86538 Federal Register / Vol. 85, No. 250 / Wednesday, December 30, 2020 / Notices 

7See 19 CFR 351.224(b). 

exported by Reliance entered, or 

withdrawn from warehouse, for 

consumption on or after November 6, 

2017 through December 31, 2018, at the 

ad valorem assessment rate listed above 

for Reliance. 

In accordance with section 

751(a)(2)(C) of the Act, we intend also 

to instruct CBP to collect cash deposits 

of estimated countervailing duties in the 

amounts shown above on shipments of 

subject merchandise entered, or 

withdrawn from warehouse, for 

consumption on or after the date of 

publication of the final results of this 

review. For all non-reviewed firms, 

Commerce will instruct CBP to continue 

to collect cash deposits of estimated 

countervailing duties at the most recent 

company-specific or all-others rate 

applicable to the company, as 

appropriate. These cash deposit rates, 

when imposed, shall remain in effect 

until further notice. 

Disclosure 

Commerce intends to disclose the 

calculations and analysis performed for 

these final results to interested parties 

within five days of the date of 

publication of this notice in the Federal 

Register.7

Administrative Protective Order 

This notice also serves as a final 

reminder to parties subject to an 

administrative protective order (APO) of 

their responsibility concerning the 

disposition of proprietary information 

disclosed under APO in accordance 

with 19 CFR 315.305(A)(3). Timely 

written notification of the return/ 

destruction of APO materials or 

conversion to judicial protective order is 

hereby requested. Failure to comply 

with the regulations and the terms of an 

APO is a sanctionable violation. 

Notification to Interested Parties 

These final results are issued and 

published in accordance with sections 

751(a)(1) and 777(i)(1) of the Act and 19 

CFR 351.221(b)(5). 

Dated: December 21, 2020. 

Jeffrey I. Kessler, 

Assistant Secretary for Enforcement and 

Compliance. 

Appendix—List of Topics Discussed in 

the Issues and Decision Memorandum 

I. Summary 

II. Background 

III. Scope of the Order 

IV. Use of Facts Otherwise Available and 

Application of Adverse Inferences 

V. Subsidies Valuation Information 

VI. Analysis of Programs 

VII. Discussion of the Issues 

Comment 1: Sales Value Denominators 

Comment 2: Whether To Apply Adverse 

Facts Available (AFA) To Export Sales 

Values 

Comment 3: Discount Rates 

Comment 4: Calculation of Duty 

Exemptions Under the Special Economic 

Zone (SEZ) Duty-Free Importation of 

Capital Goods and Raw Materials, 

Components, Consumables, 

Intermediates, Spare Parts, and Packing 

Materials Program and Export Promotion 

of Capital Goods Scheme (EPCGS) 

Comment 5: Application of AFA to the SEZ 

Duty-Free Importation of Capital Goods 

and Raw Materials, Components, 

Consumables, Intermediates, Spare Parts, 

and Packing Materials Program and 

EPCGS 

Comment 6: Land Benchmark 

Comment 7: Whether the SEZ Programs, 

Technology Upgradation Fund Scheme 

(TUFS), and Merchandise Export From 

India Scheme (MEIS) Are 

Countervailable 

VIII. Recommendation 

[FR Doc. 2020–28789 Filed 12–29–20; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XA736] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Service Pier 

Extension Project on Naval Base 

Kitsap Bangor, Washington 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Issuance of a modified 

incidental harassment authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA), as 

amended, notification is hereby given 

that NMFS has issued a modified 

incidental harassment authorization 

(IHA) to United States Navy (Navy) to 

incidentally harass marine mammals 

incidental to the Service Pier Extension 

(SPE) project at Naval Base Kitsap 

Bangor, Washington. 

DATES: This modified IHA is valid from 

the original date of issuance through 

July 15, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Robert Pauline, Office of Protected 

Resources, NMFS, (301) 427–8401. 

Electronic copies of the original 

application and supporting documents 

(including NMFS Federal Register 

notices of the original proposed and 

final authorizations, and the previous 

IHA), as well as a list of the references 

cited in this document, may be obtained 

online at: https://

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. In case 

of problems accessing these documents, 

please call the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) 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 

incidental take authorization may be 

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) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of such takings are set 

forth. 

History of Request 

On June 28, 2018, NMFS published a 

notice of our issuance of an IHA 

authorizing take of five species of 

marine mammals by Level A and Level 

B harassment incidental to the SPE 

project (83 FR 30406). Species 

authorized for take included killer 

whale (Orcinus orca), harbor porpoise 

(Phocoena phocoena), California sea 

lion (Zalophus californianus), Steller 

sea lion (Eumetopias jubatus), and 

harbor seal (Phoca vitulina). The 

effective dates of that IHA were July 16, 

2019 through July 15, 2020. On 

February 4, 2019, the Navy informed 

NMFS that the project was being 

Federal Register / Vol. 85, No. 250 / Wednesday, December 30, 2020 / Notices 86539 

delayed by one full year. None of the 

work identified in the initial IHA had 

occurred and no marine mammals had 

been taken during the effective dates of 

the initial IHA (July 16, 2018 through 

July 1, 2019). Therefore, the Navy 

submitted a formal request for 

reissuance of the initial IHA with new 

effective dates of July 16, 2020 through 

July 15, 2021. NMFS re-issued this IHA 

on July 3, 2019 (84 FR 31844). The IHA 

covered construction work identical to 

what was analyzed and authorized 

through the initial IHA. 

On October 14, 2020, NMFS received 

a request from the Navy for a 

modification to the current IHA due to 

an elevated harbor seal take rate. The 

Navy felt that without an increase in 

authorized take of harbor seal they 

would be forced to repeatedly shut 

down whenever animals entered into 

specified Level A harassment zones. 

This would likely prolong the duration 

of in-water construction activities and 

add increased costs to the project. 

Therefore, the Navy requested a 

modification of the IHA to increase 

authorized take of harbor seal by Level 

A harassment. NMFS published the 

notice of the proposed IHA modification 

in the Federal Register on November 24, 

2020 (85 FR 74989). The mitigation, 

monitoring, and reporting measures 

remain the same as prescribed in the 

initial IHA with minor revisions to 

mitigation requirements. No additional 

take is authorized for species other than 

harbor seal. Moreover, the IHA would 

still expire on July 15, 2021. 

Description of the Specified Activity 

and Anticipated Impacts 

The modified IHA would include the 

same construction activities (i.e., impact 

pile driving, vibratory pile driving, 

vibratory pile removal) in the same 

locations that were described in the 

initial IHA, The monitoring and 

reporting measures remain the same as 

prescribed in the initial IHA, while 

minor revisions to the required 

mitigation measures have been 

authorized. NMFS refers the reader to 

the documents related to the initial IHA 

issued on June 28, 2018 (83 FR 30406), 

for more detailed description of the 

project activities. Other relevant 

documents include the notice of 

proposed IHA and request for comments 

(83 FR 10689; March 12, 2018), notice 

of reissued IHA (84 FR 31844, July 3, 

2019), and notice of proposed IHA 

modification (85 FR 74989; November 

24, 2020). 

Detailed Description of the Action 

A detailed description of the 

construction activities is found in these 

previous documents. The location, 

timing, and nature of the activities, 

including the types of piles and 

methods of installation and removal are 

identical to those described in the 

previous notices. 

Public Comments 

A notice of proposed IHA 

modification was published in the 

Federal Register on November 24, 2020 

(85 FR 74989). During the 15-day public 

comment period, NMFS received 

comments from the Marine Mammal 

Commission (Commission). NMFS has 

posted the comments online at: https:// 

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. A 

summary of the comments as well as 

NMFS’ responses are below. 

Comment 1: The Commission 

recommended that NMFS reduce all 

shut-down zones for phocids during 

vibratory and impact pile driving and 

removal to at least 25 m or even 10 m. 

Response: NMFS does not concur 

with the Commission’s recommendation 

of decreasing shutdown zones beyond 

what NMFS had proposed in the 

Federal Register notice of a modified 

IHA. While multiple shutdowns are 

problematic due to habituated seals 

entering shutdown zones, the Navy is 

equally concerned about the possibility 

of exceeding authorized take of seals. 

Additional measures authorized under 

this IHA will decrease shutdowns to a 

level that is practicable for the Navy 

while also increasing authorized take to 

avoid exceeding authorized limits. 

When any of the three most-habituated 

seals enters into Level A harassment 

zones during either impact or vibratory 

driving, they will be recorded as Level 

A harassment takes. However, pile 

driving operations will be allowed to 

continue since the three habituated 

seals are responsible for most of the 

work stoppages and recorded takes 

during both impact and vibratory 

driving. These seals can be individually 

identified and monitored in order to 

avoid repeated takes of a single animal. 

Additionally, a smaller phocid Level A 

harassment and shutdown zone will be 

established and monitored based on in 

situ sound source verification (SSV) 

testing for impact driving. The SSV 

testing showed a Level A harassment 

isopleth of 92 m compared to a 217 m 

isopleth authorized in the existing IHA, 

resulting in lower takes of seals. 

NMFS notes that the reduction in 

shutdown zones recommended by the 

Commission would not have any effect 

on take of harbor seals by Level A 

harassment. The Level A harassment 

zones (92 m for impact driving and 30 

m for vibratory with the exception of 

habituated seals) would remain 

unchanged and takes would occur in 

those zones even if smaller shutdown 

zones were established and monitored. 

There could be some decrease in the 

number of shutdowns, but since most 

shutdowns are caused by the three 

most-habituated seals, who are 

exempted from the shutdowns at 92 m 

and 30 m under the modified IHA, any 

reduction would likely be minor. 

Furthermore, establishment and 

monitoring of the larger shutdown zones 

proposed by NMFS will limit exposure 

to sound levels that could result in 

permanent threshold shift (PTS) for 

seals other than the three highlyhabituated animals. 

Comment 2: The Commission 

recommended that NMFS increase the 

number of Level A harassment takes 

from 445 to 509 to account for the 

incidental taking of all harbor seals 

known to occur in the project area on 

the 48 remaining in-water work days. 

Response: The Commission’s 

recommendation is based on data that 

was collected near the time when the 

notice of proposed IHA was published 

(85 FR 74989; November 24, 2020). 

When NMFS was drafting the notice of 

proposed IHA, the Navy had recorded 

58 takes of harbor seal by Level A 

harassment. The most up-to-date 

information regarding take of harbor 

seals after submission of the notice of 

proposed IHA to the Federal Register 

was provided by the Navy on November 

21, 2020. The Navy reported that there 

had been 85 takes of harbor seal by 

Level A harassment up to that date with 

48 days of in-water work remaining. 

NMFS agrees with the Commission’s 

recommendation that eight harbor seal 

takes by Level A harassment should be 

authorized for each remaining day of inwater work resulting in 384 takes. This 

value has been added to the 125 takes 

by Level A harassment originally 

authorized resulting in a total of 509 

Level A harassment takes. The total 

number of takes by both Level A 

harassment and Level B harassment has 

not changed (5,725) because the new 

Level A takes are assumed to occur to 

animals that would have previously 

been counted as taken by Level B 

harassment. Therefore, NMFS has 

reduced authorized Level B harassment 

take of harbor seal from 5,600 in the 

initial IHA to 5,216 in the modified 

IHA. The total numbers of incidental 

takes by Level A and Level B 

harassment as a percentage of 

population remains the same as shown 

in Table 2. 

Comment 3: The Commission 

recommended that NMFS reassess the 

86540 Federal Register / Vol. 85, No. 250 / Wednesday, December 30, 2020 / Notices 

number of Level A harassment takes 

authorized for harbor seals during the 

Navy’s Transit Protection Program (TPP) 

Year 1 activities and whether to 

authorize Level A harassment takes for 

Year 2 activities. The Commission also 

recommended that NMFS modify the 

Navy’s TPP authorizations to reduce all 

shut-down zones for phocids during 

vibratory and impact pile driving and 

removal and increase the number of 

Level A harassment takes to account for 

the eight harbor seals known to occur in 

the project area on each day of 

activities. 

Response: NMFS will consider the 

Commission’s input regarding existing 

and future IHA’s pertaining to Naval 

Base Kitsap-Bangor. 

Changes From Proposed IHA 

Modification 

NMFS has increased authorized take 

of harbor seals by Level A harassment 

from 445 in the proposed IHA to 509 in 

the modified IHA while take by Level B 

harassment has been reduced from 

5,280 to 5,216. The rationale for this 

change is provided in the Estimated 

Take section. 

Description of Marine Mammals 

A description of the marine mammals 

in the area of the activities is found in 

the notice of proposed IHA and request 

for comments (83 FR 10689; March 3, 

2018); notice of initial IHA issued on 

June 28, 2018 (83 FR 30406); notice of 

reissued IHA (84 FR 31844, July 3, 

2019); and notice of proposed IHA 

modification (85 FR 74989; November 

24, 2020), which remain applicable to 

this modified IHA as well. In addition, 

NMFS has reviewed recent Stock 

Assessment Reports, information on 

relevant Unusual Mortality Events, and 

recent scientific literature, and 

determined that no new information 

affects our original analysis of impacts 

under the initial IHA. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

A description of the potential effects 

of the specified activities on marine 

mammals and their habitat may be 

found in the documents supporting the 

initial IHA (83 FR 30406; June 28, 2018) 

which remains applicable to the 

issuance of this modified IHA. There is 

no new information on potential effects. 

For harbor seals, observations indicate 

that eight identified individuals are 

often observed in relatively close 

proximity to the pile driving operations. 

Three of the eight animals occur more 

frequently, often on a daily basis. Given 

this, there is a higher likelihood than 

initially considered that these animals 

may incur PTS at a low-moderate level 

due to the repeated, longer-duration 

exposure to higher levels of sound. 

Estimated Take 

A detailed description of the methods 

and inputs used to estimate take for the 

specified activity are found in the notice 

of IHA for the initial authorization (83 

FR 30406; June 28, 2018). The pile 

installation and removal equipment that 

may result in take, as well as the source 

levels, marine mammal stocks taken, 

marine mammal density data and the 

methods of take estimation applicable to 

this authorization remain unchanged 

from the previously issued IHA. The 

number of authorized takes is also 

identical with the exception of harbor 

seals. 

The in-water work window (when 

ESA-listed salmonids are least likely to 

be present) runs from July 16, 2020 

through January 15, 2021. Pile 

installation started September 4, 2020 

with both vibratory and impact pile 

drivers being employed. After in-water 

work commenced, protected species 

observers (PSOs) began recording a 

specific group of harbor seals that 

consistently entered and remained in 

the Level A harassment zone. (Note that 

the term PSO has replaced marine 

mammal observer (MMO) in this notice 

as well as the draft modified IHA, 

although the functions and duties of 

each are identical). This has resulted in 

excessive shutdowns. Due to these 

frequent shutdowns the pile installation 

project is behind schedule. PSOs have 

identified at least eight harbor seals that 

frequent the project area and have 

become habituated to the in-water 

construction work. These seals include 

four pups and four adults which have 

all been individually identified. Three 

of the pups are seen in the project area 

on almost a daily basis. The pups 

approach the work site repeatedly 

during the day and stay in the work area 

for up to 90 minutes. Two of the pups 

and all of the adults have had 

occasional behavioral reactions to pile 

driving activity. For example, PSOs 

have recorded seals occasionally 

exhibiting behaviors such as startled 

response and fast swimming away from 

the activity. 

On October 14, 2020, NMFS received 

a request from the Navy for a 

modification to the current IHA due to 

an elevated harbor seal take rate. NMFS 

concurred that under the current take 

rate, the Navy would likely exceed 

authorized take prior to the effective 

end data of the IHA. 

The Navy utilized NMFS’ User 

Spreadsheet to calculate the Level A 

harassment isopleths associated with 

project activities which was developed 

as part of the NMFS Technical Guidance 

(2016) in recognition of the fact that 

ensonified area/volume could be more 

technically challenging to predict 

because of the duration component in 

the new thresholds. Inputs to the model 

for the initial IHA are shown in Table 

1. This model calculated a 217-m Level 

A harassment isopleth for phocids (i.e., 

harbor seals) during impact driving of 

36-in steel piles. The size of this PTS 

harassment zone for 36-steel pile impact 

driving is relatively large compared to 

PTS zones for both impact and vibratory 

driving of other pile types and sizes. 

The large zone size and habituation of 

a limited number of seals has 

contributed to a greater phocid take rate 

than was initially calculated. 

TABLE 1—INPUTS FOR DETERMINING DISTANCES TO CUMULATIVE PTS THRESHOLDS

[36′′ Steel impact] 

Spreadsheet tab used 

Impact pile driving 

Initial IHA inputs Modified IHA 

Source Level (Single Strike/shot SEL) .................................................... 173 dB (assumes 8 dB attenuation) 1.177 dB (assumes 8 dB attenuation) 2. 

Weighting Factor Adjustment (kHz) 3 ...................................................... Weighting override (Grebner et al. 

2016).

Weighting override (Grebner et al. 

2016). 

Number of strikes per day ....................................................................... 1,600 .............................................. 1,600. 

Number of piles per day within 24-h period ............................................ 2 ..................................................... 2. 

Propagation (xLogR) ............................................................................... 15 ................................................... 25. 

Federal Register / Vol. 85, No. 250 / Wednesday, December 30, 2020 / Notices 86541 

TABLE 1—INPUTS FOR DETERMINING DISTANCES TO CUMULATIVE PTS THRESHOLDS—Continued 

[36′′ Steel impact] 

Spreadsheet tab used 

Impact pile driving 

Initial IHA inputs Modified IHA 

Distance of source level measurement (meters) .................................... 10 ................................................... 10. 

1 Navy 2015. 

2Wood et al. 2020. 3For impact driving, the transmission loss (TL) model described above incorporated frequency weighting adjustments by applying the auditory 

weighting function over the entire 1-second SEL spectral data sets. Additional information may be found in the Federal Register notice of 

issuance of a final IHA (83 FR 30420; June 28, 2018). 

The Navy conducted SSV testing in 

September 2020 and compared the 

results to values generated by the NMFS 

User Spreadsheet in the initial IHA. Due 

to some of assumptions built into the 

model, the User Spreadsheet generates 

PTS isopleths that are potentially 

overestimates. Testing was conducted 

during impact driving of four 36-in steel 

piles both with and without bubble 

curtains and recorded values were 

inserted into the use spreadsheet. The 

acoustic data for each pile strike were 

frequency weighted for phocidae 

following NMFS guidance (2016) and 

then averaged. This resulted in an 

average phocid weighted single strike 

SEL of 177 dB re 1mPa2s at 10 m. Using 

the measured transmission loss of 25 

(far field) and an assumption of 1,600 

strikes per day, the resulting isopleth for 

phocids was 92 meters (Wood et al. 

2020). 

With NMFS’ approval, the Navy 

retroactively utilized the revised Level 

A harassment isopleth of 92 m and 

recalculated the harbor seal take. 

Distances to each taken animal were 

recorded as part of the marine mammal 

monitoring plan. This reduced the total 

take count by 29, bringing the revised 

total from 87 to 58 takes. Approximately 

33 percent of total takes occurred during 

impact driving outside the 92 m zone. 

The Navy reduced the shutdown zone 

size based on SSV data and retroactively 

recalculated take to allow for 

continuation of in-water construction 

while public comments were being 

solicited through this Federal Register 

notice (85 FR 74989; November 24, 

2020) and the modified IHA was being 

finalized. 

While vibratory is the preferred 

method of installation, impact driving 

has been needed daily due at the project 

site, largely due to sediment conditions. 

Additionally, there is a 30-m shut down 

zone (26-m injury zone) during 

vibratory driving. The PSOs reported 

that three habituated individuals 

frequently approach in close proximity 

to the piles within the 30-m shutdown 

zone during vibratory driving. Given 

these factors, the Navy concluded that 

would still be needed, even if the Level 

A harassment isopleth during impact 

driving is reduced from 217 m to 92 m. 

PSOs report that up to eight animals 

frequent the project site and are 

believed to be habituated by varying 

degrees to in-water construction 

activities. Some of them regularly enter 

and remain within Level A harassment 

and shutdown zones. Three of these 

individuals already noted above appear 

daily in the Level A harassment zone, 

while the remainder of the group of 

eight are observed less frequently (every 

other or every third day). All eight seals 

have been observed in the previous 

Level A harassment zone (217 m) on 

some occasions, with an average of five 

to six seen on each day. The Navy 

requested that NMFS authorize an 

additional four takes by Level A 

harassment per day. This would allow 

for one take per day by Level A 

harassment for each of the three daily 

visitors (three takes per day), as well as 

one additional Level A harassment take 

per day that could be incurred by any 

of the other five individuals if one of 

them entered the shutdown zone each 

day prior to detection, or if a few of 

them entered every few days. Based on 

the information provided, NMFS 

proposed that average of four harbor 

seal takes per day by Level A 

harassment would occur. 

Based on the Commission’s 

recommendation, NMFS has authorized 

increased take of harbor seal by Level A 

harassment as a precautionary measure. 

For example, one or more of the five 

less-habituated seals could become 

more habituated and join the three most 

habituated animals on daily incursions 

into a Level A harassment zone. If this 

occurred the Navy would likely exceed 

the authorized take limit NMFS put 

forth in the modified IHA proposal. 

Based upon pile installation rates 

achieved to date as reported by the 

Navy, all of the days remaining within 

the in-water work window (48) will be 

needed to complete this segment of the 

project before the current work window 

closes. As described above and based on 

the Commission’s recommendation, 

NMFS has authorized increased harbor 

take to eight per day by Level A 

harassment for an additional 384 takes 

(8 takes/day * 48 days) between now 

and January 15, 2021 when the in-water 

work window ends. The 384 takes are 

added to the initial 125 authorized takes 

for a total of 509 takes by Level A 

harassment. Most of these takes will 

occur to a smaller number of habituated 

individuals identified by the Navy. 

The total numbers of incidental takes 

by Level A and Level B harassment, 

including proposed updated harbor seal 

Level A harassment and as a percentage 

of population, is shown in Table 2 

below. The total number of takes (Level 

A and Level B harassment combined) 

has not changed because the new Level 

A takes are assumed to occur to animals 

that would have previously been 

counted as taken by Level B harassment. 

Therefore, NMFS has reduced 

authorized Level B harassment take of 

harbor seal from 5,600 in the initial IHA 

to 5,216. 

TABLE 2—TOTAL NUMBERS OF AUTHORIZED TAKES BY LEVEL A AND LEVEL B HARASSMENT AND AS A PERCENTAGE OF

POPULATION

Species 

Authorized take Percent 

population Level A Level B 

Killer whale .................................................................................................................................. 0 48 19.7 

86542 Federal Register / Vol. 85, No. 250 / Wednesday, December 30, 2020 / Notices 

TABLE 2—TOTAL NUMBERS OF AUTHORIZED TAKES BY LEVEL A AND LEVEL B HARASSMENT AND AS A PERCENTAGE OF

POPULATION—Continued 

Species 

Authorized take Percent 

population Level A Level B 

Harbor porpoise ........................................................................................................................... 0 2,728 24.3 

Steller sea lion ............................................................................................................................. 0 503 1.2 

California sea lion ........................................................................................................................ 0 7,816 2.6 

Harbor seal .................................................................................................................................. 509 5,216 n/a 

Since the total number of combined 

takes by Level A and Level B 

harassment remains unchanged (5,725) 

from the number authorized in the 

existing IHA, the rationale supporting 

our small numbers determination for the 

Hood Canal stock of harbor seal is 

applicable here and remains valid. 

Description of Mitigation, Monitoring 

and Reporting Measures 

With the exception of the revised 

shutdown provisions for harbor seals 

discussed below, the monitoring, and 

reporting measures described here are 

identical to those included in the 

Federal Register notice announcing the 

initial IHA (83 FR 30406; June 28, 2018). 

Use of Vibratory Installation—The 

Navy will employ vibratory installation 

to the greatest extent possible when 

driving steel piles to minimize high 

sound pressure levels associated with 

impact pile driving. Impact driving of 

steel piles will only occur when 

required by geotechnical conditions or 

to proof load-bearing piles driven by 

vibratory methods. 

Timing Restrictions—To minimize the 

number of fish exposed to underwater 

noise and other construction 

disturbance, in-water work will occur 

during the in-water work window 

previously described when ESA-listed 

salmonids are least likely to be present 

(USACE, 2015), July 16–January 15. 

All in-water construction activities 

will occur during daylight hours 

(sunrise to sunset) except from July 16 

to September 15, when impact pile 

driving will only occur starting 2 hours 

after sunrise and ending 2 hours before 

sunset, to protect foraging marbled 

murrelets during the nesting season 

(April 15–September 23). 

Use of Bubble Curtain—A bubble 

curtain will be employed during impact 

installation or proofing of steel piles 

where water depths are greater than 0.67 

m (2 ft). A noise attenuation device is 

not required during vibratory pile 

driving. If a bubble curtain or similar 

measure is used, it will distribute air 

bubbles around 100 percent of the piling 

perimeter for the full depth of the water 

column. Any other attenuation measure 

must provide 100 percent coverage in 

the water column for the full depth of 

the pile. The lowest bubble ring shall be 

in contact with the mudline for the full 

circumference of the ring. The weights 

attached to the bottom ring shall ensure 

100 percent mudline contact. No parts 

of the ring or other objects shall prevent 

full mudline contact. 

A performance test of the bubble 

curtain shall be conducted prior to 

initial use for impact pile driving. The 

performance test shall confirm the 

calculated pressures and flow rates at 

each manifold ring. The contractor shall 

also train personnel in the proper 

balancing of air flow to the bubblers. 

The contractor shall submit an 

inspection/performance report to the 

Navy for approval within 72 hours 

following the performance test. 

Corrections to the noise attenuation 

device to meet the performance stands 

shall occur prior to use for impact 

driving. 

Soft-Start—During impact driving the 

Navy is required to initiate sound from 

the hammer at reduced energy followed 

by a 30 second waiting period, then two 

subsequent reduced energy strike sets. 

A soft-start procedure will be used for 

impact pile driving at the beginning of 

each day’s in-water pile driving or any 

time impact pile driving has ceased for 

more than 30 minutes. 

Establishment of Shutdown Zones 

and Disturbance Zones—For all impact 

and vibratory driving of piles, shutdown 

and disturbance zones will be 

established and monitored. All 

shutdown and disturbance zones remain 

the same as those included in the initial 

IHA, except for the shutdown zone for 

harbor seals during impact driving of 

steel piles for which the modifications 

are described below. The Navy will 

focus observations within 1,000 m for 

all species during these activities but 

will record all observations. During 

impact driving of concrete piles the 

Navy will focus on monitoring within 

100 m but will record all observations. 

The Navy will monitor and record 

marine mammal observations within 

zones and extrapolate these values 

across the entirety of the Level B zone 

as part of the final monitoring report. To 

the extent possible, the Navy will record 

and report on any marine mammal 

occurrences, including behavioral 

disturbances, beyond 1,000 m for steel 

pile installation and 100 m for concrete 

pile installation. 

The shutdown zones are based on the 

distances from the source predicted for 

each threshold level. Although different 

functional hearing groups of cetaceans 

and pinnipeds were evaluated, the 

threshold levels used to develop the 

disturbance zones were selected to be 

conservative for cetaceans (and 

therefore at the lowest levels); as such, 

the disturbance zones for cetaceans 

were based on the high frequency 

threshold (harbor porpoise). The 

shutdown zones are based on the 

maximum calculated Level A 

harassment radius for pinnipeds and 

cetaceans during installation of 36-inch 

steel and concrete piles with impact 

techniques, as well as during vibratory 

pile installation and removal. These 

actions serve to protect marine 

mammals, allow for practical 

implementation of the Navy’s marine 

mammal monitoring plan and reduce 

the risk of a take. The shutdown zone 

during any non-pile driving activity will 

always be a minimum of 10 m (33 ft) to 

prevent injury from physical interaction 

of marine mammals with construction 

equipment. 

During impact pile driving of steel 

piles, the shutdown, Level A, and Level 

B zones as shown in Table 3 will be 

monitored out to the greatest extent 

possible with a focus on monitoring 

within 1,000 m for steel pile and 100 m 

for concrete pile installation. 

The Navy’s IHA allows for the 

modification of shutdown zones if 

hydroacoustic monitoring is conducted. 

The Navy conducted a SSV test since 

the initial IHA was issued and it 

indicates that the Level A harassment 

isopleth for harbor seals occurs at 92 m 

instead of 217 m. Therefore, at the 

Navy’s request and with concurrence 

from NMFS, the shutdown zone has 

been reduced from 220 m to 95 m 

during impact driving of all steel piles 

(i.e., both 36-in and 24-in steel piles). 

Federal Register / Vol. 85, No. 250 / Wednesday, December 30, 2020 / Notices 86543 

This is the only change to Level A or Level B harassment zone authorized as 

part of this modified IHA. 

TABLE 3—SHUTDOWN, LEVEL A, AND LEVEL B HARASSMENT ISOPLETHS DURING IMPACT DRIVING OF STEEL PILES

Marine mammal group Level B isopleth 

(meters) 

Level A isopleth 

(meters) 

Shutdown zone 

(meters) 

Cetaceans .................................................................................................................. 541 740 750 

Harbor Seal ................................................................................................................ 541 92 95 

Sea Lions ................................................................................................................... 541 12 15 

The shutdown, Level A, and Level B 

isopleths for all other impact driving 

remains unchanged from the notice of 

the issuance of the initial IHA (83 FR 

30406; June 28, 2018). 

The reduced size of the shutdown 

zone for harbor seals along with the 

increase in authorized take by Level A 

harassment should preclude the Navy 

from exceeding its authorized take limit 

for this species. However, even with a 

95-m shutdown zone during impact 

driving and a 30-m shutdown zone 

during vibratory driving, it is highly 

likely that the Navy will continue to 

experience frequent work stoppages due 

to frequent visits by habituated harbor 

seals. This will result in continued 

schedule delays and cost overruns and 

may potentially require an extra year of 

in-water construction activities. Given 

this information, it is not practicable for 

the Navy to shut down or delay pile 

driving activities every time a harbor 

seal is observed in a shutdown zone. 

Therefore, shutdowns will be initiated 

for harbor seals when observed 

approaching or entering the Level A 

harassment zones as described above, 

except when one or more of the three 

habituated harbor seals identified as 

daily visitors approaches or enters an 

established shutdown zone. In such 

cases, a single take by Level A 

harassment shall be recorded for each 

individual seal for the entire day and 

operations will be allowed to continue 

without interruption. The behavior of 

these three daily visitors will be 

monitored and recorded as well as the 

duration of time spent within the 

harassment zones. This information will 

be recorded individually for each of the 

three seals. If any other seals, including 

the five habituated seals identified as 

frequent visitors, approaches or enters 

into a Level A harassment zone, 

shutdown must occur. 

The minimum shutdown zone during 

any pile driving activity will always be 

a minimum of 10 m. Shutdown is 

mandatory whenever an animal is 

within 10 m of pile driving location 

regardless of the exception noted above. 

In such instances, in-water pile driving 

operations may only continue after 15 

minutes have passed or the animal is 

seen heading away from the 10-m 

shutdown zone. 

The revisions in the mitigation, 

including the shutdown exception for 

habituated harbor seals, are necessary to 

allow for the practicable completion of 

the Navy’s specified activities. Although 

the predicted Level A harassment take 

numbers are higher than initially 

projected because of the behavior of the 

eight habituated animals, the likelihood 

of take by Level A harassment is lower 

than initially expected because the 

Level A harassment zone is smaller than 

initially predicted based on the new 

SSV. NMFS has considered the new 

take numbers and revised mitigation 

measures for harbor seals and 

determined that they will effect the least 

practicable adverse impact on harbor 

seals and their habitat. Nothing has 

changed since the initial IHA for other 

species or stocks and our analysis and 

conclusions remain the same. 

Visual Monitoring—Monitoring must 

be conducted by qualified protected 

PSOs with minimum qualifications 

described in the Federal Register notice 

of the issuance of the initial IHA (83 FR 

30406; June 28, 2018). During pile 

driving, there will be three-five PSOs 

working depending on the location, site 

accessibility and line of sight for 

adequate coverage. 

Reporting—PSOs must record specific 

information as described in the Federal 

Register notice of the issuance of the 

initial IHA (83 FR 30406; June 28, 2018). 

Within 90 days after completion of pile 

driving and removal activities, the Navy 

must provide NMFS with a monitoring 

report which includes summaries of 

recorded takes and estimates of the 

number of marine mammals that may 

have been harassed. If no comments are 

received from NMFS within 30 days, the 

draft final report will constitute the final 

report. If comments are received, a final 

report addressing NMFS comments 

must be submitted within 30 days after 

receipt of comments. 

In the unanticipated event that: (1) 

The specified activity clearly causes the 

take of a marine mammal in a manner 

prohibited by the IHA (if issued), such 

as an injury, serious injury or mortality; 

(2) an injured or dead animal is 

discovered and cause of death is known; 

or (3) an injured or dead animal is 

discovered and cause of death is not 

related to the authorized activities, the 

Navy will follow the protocols 

described in the Section 3 of Marine 

Mammal Monitoring Report (Appendix 

D of the application). 

Based on our evaluation of the 

applicant’s measures in consideration of 

the increased estimated take for harbor 

seals, as well as the modified shutdown 

provisions for harbor seals, NMFS has 

re-affirmed the determination that the 

required mitigation measures provide 

the means effecting the least practicable 

impact on harbor seals and their habitat. 

Determinations 

With the exception of the revised 

harbor seal shutdown provisions, the 

Navy’s in-water construction activities 

as well as monitoring and reporting 

requirements are unchanged from those 

covered in the initial IHA. The effects of 

the activity, taking into consideration 

the added mitigation and related 

monitoring measures, remain 

unchanged, notwithstanding the 

increase to the authorized amount of 

harbor seal take by Level A harassment. 

The nature of the pile driving project 

precludes the likelihood of serious 

injury or mortality. While injury could 

occur in a small group of habituated 

animals (eight or fewer), it would likely 

be limited to PTS at lower frequencies 

where pile driving energy is 

concentrated, and unlikely to result in 

significant impacts to individual fitness, 

reproduction, or survival of these 

individuals. 

With approximately 48 in-water 

construction days remaining, NMFS has 

authorized an increase in harbor seal 

take by Level A harassment to 509. Even 

in consideration of the increased 

numbers of take by Level A harassment, 

the impacts of these exposures, as noted 

above, may result in moderate injury to 

a limited number of harbor seals but are 

not expected to accrue to the degree that 

the fitness of any individuals is 

markedly impacted. Further, given the 

86544 Federal Register / Vol. 85, No. 250 / Wednesday, December 30, 2020 / Notices 

small number of individuals potentially 

impacted in this manner, no impacts on 

annual rates of recruitment or survival 

are likely to result. 

Separately, as described previously, 

the increase in Level A harassment take 

corresponds to a commensurate 

decrease in the predicted number of 

Level B harassment and the total 

number of takes remains unchanged. 

Therefore, we re-affirm that small 

numbers of harbor seals will be taken 

relative to the population size of the 

Hood Canal stock of harbor seal. 

In conclusion, there is no new 

information suggesting that our effects 

analysis or negligible impact finding for 

harbor seals should change. 

Based on the information contained 

here and in the referenced documents, 

NMFS has reaffirmed the following: (1) 

The required mitigation measures will 

effect the least practicable impact on 

marine mammal species or stocks and 

their habitat; (2) the proposed 

authorized takes will have a negligible 

impact on the affected marine mammal 

species or stocks; (3) the proposed 

authorized takes represent small 

numbers of marine mammals relative to 

the affected stock abundances; and (4) 

the Navy’s activities will not have an 

unmitigable adverse impact on taking 

for subsistence purposes as no relevant 

subsistence uses of marine mammals are 

implicated by this action, and (5) 

appropriate monitoring and reporting 

requirements are included. 

Endangered Species Act (ESA) 

No incidental take of ESA-listed 

species is authorized or expected to 

result from this activity. Therefore, 

NMFS has determined that formal 

consultation under section 7 of the ESA 

is not required for this action. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must review our 

proposed action (i.e., the modification 

of an IHA) with respect to potential 

impacts on the human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 (IHAs with no 

anticipated serious injury or mortality) 

of the Companion Manual for NOAA 

Administrative Order 216–6A, which do 

not individually or cumulatively have 

the potential for significant impacts on 

the quality of the human environment 

and for which we have not identified 

any extraordinary circumstances that 

would preclude this categorical 

exclusion. Accordingly, NMFS has 

determined that the issuance of the 

modified IHA qualifies to be 

categorically excluded from further 

NEPA review. 

Authorization 

NMFS has issued a modified IHA to 

the for in-water construction associated 

with the SPE project on Naval Base 

Kitsap Bangor, Washington effective 

until July 15, 2021. The only change is 

an increase in the authorized take of 

harbor seal take by Level A harassment 

from 125 to 509. 

Dated: December 21, 2020. 

Donna S. Wieting, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2020–28850 Filed 12–29–20; 8:45 am] 

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