received. The Marine Mammal Commission recommended that the

proposed small take exemption not be issued until the uncertainties and

details of the monitoring program have been worked out and NMFS is able

to reasonably conclude that the (monitoring) program is appropriate to

detect any possible harmful effects on the local harbor seal

population. In part as a result of this comment, a condition of the

Incidental Harassment Authorization is for WDOC to notify both NMFS and

the Washington Department of Fish and Wildlife (WDFW) at least 48 hours

prior to commencement of work in order to allow observations of harbor

seals prior to work beginning. To ensure that observations take place

during demolition work, if NMFS and/or WDFW biologists are not

available during demolition, the WDOC is required to contract for

behavioral observations to be made during any work on the McNeil Island

Dock. The Commission also questioned the scheduling of the proposed

activities and noted that while documentation states that ``[t]he dock

removal and construction schedules were developed to avoid

reproductively sensitive life history periods of several species of

wildlife, including harbor seals'' the documents did not indicate what

other wildlife species were considered or discussed. As a result, the

Commission was concerned that they were not able to determine whether

the proposed authorization would meet the requirements of section

101(a)(5)(D)(ii) of the MMPA. As explained to the Commission, these

other species were not discussed in the EA because they were discussed

in the Environmental [[Page 7047]] Impact Statement prepared by the

WDOC (which was incorporated by reference into the EA). It should be

noted that the dock construction schedule was developed by the

applicant in cooperation with the WDFW to ensure the least impact on

the various protected species. Once NMFS was assured that the taking

would not result in more than the harassment (as defined by the MMPA

Amendments of 1994) of a small number of harbor seals, would have a

negligible impact on the species, and would result in the least

practicable impact on the stock, NMFS determined that the requirements

of section 101(a)(5)(D) had been met and the authorization could be

issued.

Additional background information on the activity and request can

be found in the notice of receipt and proposed authorization (59 FR

55639, November 8, 1994) and need not be repeated here.

Dated: January 30, 1995.

Patricia A. Montanio,

Acting Deputy Director, Office of Protected Resources, National Marine

Fisheries Service.

[FR Doc. 95-2748 Filed 2-3-95; 8:45 am]

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