[Federal Register Volume 89, Number 19 (Monday, January 29, 2024)]
[Rules and Regulations]
[Pages 5674-5695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01558]



[[Page 5673]]

Vol. 89

Monday,

No. 19

January 29, 2024

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 217





Takes of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the Naval Magazine Indian Island 
Ammunition Wharf Maintenance and Pile Replacement Project, Puget Sound, 
Washington; Final Rule

Federal Register / Vol. 89, No. 19 / Monday, January 29, 2024 / Rules 
and Regulations

[[Page 5674]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240122-0021]
RIN 0648-BL79


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Naval Magazine Indian Island 
Ammunition Wharf Maintenance and Pile Replacement Project, Puget Sound, 
Washington

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS, upon request from the U.S. Navy (Navy), issues these 
regulations pursuant to the Marine Mammal Protection Act (MMPA) to 
govern the taking of marine mammals during the maintenance and pile 
replacement construction activities at the Ammunition Wharf at Naval 
Magazine (NAVMAG) Indian Island in Puget Sound, Washington, over the 
course of 5 years (2024 to 2029). These regulations, which allow for 
the issuance of Letters of Authorization (LOA) for the incidental take 
of marine mammals during the described activities and timeframes, 
prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
and their habitat, and establish requirements pertaining to the 
monitoring and reporting of such taking.

DATES: Effective October 1, 2024, until September 30, 2029.

ADDRESSES: A copy of the Navy's application, NMFS' final rule, and 
other supporting documents may be obtained online at https://www.fisheries.noaa.gov/action/incidental-take-authorization-taking-marine-mammals-incidental-naval-magazine-indian. In case of problems 
accessing these documents, please use the contact listed here (see FOR 
FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected 
Resources, NMFS, <a href="/cdn-cgi/l/email-protection#eba2bfbbc59b8a9e8782858eab85848a8ac58c849d"><span class="__cf_email__" data-cfemail="a2ebf6f28cd2c3d7cecbccc7e2cccdc3c38cc5cdd4">[email protected]</span></a>, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory Action

    We received an application from the Navy requesting 5-year 
regulations and authorization to incidentally take multiple species of 
marine mammals. This rule establishes a framework under the authority 
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of 
take by Level A and Level B harassment of marine mammals incidental to 
the Navy's maintenance and pile replacement construction activities at 
the Ammunition Wharf at NAVMAG Indian Island in Puget Sound, 
Washington. Please see Background below for definitions of harassment.

Legal Authority for the Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
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 for up to 5 years if, 
after notice and public comment, the agency makes certain findings and 
issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the Mitigation section), as 
well as monitoring and reporting requirements. Section 101(a)(5)(A) of 
the MMPA and the implementing regulations at 50 CFR part 217, subpart I 
provide the legal basis for issuing this rule containing 5-year 
regulations, and for any subsequent LOAs. As directed by this legal 
authority, this rule contains mitigation, monitoring, and reporting 
requirements.

Summary of Major Provisions

    The following is a summary of the major provisions of this final 
rule regarding Navy construction activities. These provisions include, 
but are not limited to:
    <bullet> Monitoring of the construction areas to detect the 
presence of marine mammals before beginning construction activities;
    <bullet> Shutdown of construction activities under certain 
circumstances to avoid injury of marine mammals;
    <bullet> Soft start for impact pile driving to allow marine mammals 
the opportunity to leave the area prior to beginning impact pile 
driving at full power; and
    <bullet> Use of bubble curtains to attenuate sound levels when 
impact driving steel piles.

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 proposed or, if the taking is limited to harassment, a notice of a 
proposed incidental take 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) 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 the 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 the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

Summary of Request

    In May 2021, NMFS received an application from the Navy requesting 
authorization to take small numbers of eight species of marine mammals 
incidental to construction activities at the Ammunition Wharf at NAVMAG 
Indian Island. The Navy requested regulations that would establish a 
process for authorizing such take via an LOA. NMFS reviewed the Navy's 
application, and sent initial questions regarding the application to 
the Navy on October 5, 2021. The Navy addressed the questions and 
submitted a revised LOA application on March 24, 2022. After additional 
questions were sent by NMFS, the Navy submitted another revised 
application on May 13, 2022, and the revised application was deemed 
adequate and complete on June 9, 2022. The application was published 
for public review and comment on August 4, 2022 (87 FR 47722). 
Following publication of the application, the Navy delayed the project 
start date by 1 year. We published a notice of the proposed rulemaking 
in the Federal Register on October 30, 2023 (88 FR 74113). There

[[Page 5675]]

are no changes from the proposed to the final rulemaking.
    The regulations will be valid for 5 years, from October 1, 2024, 
until September 30, 2029, and allow NMFS to authorize the Navy to take 
eight species of marine mammals by Level B harassment and, 
additionally, one of these species by Level A harassment, incidental to 
construction activities related to the maintenance and pile replacement 
project at the Ammunition Wharf at NAVMAG Indian Island in Puget Sound, 
Washington. Neither the Navy nor NMFS expect serious injury or 
mortality to result from this activity.

Description of Activity

Overview

    The Navy plans to replace defective structural concrete and fender 
piles as well as conduct maintenance and repair activities on the 
Ammunition Wharf at NAVMAG Indian Island. Maintaining this wharf 
structure is vital to sustaining the Navy's mission and ensuring 
readiness. The Navy plans to replace up to 118 structural concrete 
piles or fender piles, conduct maintenance, and engage in repair 
activities over a 7-year period on the Ammunition Wharf. However, the 
LOA may only be valid for 5 years. The Navy plans to conduct necessary 
work, including impact and vibratory pile driving, to replace and 
maintain the wharf structure. Under the 5-year rule, up to 110 
structurally unsound structural piles or fender piles will be replaced. 
Structural concrete piles will be replaced with 24-inch concrete piles 
and old fender piles will be replaced with 14-inch steel H piles or 
18.75-inch composite piles. Up to eight steel piles may also be 
installed in addition to the structural concrete piles if necessary. 
The 2 years following the expiration of the rule will consist of 
removal and installation of concrete piles, and maintenance and repair 
work. The Navy will request incidental take authorizations as necessary 
for the final 2 years of work.

Dates and Duration

    The regulations and LOA will be valid for a period of 5 years from 
October 1, 2024, until September 30, 2029. All pile driving will be 
conducted during the prescribed in-water work window of October 1 to 
January 15 to avoid conducting activities when juvenile salmonids are 
most likely to be present. A conservative estimate of annual pile 
driving days over the duration of the 5-year LOA is based on the 
assumption that pile driving rates will be relatively slow and will 
take approximately 24 days per year with up to 22 concrete piles or 
fender piles and up to 2 steel piles installed per year. 
Conservatively, one concrete pile will be installed per day using 
jetting followed by proofing with an impact hammer. There may be extra 
days for additional proofing or weather/equipment delays. Actual daily 
production rates may be higher (often two piles are installed in a 
day), resulting in fewer actual pile driving days.

Specific Geographic Region

    NAVMAG Indian Island is located near Port Hadlock in Jefferson 
County, Washington, southeast of Port Townsend, at the northeast corner 
of the Olympic Peninsula (figure 1). The island is approximately 8 
kilometers (km) long and 2 km wide, and comprises approximately 11 km 
square (km\2\). NAVMAG Indian Island is located between Port Townsend 
Bay and Kilisut Harbor. The Federal Government owns the island and 
provides an easement on a small portion of the southern extent of the 
island to Washington State Department of Transportation for access to 
Marrowstone Island along State Route 116. NAVMAG Indian Island is the 
West Coast ammunition ordnance storage center supporting the U.S. Navy 
Pacific Fleet.
    NAVMAG Indian Island occupies approximately 19 km of shoreline 
within Port Townsend Bay. There are two marine structures located at 
NAVMAG Indian Island, the Ammunition Wharf and the Small Craft Pier, 
but only the Ammunition Wharf activities are addressed in this rule. 
Its primary mission is to load, offload, and provide storage and 
logistics management for ordnance used on Navy vessels.

[[Page 5676]]

[GRAPHIC] [TIFF OMITTED] TR29JA24.000

Detailed Description of the Specified Activity

    NAVMAG Indian Island is the West Coast ammunition ordnance storage 
center supporting the U.S. Navy Pacific Fleet. Its primary mission is 
to load, offload, and provide storage and logistics management for 
ordnance used on Navy vessels. Construction of the Ammunition Wharf was 
completed in 1979, and there are a total of 1,783 piles in the 
Ammunition Wharf: 1,391 structural piles, 306 fender piles and 86 
Operations Building piles.
    The Ammunition Wharf was originally constructed using precast 
concrete piles. As a result of the steam curing process used at that 
time, an unknown quantity of piling is susceptible to a potentially 
catastrophic condition called Delayed Ettringite Formation (DEF). DEF 
is a result of high early temperatures in the concrete, which prevents 
the normal formation of ettringite. DEF occurs rapidly and without 
warning.
    The Navy schedules inspections on waterfront facilities that 
usually occur every 3 years, but due to DEF at the Ammunition Wharf, 
inspections for that structure occur every two years. Based on the most 
recent inspection in 2021, there are 161 piles (158 under Ammunition 
Pier and three under the Operations Building at Ammunition Wharf) with 
some appreciable level of DEF damage (most or all of those piles will 
be replaced). More piles with DEF damage may be detected and therefore 
may need to be replaced over the duration of the LOA.
    Table 1 shows the details of the construction activities which are 
described below in greater detail.

[[Page 5677]]



   Table 1--Project Components for Pile Replacement for the Ammunition
                                  Wharf
------------------------------------------------------------------------
Wharf structure (in-water construction)        Construction details
------------------------------------------------------------------------
Total Piles............................  Up to 118 piles installed over
                                          5 years (including up to 8
                                          steel piles, with the
                                          remainder concrete).
Quantity of concrete piles (24-inch)...  Up to 22 per year over 5 years.
Quantity of permanent steel piles (36-   Up to two per year (Maximum of
 inch).                                   eight) over 5 years (Currently
                                          no steel pile installation is
                                          planned, installation would
                                          depend on future pile
                                          inspections).
Pile Removal Method....................  Cutting.
Pile Installation Method...............  Jetting and impact driving of
                                          concrete piles; Vibratory and
                                          impact driving of steel piles.
                                          No simultaneous pile driving
                                          will occur.
Quantity of piles above -30 feet MLLW..  All.
Maximum number of piles driven per day   Two concrete piles per day.
 (approximately).                        One steel pile per day.
Total duration of impact pile driving..  No more than 45 minutes per day
                                          (mean = 10 minutes for
                                          concrete piles; 15 minutes for
                                          steel piles).
Maximum duration of vibratory pile       No more than 30 minutes (mean =
 driving.                                 10 minutes per steel pile).
Marine Construction Duration (including  3.5 months per year (In water
 in-water restrictions).                  work window: October 1 through
                                          January 15).
------------------------------------------------------------------------

Removal of Existing Piles
    After demolition of the deck portions of the wharf located above 
the waterline, three methods of pile removal (cutting/chipping, 
clamshell removal, and direct pull) may be used. However, hydraulic 
cutting will be the primary method of pile removal due to working under 
the wharf and the DEF damage to the piles. In some cases, piles may be 
cut at or below the mudline, with the below-mudline portion of the pile 
left in place. None of these pile removal activities are anticipated to 
result in take of marine mammals; therefore, they are not discussed 
further beyond the brief elaboration on jetting and pile cutting 
provided below.
Pile Installation
    Three methods of pile installation for concrete and steel piles 
will be used (vibratory, jetting, and impact) depending on the type of 
pile and site conditions. Only one pile will be installed at a time; no 
simultaneous pile driving will occur. These methods are described 
below.
    The primary methods of concrete pile installation will be water 
jetting to within 3 meters (m) of final depth and then impact pile 
driving to set or proof the final 3 m. Water jetting aids the 
penetration of a pile into a dense sand or sandy gravel stratum. Water 
jetting utilizes a carefully directed and pressurized flow of water at 
the pile tip, which disturbs a ring of soils directly beneath it. The 
jetting technique liquefies the soils at the pile tip during pile 
placement, reducing the friction and interlocking between adjacent sub 
grade soil particles around the water jet. For load-bearing structures, 
an impact hammer is typically required to strike a pile a number of 
times to ensure it has met the load-bearing specifications; this is 
referred to as ``proofing.'' Load-bearing piles installed with water 
jetting will still need to be proofed with an impact pile driver.
    A vibratory hammer will be used to install the structural steel 
piles and fender piles. The primary method of pile installation for 
steel piles will be vibratory to within 3 m of final depth and then 
impact pile driving to set or proof the final 3 m. The vibratory pile 
driver method is a technique that may be used in pile installation 
where the substrate allows. Use of this technique will be limited in 
very hard substrates. This process begins by placing a choker cable 
around a pile and lifting it into vertical position with a crane. The 
pile is then lowered into position and set in place at the mudline. The 
pile is held steady while the vibratory driver installs the pile to the 
required tip elevation. In some substrates, a vibratory driver may be 
unable to advance a pile until it reaches the required depth. In these 
cases, an impact hammer will be used to advance the pile to the 
required depth.
    Impact hammers will be used to proof concrete piles that have been 
jetted to depth or steel piles that have been driven using the 
vibratory method. Proofing involves impact pile driving to determine if 
the pile has been driven to the proper load-bearing specifications 
within the substrate. Proofing of concrete piles at the Ammunition 
Wharf in 2015 and 2016 required 200 to 600 strikes per pile to complete 
(Navy, 2016).
    Impact hammers have a heavy piston that moves up and down striking 
the top of the pile and driving the pile into the substrate from the 
downward force of the hammer. Impact hammer pile proofing can typically 
take a minute or less to 30 minutes depending on pile type, pile size, 
and conditions (i.e., bedrock, loose soils, etc.) to reach the required 
tip elevation.
    The Navy states that piles will be advanced to the extent 
practicable with a vibratory driver and only impact driven when 
required for proofing or when a pile cannot be advanced with a 
vibratory driver due to hard substrate conditions.
    Existing piles that are structurally sound may require additional 
repair activities. Such activities could include wetwell repair; 
recoating of piles and mooring fittings; installation or replacement of 
passive cathode protection systems; repair and replacement of pile 
caps; concrete repair; mooring foundation and substructure repair; 
replacement of components (e.g., hand rails, safety ladders, light 
poles); and rewrapping or replacement of steel cable straps on 
dolphins. These repairs are described in greater detail in the Navy's 
application but will not result in the take of marine mammals and are 
not discussed further.
    Operation of the following equipment types is not reasonably 
expected to result in take of marine mammals and will not be discussed 
further beyond the brief summaries provided below:
    <bullet> Jetting produces much lower sound levels (approximately 
147.5 decibel (dB) Root Mean Square (RMS); NAVFAC SW, 2020) than 
vibratory pile driving 166 dB RMS (Navy, 2015). The sounds produced by 
jetting are of similar frequencies to the sounds produced by vessels, 
and are anticipated to diminish to background noise levels (or be 
masked by background noise levels) in Port Townsend Bay.
    <bullet> Hydraulic cutting will be used be used to assist with 
removal of piles. Similar to jetting, the sounds produced by cutting 
are of similar frequencies to the sounds produced by vessels (NAVFAC 
SW, 2020), and are anticipated to diminish to background noise levels 
(or be masked by background noise levels) in Port Townsend Bay 
relatively close to the Ammunition Wharf. Cutting of 24-inch concrete 
piles also produces much lower sound levels (approximately 141.4 dB 
RMS; (NAVFAC SW, 2020)) than vibratory pile driving 166 dB RMS (Navy, 
2015).
    Mitigation, monitoring, and reporting measures are described in 
detail later in

[[Page 5678]]

this document (please see Mitigation and Monitoring and Reporting).

Comments and Responses

    A notice of NMFS' proposed rulemaking to the Navy was published in 
the Federal Register on October 30, 2023 (88 FR 74113). That proposed 
rule described, in detail, the Navy's activities, the marine mammal 
species that may be affected by the activities, and the anticipated 
effects on marine mammals. In that proposed rule, we requested public 
input on the request for authorization described therein, our analyses, 
the proposed authorization, and any other aspect of the notice of 
proposed rulemaking, and requested that interested persons submit 
relevant information, suggestions, and comments. This proposed rule was 
available for a 30-day public comment period.
    NMFS received three letters from private citizens during the public 
comment period. These comments were outside the scope of this rule. 
There are no changes from the proposed to the final rulemaking as a 
result of these comments.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions instead of reprinting the information. Additional 
information regarding population trends and threats may be found in 
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks that could occur during this 
activity, and summarizes information related to the population or 
stock, including regulatory status under the MMPA and Endangered 
Species Act (ESA) and potential biological removal (PBR), where known. 
PBR is defined by the MMPA as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population (as described in NMFS' SARs). While no serious 
injury or mortality is expected to occur, PBR and annual serious injury 
and mortality from anthropogenic sources are included here as gross 
indicators of the status of the species or stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All stocks managed under the MMPA in this region 
are assessed in NMFS' U.S. Pacific Marine Mammal Stock Assessment 
Report. All values presented in table 2 are the most recent available 
at the time of publication and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                   Table 2--Marine Mammal Species \4\ Likely To Occur Near the Project Area That May be Taken by the Navy's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray Whale......................  (Eschrichtius robustus)  Eastern N Pacific......  -,-, N              26,960 (0.05, 25,849,         801        131
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Humpback Whale..................  Megaptera novaeangliae.  Central America/         E, D, Y             1,496 (0.171, 1,284,          3.5       14.9
                                                                Southern Mexico--                            2021).
                                                                California-Oregon-
                                                                Washington.
                                                               Mainland Mexico--        T, D, Y             3,477 (0.101, 3,185,           43         22
                                                                California-Oregon-                           2018).
                                                                Washington.
                                                               Hawaii.................  -, -, N             11,278 (0.56, 7,265,          127      27.09
                                                                                                             2020).
    Minke Whale.....................  Balaenoptera             CA/OR/WA...............  -, -, N             915 (0.792, 509, 2018)        4.1     >=0.59
                                       acutorostrata.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises):
    Dall's Porpoise.................  Phocoenoides dalli.....  CA/OR/WA...............  -, -, N             16,498 (0.61, 10,286,          99     >=0.66
                                                                                                             2019).
    Harbor Porpoise.................  Phocoena phocoena......  Washington Inland        -, -, N             11,233 (0.37, 8,308,           66      >=7.2
                                                                Waters.                                      2015).
Family Delphinidae:
    Killer Whale....................  Orcinus orca...........  West Coast Transient...  -, -, N             349 (N/A, 349, 2018)..        3.5        0.4
                                                               Eastern North Pacific    E, D, Y             74 (N/A, 74, 2021)....       0.13      >=0.4
                                                                Southern Resident.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    CA Sea Lion.....................  Zalophus californianus.  U.S....................  -, -, N             257,606 (N/A, 233,515,      14011       >320
                                                                                                             2014).
    Steller Sea Lion................  Eumetopias jubatus.....  Eastern................  -, -, N             43,201 (N/A, 43,201,        2,592        112
                                                                                                             2017).
Family Phocidae (earless seals):

[[Page 5679]]

 
    Harbor Seal.....................  Phoca vitulina.........  Washington Northern      -, -, N             11,036 \5\ (UNK, UNK,         UND        9.8
                                                                Inland Waters.                               1999).
    Northern Elephant Seal..........  Mirounga angustirostris  CA Breeding............  -, -, N             187,386 (NA, 85,369,         5122       13.7
                                                                                                             2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\5\ The abundance estimate for this stock is greater than 8 years old and is therefore not considered current. PBR is considered undetermined for this
  stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these
  represent the best available information for use in this document.

    As indicated above, all 10 species (with 13 managed stocks) in 
table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. However, no take is 
authorized for killer whales and humpback whales for the reasons 
provided in the Federal Register notice for the proposed rule (88 FR 
74113, October 30, 2023). No take of these species is anticipated or 
will be authorized by NMFS and we do not discuss them further.
    A detailed description of the species likely to be affected by the 
Navy's construction activities, including brief introductions to the 
species and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed rule (88 FR 74113, October 30, 2023). Since that time, we are 
not aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to the NMFS website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). Note that no direct measurements of 
hearing ability have been successfully completed for mysticetes (i.e., 
low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 dB 
threshold from the normalized composite audiograms, with the exception 
for lower limits for low-frequency cetaceans where the lower bound was 
deemed to be biologically implausible and the lower bound from Southall 
et al. (2007) retained. Marine mammal hearing groups and their 
associated hearing ranges are provided in table 3.

           Table 3--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al,. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

[[Page 5680]]

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the Navy's construction 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the project area. The notice of the 
proposed rulemaking (88 FR 74113, October 30, 2023) included a 
discussion of the effects of anthropogenic noise on marine mammals and 
the potential effects of underwater noise from the Navy's construction 
activities on marine mammals and their habitat. That information and 
analysis is referenced in this final rule and is not repeated here; 
please refer to the notice of the proposed rulemaking (88 FR 74113, 
October 30, 2023).

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
that may be authorized under this final rule, which will inform both 
NMFS' consideration of ``small numbers,'' and the negligible impact 
determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of 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).
    Authorized takes will be primarily by Level B harassment, as use of 
the acoustic sources (i.e., vibratory and impact pile driving 
equipment) has the potential to result in disruption of behavioral 
patterns for individual marine mammals. There is also some potential 
for auditory injury (Level A harassment) to result, primarily for 
harbor seals (phocids) because these animals are known to occur in 
close proximity to the pile driving locations. Auditory injury is 
unlikely to occur for other hearing groups or species. The required 
mitigation and monitoring measures are expected to minimize the 
severity of the taking to the extent practicable.
    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below, we describe how the 
authorized take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential takes, additional 
information that can qualitatively inform take estimates is also 
sometimes available (e.g., previous monitoring results or average group 
size). Below, we describe the factors considered here in more detail 
and present the estimated take numbers.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS sound pressure level (SPL)) 
of 120 dB (referenced to 1 micropascal (re 1 [mu]Pa)) for continuous 
(e.g., vibratory pile-driving, drilling) and above RMS SPL 160 dB re 1 
[mu]Pa for non-explosive impulsive (e.g., seismic airguns) or 
intermittent (e.g., scientific sonar) sources.
    The Navy's planned activity includes the use of continuous 
(vibratory hammer source type) and impulsive (impact hammer) sources, 
and therefore the RMS SPL thresholds of 120 and 160 dB re 1 [mu]Pa are 
applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). The Navy's 
planned activity includes the use of impulsive (impact hammer) and non-
impulsive (vibratory hammer) sources.
    These thresholds are provided in the table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS Onset Acoustic Thresholds * (received level)
             Hearing Group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB..
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB..
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.

[[Page 5681]]

 
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss (TL) 
coefficient.
    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and TL coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the project. Marine 
mammals are expected to be affected by sound generated by the primary 
components of the project (i.e., impact and vibratory pile driving).
    Data from prior pile driving projects at the Naval Base Kitsap 
Bangor and Bremerton waterfronts were reviewed in the analysis. The 
representative sound pressure levels used in the analysis are presented 
in table 5.
    For vibratory pile driving distances to the PTS thresholds, the TL 
model described above incorporated the auditory weighting functions for 
each hearing group using a single frequency as described in the NMFS 
Spreadsheet (NMFS, 2018). For impact pile driving distances to the PTS 
thresholds for 36-inch steel pile and 24-inch concrete pile, the TL 
model described above incorporated frequency weighting adjustments by 
applying the auditory weighting function over the entire 1-second 
(sound exposure level) SEL spectral data sets from impact pile driving. 
If a source level for a particular pile size was not available, the 
next highest source level was used to produce a conservative estimate 
of areas above threshold values.
    In order to calculate distances to the Level A harassment and Level 
B harassment thresholds for the methods and piles being used in this 
project, the Navy used acoustic monitoring data from various similar 
locations to develop source levels for the different pile types, sizes, 
and methods planned for use (table 5).

                         Table 5--Source Levels for Removal and Installation Activities
----------------------------------------------------------------------------------------------------------------
                                                                               Peak \1\ (dB
                                               Pile Diameter  RMS \1\ (dB re       re 1        SEL \2\ (dB re 1
                                                 (inches)      1 [micro]Pa)     [micro]Pa)     [micro]Pa\2\ sec)
----------------------------------------------------------------------------------------------------------------
Impact Installation:
    Concrete................................              24             174             189                 167
    Steel Pipe \2\..........................              36             192             211                 184
Vibratory Removal:
    Steel Fender............................              14             150             N/A                 N/A
Vibratory Installation:
    Steel Fender............................              14             150             N/A                 N/A
    Composite Fender........................           18.75             150             N/A                 N/A
    Steel pipe..............................              36             167             N/A                 N/A
----------------------------------------------------------------------------------------------------------------
Source: Navy, 2015; Navy, 2017, 2018, NAVFAC SW, 2020; WDOT, 2017.
Key: N/A = not applicable.
\1\ Sound pressure levels are presented for a distance of 10 m from the pile. RMS and Peak levels are relative
  to 1 [mu]Pa and cumulative SEL levels are relative to 1 [mu]Pa2 sec.
\2\ Values modeled for impact driving 36-inch steel piles will be reduced by 8 dB for noise exposure modeling to
  account for attenuation from a bubble curtain.

    A bubble curtain will be used to minimize the noise generated by 
impact driving of steel pipe piles. Note that impact pile driving of 
steel piles will only occur if it is necessary to install the 36-inch 
steel piles and none are currently planned to be installed. If steel 
piles became necessary then a maximum of 2 piles will be installed 
within the 5-year effective period of the LOA. The bubble curtain is 
expected to attenuate impact pile driving sound levels an average of 8 
dB based on past performance during similar Navy projects in Puget 
Sound (Navy, 2015); therefore, 8 dB was subtracted from values in table 
5 prior to modeling the behavioral and PTS thresholds for impact pile 
driving steel pipe piles. For the cumulative SEL PTS thresholds, 
auditory weighting functions were applied to the attenuated 1-second 
SEL spectra for steel pipe piles.

Level B Harassment Zones

    TL is the decrease in acoustic intensity as an acoustic pressure 
wave propagates out from a source. TL parameters vary with frequency, 
temperature, sea conditions, current,

[[Page 5682]]

source and receiver depth, water depth, water chemistry, and bottom 
composition and topography. The general formula for underwater TL is:

TL = B * Log10 (R1/R2),

where

TL = transmission loss in dB,
B = transmission loss coefficient (for practical spreading equals 
15),
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement.

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most appropriate 
assumption for the Navy's activities. The Level B harassment zones and 
areas for the Navy's activities are shown in table 6.

 Table 6--Calculated Radial Distance(s) to Underwater Marine Mammal Vibratory Pile Driving Noise Thresholds and
                                   Areas Encompassed Within Threshold Distance
----------------------------------------------------------------------------------------------------------------
                                                 Behavioral disturbance-- Level B harassment (120 dB RMS)
                  Type                  ------------------------------------------------------------------------
                                             Radial distance to threshold        Area encompassed by threshold
----------------------------------------------------------------------------------------------------------------
14-inch steel H fender pile (vibratory)  1,000 m............................  1.8 km\2\.
18.75-in composite fender pile           1,000 m............................  1.8 km\2\.
 (vibratory).
36-inch steel (vibratory)..............  13.6 km............................  54 km\2\.
----------------------------------------------------------------------------------------------------------------

Level A Harassment Zones

    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an overestimate of 
potential take by Level A harassment. However, this optional tool 
offers the best way to estimate isopleth distances when more 
sophisticated modeling methods are not available or practical. For 
stationary sources such as impact and vibratory driving, the optional 
User Spreadsheet tool predicts the distance at which, if a marine 
mammal remained at that distance for the duration of the activity, it 
would be expected to incur PTS.
    The isopleths generated by the User Spreadsheet used the same TL 
coefficient as the Level B harassment zone calculations (i.e., the 
practical spreading value of 15). Inputs used in the User Spreadsheet 
(e.g., number of piles per day, duration and/or strikes per pile) are 
presented in table 7. The maximum RMS SPL/SEL SPL and resulting 
isopleths are reported below in table 8 and table 9. The maximum RMS 
SPL value was used to calculate Level A harassment isopleths for 
vibratory pile driving while the single strike SEL SPL value was used 
to calculate Level A harassment isopleths for impact pile driving 
activities. Note that Peak PTS thresholds were smaller for all pile 
sizes and hearing groups compared to SEL SPL values.

                                          Table 7--Parameters of Pile Driving Activity Used in User Spreadsheet
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                   Removal or
                                                                                                             installation of steel
                                      24-Inch concrete            36-Inch steel             Fender pile         14-inch steel or        36-Inch steel
                                                                                                             18.75-inch composites
--------------------------------------------------------------------------------------------------------------------------------------------------------
Type of installation/removal...  Impact...................  Impact...................  Vibratory...........  Vibratory............  Vibratory.
Source Level...................  167 SEL/189 PK...........  184 SEL/211 PK...........  144 RMS.............  150 RMS..............  192 RMS.
Weighting Factor Adjustment      2........................  2........................  2.5.................  2.5..................  2.5.
 (kHz).
(a) Number of strikes/pile.....  1,000....................  500......................
(a) Activity Duration (min)      .........................  .........................  10..................  10...................  45.
 within 24-h period.
Propagation (xLogR)............  15.......................  15.......................  15..................  15...................  15.
Piles per day..................  2........................  1........................  2...................  2....................  1.
Distance of source level         10.......................  10.......................  10..................  10...................  10.
 measurement (meters).
--------------------------------------------------------------------------------------------------------------------------------------------------------


       Table 8--Calculated Radial Distance(s) to Impact Pile Driving Noise Thresholds for Level A and Level B Harassment and Associated Areas \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Level A harassment          Level A harassment cetaceans        Behavioral disturbance Level B
                                                             pinnipeds        ---------------------------------------            (160 dB RMS)
                                                    --------------------------                                       -----------------------------------
                                                                                                                                        Area encompassed
                                                     Harbor seal    Sea lion      LF (m)       MF (m)       HF (m)     Radial distance    by threshold
                                                         (m)          (m)                                             to threshold (m)       (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
24-inch concrete...................................           29            2           54            2           64                86              0.02

[[Page 5683]]

 
36-inch steel......................................          182           13          243            8          256               398               0.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Calculations based on SELCUM threshold criteria shown in Table 4 and source levels shown in Table 5.


      Table 9--Calculated Radial Distance(s) to Vibratory Pile Driving Noise Thresholds for Level A and Level B Harassment and Associated Areas \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Level A harassment          Level A harassment cetaceans        Behavioral disturbance Level B
                                                             pinnipeds        ---------------------------------------            (120 dB RMS)
                                                    --------------------------                                       -----------------------------------
                                                                                                                                        Area encompassed
                                                     Phocids (m)    Otariids      LF (m)       MF (m)       HF (m)     Radial distance    by threshold
                                                                      (m)                                               to threshold         (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-inch steel H fender pile (vibratory)............           <1           <1           <1           <1           <1           1,000 m               1.8
18.75-in composite fender pile (vibratory..........           <1           <1           <1           <1           <1           1,000 m               1.8
36-inch steel (Vibratory)..........................            4           <1            7           <1           11           13.6 km                54
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Vibratory pile driving would only occur if it is necessary to install 36 inch steel piles, none are currently planned to be installed. If steel
  piles became necessary then only up to eight would be installed within the 5 years of the LOA.

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information that 
will inform the take calculations. We describe how the information 
provided above is brought together to produce a quantitative take 
estimate for each species.

Take Estimation

    To quantitatively assess potential exposure of marine mammals to 
noise levels from pile driving over the NMFS threshold guidance, the 
following equation was first used to provide an estimate of potential 
exposures within estimated harassment zones:
    Exposure estimate = N x Level B harassment zone (km\2\) x maximum 
days of pile driving per year where N = density estimate (animals per 
km\2\) used for each species.
    Note that the area of the harassment zone is truncated by land 
masses surrounding the area (i.e., Whidbey Island, Port Townsend 
mainland, and Indian Island). Densities are shown in table 10.
    In addition, local occurrence data from prior monitoring efforts, 
discussed in the next paragraph, was used as a supplement to estimate 
potential occurrence of harbor seals within the Level A harassment 
zones. This method is conservative in providing estimates of potential 
exposure above the total given using the aforementioned equation that 
we equate here with Level A harassment.
    For harbor seals, which were the primary species found within 1,000 
m of the Ammunition Wharf during pile driving monitoring from 2014 to 
2016 and 2020 (Navy, 2014, 2016, 2021), a daily rate of harbor seal 
occurrence was determined for vibratory installation of fender piles 
for the Level A harassment zones. Only harbor seals were observed 
during pile driving monitoring (Navy, 2016, 2020) and weekly marine 
mammal surveys (2022) at NAVMAG Indian Island Ammunition Wharf with the 
exception of a single harbor porpoise and a single California sea lion. 
The site-specific data was used to estimate take only for harbor seals 
at a rate of 0.5 seals per day from concrete impact driving and eight 
seals per day from steel impact driving, based on the different 
estimated zone sizes.
    During the site-specific monitoring efforts discussed above, only 
harbor seals were observed during pile driving monitoring (Navy, 2016, 
2020) and weekly marine mammal surveys (2022) at NAVMAG Indian Island 
Ammunition Wharf, with the exception of a single harbor porpoise and a 
single California sea lion. For species other than harbor seal--for 
which use of the available density information and the equation given 
above provide low calculated take estimates (described in species-
specific sections below)--it was assumed between one (i.e., gray whale, 
minke whale) and three animals will be taken over the duration of the 
rule (by Level B harassment only). For California sea lions, Steller 
sea lions, and northern elephant seals it was assumed that there will 
be one take per year from concrete/fender pile installation (by Level B 
harassment only). It was also assumed that there will be one additional 
take per year by Level B harassment during steel pile installation for 
the northern elephant seal. In contrast to pinniped species, Dall's 
porpoises and harbor porpoises often occur in pods of two to four 
porpoises. Therefore, it was assumed that there will be up to three 
takes per year by concrete/fender pile installation for each species 
with three additional takes per year only for Dall's porpoises per year 
due to steel pile installation. All takes are assumed to be by Level B 
harassment only, based on the assumed rarity of occurrence and the 
Navy's plan to implement shutdown procedures for all cetaceans at the 
estimated Level B harassment distance.
    The density estimates given in table 10 come from the Pacific 
Navy's Marine Species Density Database (NMSDD), Naval Facilities 
Engineering Systems Command (NAVFAC) Pacific Technical Report (Navy, 
2020) and Smultea et al. (2017) (for harbor porpoise). The seasonal 
density value for each species during the in-water work window at each 
site was used in the marine mammal take assessment calculation.
    Note that the largest Level B harassment zone will be generated 
during vibratory driving. The Level B harassment zone for an impact 
hammer will be encompassed by the larger Level B harassment zone from 
the vibratory driver. Impact pile driving was assumed

[[Page 5684]]

to be one pile per day but actual daily production rates may be higher 
with a maximum of two per day, resulting in fewer in-water pile driving 
days. It was assumed that 22 days of concrete pile installation will 
occur. This is a conservative estimate based on past work at NAVMAG. 
There will be up to 22 concrete piles (24-in) driven over the maximum 
of 22 days per year over 5 years with up to two 24-inch concrete piles 
driven per day (1 to 2 piles installed per day; mean of 1.8 piles 
installed per day) depending on accessing the wharf deck, weather, 
harbor seal delays, or equipment issues. Note that this conservative 
estimate of pile driving days is used solely to assess the number of 
days during which pile driving could occur if production was delayed 
due to equipment failure, safety, etc. In a real construction 
situation, pile driving production rates will be maximized when 
possible.

        Table 10--Marine Mammal Species Densities in Project Area
------------------------------------------------------------------------
                                                   Density (October-
           Species            Region location  February) * Animals km\2\
 
------------------------------------------------------------------------
Gray whale..................  North Puget      Zero (within 1,000 m).\1\
                               Sound.          0.00048 (Fall and
                                                Winter).\2\
Minke Whale.................  Puget Sound....  Zero (within 1,000 m).\1\
                                               0.00045 (Annual).\2\
Harbor porpoise.............  North Puget      1.16 (Annual).\2\ \3\
                               Sound.
Dall's porpoise.............  Puget Sound....  0.00045 (Annual).\2\
Steller sea lion............  Puget Sound....  Zero (within 1,000 m).\2\
                                               0.0478 (Fall and
                                                Winter).\1\
California sea lion.........  Puget Sound....  Zero (within 1,000 m).\1\
                                               0.2211 (Fall).\2\
                                               0.1100 (Winter).\2\
Northern elephant seal......  Puget Sound....  Zero (within 1,000 m).\1\
                                               0.0000 (Annual).\2\
Harbor Seal.................  North Puget      14-18.75-inch Fender Pile
                               Sound.           Driving.\1\
                                               Within 10 m = 0.0 seals/
                                                day (Level A zone).
                                               Within 1,000 m = 15.54
                                                seals per day (Level B
                                                harassment zone).
                                               24-inch Concrete Impact
                                                Pile Driving.\1\
                                               Within 29 m = 0.5 seals/
                                                day (Level A harassment
                                                zone).
                                               Combine with the larger
                                                fender pile vibratory
                                                Level B harassment zone.
                                               36-inch Steel Impact Pile
                                                Driving.\1\
                                               Within 182 m = 8 seals/
                                                day (Level A harassment
                                                zone).
                                               Combine with the larger
                                                vibratory zone for Level
                                                B harassment.
                                               36-inch Steel Vibratory
                                                Pile Driving.
                                               Within 10 m = 0.0 seals/
                                                day (Level A zone).
                                               Within 13.6 km (54 km\2\)
                                                = 2.83 seals/km\2\.
------------------------------------------------------------------------
* 13.6 km with an area of 54 km\2\ (a large part of the area was
  truncated by land masses) was used for 36-inch steel pile vibratory
  installation.
Sources: \1\ Navy, 2014, 2016; 2021; \2\ NMSDD (Navy, 2020), \3\ Smultea
  et al. (2017).

    It is important to note that the successful implementation of 
mitigation methods (i.e., visual monitoring and the use of shutdown 
zones) is expected to result in no Level A harassment exposure to all 
marine mammals except harbor seals because the injury zones and 
behavioral zones will be monitored during pile driving. Harbor seal 
Level A harassment exposure will be limited to the smallest extent 
practicable. The exposure assessment estimates the numbers of 
individuals potentially exposed to the effects of pile driving noise 
exceeding NMFS established thresholds. Results from acoustic impact 
exposure assessments should be regarded as conservative overestimates 
that are strongly influenced by limited marine mammal data, the 
assumption that marine mammals will be present during pile driving, and 
the assumptions that the maximum number of piles will be extracted or 
installed.
Gray Whale
    Most gray whales in Puget Sound utilize the feeding areas in 
northern Puget Sound around Whidbey Island and in Port Susan in March 
through June with a few individual sightings occurring year-round that 
are not always associated with feeding areas. Therefore, gray whales 
are included in the take authorization. The majority of in-water work 
will occur during the fall and winter when gray whales are less likely 
to be present in Puget Sound. Therefore, based on a low probability of 
occurrence within the vibratory harassment zones, the Navy used the 
formula described above to calculate estimated exposures. The formula 
estimated zero takes per year; however, due to the uncertainty of gray 
whale movements and the large area of exposure during vibratory driving 
of 36-inch steel piles, the Navy has requested and NMFS has assumed 
take by Level B harassment at a rate of one animal per year.
    To protect gray whales from noise impacts, the Navy will implement 
a shutdown if protected species observers (PSO) see gray whales 
approaching or within any harassment zone. A PSO will be stationed at 
locations from which the injury zone and behavioral zone for impact and 
vibratory pile driving are visible and will implement shutdown if a 
whale approaches or enters either zone. With the implementation of 
monitoring, even if a whale enters an injury zone, shutdown would occur 
before cumulative exposure to noise levels that would result in PTS 
could occur. Because pile driving will be shut down if whales are in 
the injury zone, no Level A harassment take has been requested or 
authorized by NMFS. In summary, the Navy has requested, and NMFS has 
authorized one take of gray whale by Level B harassment each year for 
the duration of the 5-year LOA.
Minke Whale
    Minke whales in Washington inland waters typically feed in the 
areas around the San Juan Islands and along banks in the Strait of Juan 
de Fuca. Minke whales are infrequent visitors to Puget Sound, 
especially east of Admiralty Inlet. When present, minke whales are 
usually seen singly or in pairs. Therefore, based on a low probability 
of occurrence within

[[Page 5685]]

the vibratory harassment zones, the Navy used the same equation 
discussed above to calculate estimated exposures. The formula estimated 
zero takes annually for the duration of the LOA. However, due to the 
uncertainty of minke whale movements and the large area of exposure 
during vibratory driving of 36-inch steel piles, the Navy requested, 
and NMFS has authorized take for the exposure of one minke whale per 
year for the duration of the 5-year LOA.
    To protect minke whales from noise impacts, the Navy will implement 
a shutdown if PSOs see minke whales approaching or within any 
harassment zone. A PSO will be stationed at locations from which the 
injury zone and behavioral zone for impact and vibratory pile driving 
are visible and will implement shutdown if a whale approaches or enters 
either zone. PSOs may be stationed on boats to observe a greater 
portion of the shutdown zone than is visible from land-based locations. 
With the implementation of monitoring, even if a whale enters an injury 
zone, shutdown would occur before cumulative exposure to noise levels 
that would result in PTS could occur. Because pile driving will be shut 
down if whales are in the injury zone, no Level A harassment take has 
been requested or will be authorized by NMFS. In summary, although 
minke whales are rare in the project area, the Navy has requested and 
NMFS has assumed one take of minke whale by Level B harassment each 
year for the duration of the 5-year LOA.
Dall's Porpoise
    Dall's porpoises are most abundant in the Strait of Juan de Fuca 
and Haro Strait in the San Juan Islands area, but may be present in 
Puget Sound year-round. Group size is usually two to four, although 
larger groups are often sighted (Anderson et al., 2018). In Puget 
Sound, the Navy has estimated that Dall's porpoise density is 0.045 
animals/km\2\, although they have not been reported near NAVMAG Indian 
Island in recent years and their occurrence in both the Salish Sea and 
Puget Sound appears to be declining (Smultea et al., 2015; Evenson et 
al., 2016; Jefferson et al., 2016). The Navy used the formula described 
previously to calculate potential exposures. The formula estimated zero 
takes. Due to the uncertainty of Dall's porpoise movements and the 
large estimated harassment area during vibratory driving, the Navy 
assumed, and NMFS concurred, that there will be three takes from work 
on the fender piles and three takes from work on the steel piles each 
year, by Level B harassment only.
    To protect Dall's porpoises from noise impacts, the Navy will 
implement a shutdown if PSOs see porpoises approaching or inside of any 
harassment zone. A PSO will be stationed at locations from which the 
harassment zones for impact and vibratory pile driving are visible and 
will implement shutdown if a porpoise approaches or enters any zone. 
With the implementation of monitoring, even if a Dall's porpoise enters 
an injury zone, shutdown would occur before cumulative exposure to 
noise levels that would result in PTS could occur. Because pile driving 
will be shut down if porpoises are in the injury zone, no Level A 
harassment take has been requested or will be authorized. In summary, 
although Dall's porpoises are rare in the project area, the Navy has 
requested, and NMFS has assumed take of 30 Dall's porpoises (6 per 
year) by Level B harassment over the 5-year LOA period.
Harbor Porpoise
    Harbor porpoises may be present in all major regions of Puget Sound 
throughout the year. Group sizes ranging from 1 to 150 individuals were 
reported in aerial surveys conducted from summer 2013 to spring 2016, 
but mean group size was 1.7 animals (Smultea et al., 2017). The 
estimated harbor porpoise density in inland waters is provided in table 
10. The estimated exposure equation described previously was employed 
resulting in 125 takes per year from steel vibratory driving. Take from 
concrete/fender vibratory driving was calculated to be 0.05 exposures 
per year. However, the Navy requested authorization of three takes per 
year resulting from this activity as a precaution. Note that harbor 
porpoises were not observed during pile driving monitoring at NAVMAG 
Indian Island ammunition wharf from 2014 to 2016 (Navy, 2014; Navy 
2016), but one was observed in 2020 within 200 m of the Wharf (Navy, 
2021).
    The Navy will implement a shutdown if porpoises are seen by PSOs 
entering or within any harassment zone in order to protect harbor 
porpoises from noise impacts. A monitor will be stationed at locations 
from which the injury and behavioral harassment zones for impact and 
vibratory pile driving are visible and will implement shutdown if a 
porpoise approaches or enters any harassment zone. With the 
implementation of monitoring, even if a harbor porpoise enters an 
injury zone, shutdown would occur before cumulative exposure to noise 
levels that would result in PTS could occur. Because pile driving will 
be shut down if porpoises are in the injury zone, no Level A harassment 
take has been requested or will be authorized. In summary, the Navy has 
requested, and NMFS has assumed take of up to 640 harbor porpoises by 
Level B harassment (3 per year for work on concrete/fender piles and 
125 per year from for work on steel piles) for the duration of the 5-
year LOA.
California Sea Lion
    California sea lions occur in Puget Sound from approximately August 
to June. This species occasionally hauls out on the port security 
barriers at NAVMAG Indian Island. These haulouts are adjacent to, in, 
or near the Level B harassment zones, so exposure may occur if animals 
move through Level B harassment zones during impact or vibratory pile 
driving activities. California sea lions were not observed during 
previous pile driving monitoring at NAVMAG Indian Island ammunition 
wharf in 2014 to 2016 (Navy, 2014; Navy 2016), but one was observed 
during 2020 (Navy, 2021). Although calculated take was zero, reflecting 
their unlikely occurrence, Level B harassment exposures for the 
concrete and fender pile driving were estimated as one sea lion per 
year. Exposure estimates for vibratory driving of steel piles utilized 
the estimated exposure equation, resulting in estimated take of 17.88 
sea lions per year, which was rounded up to 18 sea lion takes per year. 
Because a Level A harassment injury zone can be effectively monitored 
and a shutdown zone will be implemented, no take by Level A harassment 
is anticipated or will be authorized. Based on the aforementioned 
considerations, NMFS is authorizing take of 95 California sea lions (1 
per year by work on concrete/fender piles and 18 per year from work on 
steel piles), by Level B harassment only, for the duration of the 5-
year LOA.
Steller Sea Lion
    Steller sea lions occur seasonally in Puget Sound primarily from 
September through May. Take may occur if these animals move through 
Level B harassment zones during impact or vibratory pile driving. 
Although their occurrence is unlikely, the Navy assumed that there will 
be one Level B harassment take from concrete and fender pile driving 
per year. Level B harassment exposure estimates for steel piles 
utilized the exposure estimate equation described previously using 
densities from table 10 resulting in an estimated take of 5.16 animals 
per year

[[Page 5686]]

rounded to 5 takes. Steller sea lions were not observed during previous 
monitoring at NAVMAG Indian Island ammunition wharf in 2014 to 2016 
(Navy, 2014, 2016, 2021). Because the Level A harassment injury zone is 
small under all driving scenarios, it can be effectively monitored. A 
shutdown will be implemented if animals approach the injury zone and no 
exposure to Level A harassment noise levels is anticipated at any 
location. In summary, the Navy has requested, and NMFS is authorizing 
take of up to 30 Steller sea lions (five for work on concrete/fender 
piles over 5 years and 25 for work on steel piles over 5 years) by 
Level B harassment for the duration of the 5-year LOA.
Northern Elephant Seal
    Northern elephant seals are considered rare visitors to Puget 
Sound. No regular elephant seal haul outs occur in Puget Sound, 
although individual elephant seals have been detected hauling out for 2 
to 4 weeks to molt, usually during the spring and summer. Haul out 
locations are unpredictable, but only one record is known for a Navy 
installation. The Navy reports a density of 0.0 in Puget Sound (Navy, 
2020). However, because there are occasional sightings in Puget Sound, 
the Navy assumed that there will be one exposure from concrete/fender 
driving and one exposure from steel driving during each year of the 
LOA. Because elephant seals are rare in the project area and monitoring 
and shutdown measures will be implemented, no Level A harassment 
exposure is anticipated. In summary, the Navy has requested, and NMFS 
is authorizing take of up to 10 northern elephant seals (2 per year) by 
Level B harassment for the duration of the 5-year LOA.
Pacific Harbor Seal
    Pacific harbor seals are expected to occur year-round at NAVMAG 
Indian Island. This species hauls out regularly at Rat Island adjacent 
to the northeastern end of NAVMAG Indian Island year-round with a dip 
in numbers in winter months. Harbor seals are most likely to be exposed 
to Level A harassment noise when they swim through the area near the 
Ammunition Wharf during impact pile driving (182 m for steel impact 
driving and 29 m for concrete impact driving). Pile driving will shut 
down whenever a seal is detected by monitors nearing or within the 
injury zone, but harbor seals can dive for up to 15 minutes and may not 
be detected until they have been within the injury zone for a 
sufficient period of time to incur PTS. For most pile driving 
activities, exposure of harbor seals to pile driving noise will be 
limited to Level B harassment. Level B harassment exposure estimates 
for vibratory driving were determined using the formula of Level B 
harassment zone area x density x days of vibratory pile driving. The 
Navy has calculated take by Level B harassment of 1,710 harbor seals 
during vibratory installation of fender piles (342 per year), and 1,530 
harbor seals during vibratory pile driving of steel piles (306 per 
year). Therefore, the Navy has requested, and NMFS is authorizing take 
of up to 3,240 Pacific harbor seals by Level B harassment for the 
duration of the LOA. In addition, the Navy has requested and NMFS is 
authorizing up to 135 harbor seal takes (27 per year) by Level A 
harassment during the 5-year LOA. This is based on the daily average of 
site-specific observations from several seasons of pile driving 
monitoring at the Ammunition Wharf and weekly surveys conducted at 
NAVMAG Indian Island provided above. Observations of seals within 29 m 
would be calculated to a mean of seals per day within the Level A 
harassment zone. (Using the density value would underestimate the 
number of seals in that small zone.) This assumption results in 11 
Level A harassment takes per year (0.5 seals/day for 22 days) for 
impact driving of concrete piles (55 takes for 5 years) and 16 takes 
per year (8 seals/day for 2 days) for impact driving of steel piles (80 
takes over 5 years).
    The annual and total number of takes that may be authorized by NMFS 
are shown in table 11 and table 12.

                 Table 11--Annual Take by Level A and Level B Harassment and Percentage of Stock Abundance for Authorized Species/Stocks
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Exposures
                                         ---------------------------------------------------------------------------------------------------------------
                                           24-Inch concrete piles and/or   36-Inch steel piles (up to 2
                                           14-in/18.75-inch fender piles            piles/year)                                             Percent of
                 Species                       (up to 22 piles/year)     --------------------------------                                 stock/distinct
                                         --------------------------------                                  Total annual     Population      population
                                          Level B impact                  Level B impact  Level A impact                                   segment (DPS)
                                           or vibratory   Level A impact   or vibratory                                                      per year
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray Whale..............................               0               0               1               0               1          26,960           <0.01
Minke Whale.............................               0               0               1               0               1             915           <0.01
Dall's Porpoise.........................               3               0               3               0               6          16,498           <0.01
Harbor Porpoise.........................               3               0             125               0             128          11,233            1.11
California Sea Lion.....................               1               0              18               0              19         257,606           <0.01
Steller Sea Lion........................               1               0               5               0               6          43,201           <0.01
Northern Elephant Seal..................               1               0               1               0               2         187,386           <0.01
Pacific Harbor Seal.....................             342              11             306              16             675          11,036            6.11
--------------------------------------------------------------------------------------------------------------------------------------------------------


               Table 12--Total 5-Year Authorized Takes (Level A Harassment and Level B Harassment)
----------------------------------------------------------------------------------------------------------------
                                                                      Level A         Level B
                Species                           Stock             harassment      harassment     Total 5-year
----------------------------------------------------------------------------------------------------------------
Gray Whale............................  Eastern North Pacific...  ..............               5               5
Minke Whale...........................  California/Oregon/        ..............               5               5
                                         Washington.
Dall's Porpoise.......................  California/Oregon/        ..............              30              30
                                         Washington.
Harbor Porpoise.......................  Washington Inland Waters  ..............             640             640
California Sea Lion...................  United States...........  ..............              95              95
Steller Sea Lion......................  Eastern United States...  ..............              30              30
Northern Elephant Seal................  California Breeding.....  ..............              10              10
Pacific Harbor Seal...................  Washington Northern                  135           3,240           3,375
                                         Inland Waters.
----------------------------------------------------------------------------------------------------------------


[[Page 5687]]

Mitigation

    In order to issue an LOA under section 101(a)(5)(A) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks, and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, NMFS 
considers two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.
    In order to limit impacts to marine mammals, vibratory installation 
will be used by the Navy to the extent practicable to drive steel piles 
to minimize high sound pressure levels associated with impact pile 
driving. Jetting will also be used to the extent possible to install 
concrete piles in order to minimize higher sound pressure levels 
associated with impact pile driving. Note that a draft monitoring plan 
will be submitted in the spring at least 90 days prior to the start of 
the in-water work period (October) during the first year of the project 
(2024). The final monitoring plan will be prepared and submitted to 
NMFS within 30 days following receipt of comments on the draft plan 
from NMFS.
    The Navy will ensure that construction supervisors and crews, the 
monitoring team, and relevant Navy staff are trained and prior to the 
start of construction activity subject to this rule, so that 
responsibilities, communication procedures, monitoring protocols, and 
operational procedures are clearly understood. New personnel joining 
during the project will be trained prior to commencing work.

Shutdown Zones

    Before the commencement of in-water construction activities, the 
Navy will establish shutdown zones for all impact and pile driving 
activities. The purpose of a shutdown zone is generally to define an 
area within which shutdown of the activity would occur upon sighting of 
a marine mammal (or in anticipation of an animal entering the defined 
area). Shutdown zones will vary based on the activity type and marine 
mammal hearing group but will include all areas where the underwater 
sound pressure levels are anticipated to equal or exceed the Level A 
harassment (injury) criteria for marine mammals. The shutdown zone will 
always be a minimum of 10 m to prevent injury from physical interaction 
of marine mammals with construction equipment. The Level A harassment 
zones are based on the maximum calculated radius for pinnipeds and 
cetaceans, specifically harbor porpoises, during installation of 36-
inch steel piles and 24-inch concrete piles with impact techniques, and 
the Level B harassment zone for impact and vibratory pile installation.
    Injury to harbor seals from noise due to impact and vibratory pile 
driving and physical interaction with construction equipment will be 
minimized to the extent practicable by implementing a shutdown if the 
animals are observed to be swimming towards the injury zone. For steel 
pile impact driving, to the extent possible, PSOs will initiate 
shutdown when harbor seals enter the injury zone; however, because of 
the size of the zone and the inherent difficulty in monitoring harbor 
seals, a highly mobile species, it may not be practical, which is why 
Level A harassment take has been analyzed.
    The taking by serious injury or death of any of the species listed 
in table 12 or any taking of any other species of marine mammal is 
prohibited. The Navy will establish shutdown zones for all marine 
mammals for which incidental take has been authorized but the 
authorized number of takes has been met. These zones are equivalent to 
the Level B harassment zones for each activity. If such animals are 
sighted within the vicinity of the project areas and are approaching 
the Level B harassment zone, the Navy will shut down the pile driving 
equipment to avoid possible take of these species.
    Pile driving activities will cease if any cetaceans authorized for 
take are seen approaching or entering any harassment zone. Work will be 
halted and delayed until either the animal has voluntarily left and 
been visually confirmed beyond the injury zone or visual portion of the 
Level B harassment zone or 15 minutes have passed without re-detection 
of the animal. Additionally, if a shutdown zone is obscured by fog or 
poor lighting conditions, pile driving will not be initiated until the 
entire shutdown zone is visible.
    If a pinniped approaches or enters a shutdown zone during pile 
impact or vibratory driving, work will be halted and delayed until 
either the animal has voluntarily left and been visually confirmed 
beyond the shutdown zone or 15 minutes have passed without re-detection 
of the animal. If a pinniped is observed in the Level B harassment 
zone, but not approaching or entering the shutdown zone, the work will 
be allowed to proceed without cessation of pile driving. Marine mammal 
behavior will be monitored and documented.

                                     Table 13--Shutdown and Harassment Zones
----------------------------------------------------------------------------------------------------------------
                                                             Shutdown zone (m)                      Level B
             Pile size and type              ------------------------------------------------   harassment zone
                                                 Cetaceans      Harbor seal      Sea lion             (m)
----------------------------------------------------------------------------------------------------------------
24-inch Concrete Impact.....................              90              30              10                  90
36-inch Steel Impact........................             400             200              20                 400
36-inch Steel Vibratory.....................          13,600              10              10              13,600

[[Page 5688]]

 
Fender Vibratory............................           1,000              10              10               1,000
----------------------------------------------------------------------------------------------------------------

    At minimum, the shutdown zone for all hearing groups and all 
activities will be 10 m. For in-water heavy machinery work other than 
pile driving (e.g., standard barges, etc.), if a marine mammal comes 
within 10 m, operations will cease and vessels will reduce speed to the 
minimum level required to maintain steerage and safe working 
conditions. This type of work could include, for example, the movement 
of the barge to the pile location or positioning of the pile on the 
substrate via a crane.

Pre-Activity Monitoring

    Prior to the start of daily in-water construction activity, or 
whenever a break in pile driving of 30 minutes or longer occurs, PSOs 
will observe the shutdown and Level B harassment zones for a period of 
30 minutes. The shutdown zone will be considered cleared when a marine 
mammal has not been observed within the zone for that 30-minute period. 
If a marine mammal is observed within the shutdown zones listed in 
table 13, pile driving activity would be delayed or halted. If pile 
driving is delayed or halted due to the presence of a marine mammal, 
the activity will not commence or resume until either the animal has 
voluntarily exited and been visually confirmed beyond the shutdown 
zones or 15 minutes have passed without re-detection of the animal. If 
work ceases for more than 30 minutes, the pre-activity monitoring of 
the shutdown zones will commence. A determination that the shutdown 
zone is clear must be made during a period of good visibility (i.e., 
the entire shutdown zone and surrounding waters must be visible to the 
naked eye).
    Monitoring will take place from 30 minutes prior to initiation 
through 30 minutes post-completion of pile driving. Prior to the start 
of pile driving, the shutdown zone will be monitored for 30 minutes to 
ensure that the shutdown zone is clear of marine mammals. Pile driving 
will only commence once PSOs have declared the shutdown zone clear of 
marine mammals.

Soft Start

    Soft-start procedures are used to provide additional protection to 
marine mammals by providing warning and/or giving marine mammals a 
chance to leave the area prior to the hammer operating at full 
capacity. For impact pile driving, contractors will be required to 
provide an initial set of three strikes from the hammer at reduced 
energy, followed by a 30-second waiting period, then two subsequent 
reduced-energy strike sets. Soft start will be implemented at the start 
of each day's impact pile driving and at any time following cessation 
of impact pile driving for a period of 30 minutes or longer.

Bubble Curtain

    Should use of 36-inch steel piles be necessary, a bubble curtain 
will be used for all impact driving of steel piles to attenuate noise. 
Because of the relatively low underwater noise levels associated with 
impact driving of concrete piles, bubble curtains are not required for 
impact installation of concrete piles.
    A bubble curtain will be employed during impact installation or 
proofing of steel pile where water depths are greater than 0.67 m. A 
noise attenuation device will not be 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. A bubble curtain is usually a ring 
or series of stacked rings that are placed around a pile along the 
pile's entire length under water. The rings are made of tubing which 
has small puncture holes through which compressed air is pumped. As the 
compressed air bubbles flow from the tubing, they create an air barrier 
that impedes the sound produced during pile driving. Any other 
attenuation measure will be required to provide 100 percent coverage in 
the water column for the full depth of the pile. The lowest bubble ring 
would be in contact with the mudline for the full circumference of the 
ring. The weights attached to the bottom ring will ensure 100 percent 
mudline contact. No parts of the ring or other objects will prevent 
full mudline contact.
    NMFS has determined that the required mitigation measures provide 
the 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.

Monitoring and Reporting

    In order to issue an LOA for an activity, section 101(a)(5)(A) 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 
authorizations 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 while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    <bullet> Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the activity; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    <bullet> How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;

[[Page 5689]]

    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and,
    <bullet> Mitigation and monitoring effectiveness.
    The Navy will submit a Marine Mammal Monitoring Plan to NMFS for 
approval at least 90 days in advance of the start of the first year of 
construction.

Visual Monitoring

    <bullet> Monitoring must be conducted during pile driving 
activities by qualified, NMFS-approved PSOs, in accordance with the 
following conditions: PSOs must be independent of the activity 
contractor (for example, employed by a subcontractor) and have no other 
assigned tasks during monitoring periods.
    <bullet> At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization.
    <bullet> Other PSOs may substitute other relevant experience, 
education (degree in biological science or related field), or training 
for prior experience performing the duties of a PSO during construction 
activity pursuant to a NMFS-issued incidental take authorization.
    <bullet> Where a team of three or more PSOs is required, a lead PSO 
or monitoring coordinator must be designated. The lead PSO must have 
prior experience performing the duties of a PSO during construction 
activity pursuant to a NMFS-issued incidental take authorization.
    <bullet> PSOs must be approved by NMFS prior to beginning any 
activity subject to this rule.
    All PSOs shall be trained in marine mammal identification and 
behaviors, and satisfy the following criteria:
    <bullet> Visual acuity in both eyes (correction is permissible) 
sufficient to discern moving targets at the water's surface with 
ability to estimate target size and distance. Use of binoculars or 
spotting scope may be necessary to correctly identify the target.
    <bullet> Advanced education in biological science, wildlife 
management, mammalogy or related field (Bachelor's degree or higher is 
preferred).
    <bullet> Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
    <bullet> Experience or training in the field identification of 
marine mammals (cetaceans and pinnipeds).
    <bullet> Sufficient training, orientation or experience with vessel 
operation and pile driving operations to provide for personal safety 
during observations.
    <bullet> Writing skills sufficient to prepare a report of 
observations. Reports should include such information as the number, 
type, and location of marine mammals observed; the behavior of marine 
mammals in the area of potential sound effects during construction; 
dates and times when observations and in-water construction activities 
were conducted; dates and times when in-water construction activities 
were suspended because of marine mammals, etc.
    <bullet> Ability to communicate orally, by radio or in person, with 
project personnel to provide real time information on marine mammals 
observed in the area and necessary actions, as needed.
    During pile driving activities, the Navy will assign PSOs to 
monitor the identified harassment zones. The number and placement of 
PSOs will vary depending upon the pile size, location, and number of 
piles being installed or removed. In order to effectively monitor the 
shutdown and Level B harassment zones, PSOs will be positioned at the 
best practicable vantage points, taking into consideration security, 
safety, and space limitations. The PSOs will be stationed on the pier, 
vessel, on shore, or on the pile driving barge in a location that will 
provide adequate visual coverage for the identified harassment zones. 
During pile driving, at least one PSO will be stationed on a vessel if 
practicable.
    Monitoring will be conducted 30 minutes before, during, and 30 
minutes after all in water construction activities. In addition, PSOs 
will record all incidents of marine mammal occurrence, regardless of 
distance from activity, and will document any behavioral reactions in 
concert with distance from piles being driven or removed.

Reporting

    The Navy must submit a draft monitoring report to NMFS within 90 
calendar days of the completion of each construction year. A draft 
comprehensive 5-year summary report must also be submitted to NMFS 
within 90 days of the end of the project. The reports must detail the 
monitoring protocol and summarize the data recorded during monitoring. 
Final annual reports and the final comprehensive report must be 
prepared and submitted within 30 days following resolution of any NMFS 
comments on the draft report. If no comments are received from NMFS 
within 30 days of receipt of the draft report, the report must be 
considered final. If comments are received, a final report addressing 
NMFS comments must be submitted within 30 days after receipt of 
comments. The marine mammal report will include an overall description 
of work completed, a narrative regarding marine mammal sightings, and 
associated PSO data sheets. Specifically, the report will include:
    <bullet> Dates and times (begin and end) of all marine mammal 
monitoring;
    <bullet> Construction activities occurring during each daily 
observation period, including: (a) How many and what type of piles were 
driven or removed and the method (i.e., impact or vibratory); and (b) 
the total duration of time for each pile (vibratory driving) number of 
strikes for each pile (impact driving);
    <bullet> PSO locations during marine mammal monitoring; and
    <bullet> Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    In addition, for each observation of a marine mammal, the marine 
mammal report will include the following information:
    <bullet> Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
    <bullet> Time of sighting;
    <bullet> Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
    <bullet> Distance and location of each observed marine mammal 
relative to the pile being driven for each sighting;
    <bullet> Estimated number of animals (min/max/best estimate);
    <bullet> Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.);
    <bullet> Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing, or breaching);
    <bullet> Number of marine mammals detected within the harassment 
zones, by species; and
    <bullet> Detailed information about implementation of any 
mitigation (e.g., shutdowns and delays), a description of specified 
actions that ensued, and

[[Page 5690]]

resulting changes in behavior of the animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
reports will constitute the final reports. If comments are received, a 
final report addressing NMFS' comments will be required to be submitted 
within 30 days after receipt of comments. All PSO datasheets and/or raw 
sighting data will be submitted with the draft marine mammal report.

Reporting of Injured or Dead Marine Mammals

    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the Navy must report the 
incident to NMFS Office of Protected Resources (OPR) 
(<a href="/cdn-cgi/l/email-protection#1a4a4834534e4a34577574736e756873747d487f6a75686e695a74757b7b347d756c"><span class="__cf_email__" data-cfemail="c29290ec8b9692ec8fadacabb6adb0abaca590a7b2adb0b6b182acada3a3eca5adb4">[email protected]</span></a>), NMFS (301-427-8401) and to the 
NMFS Northwest Regional Stranding Coordinator as soon as feasible. If 
the death or injury was clearly caused by the specified activity, the 
Navy must immediately cease the specified activities until NMFS OPR is 
able to review the circumstances of the incident and determine what, if 
any, additional measures are appropriate to ensure compliance with the 
terms of this rule. The Navy will not resume their activities until 
notified by NMFS. The report must include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and 
General circumstances under which the animal was discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
taken through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338, 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the baseline (e.g., as reflected in the regulatory status of 
the species, population size and growth rate where known, ongoing 
sources of human-caused mortality, or ambient noise levels).
    To avoid repetition, the discussion of our analysis applies to the 
species listed in table 12, given that many of the anticipated effects 
of this project on different marine mammal stocks are expected to be 
relatively similar in nature. Where there are meaningful differences 
among species, stocks, or groups of species, anticipated responses of 
individual animals to activities, and/or impacts of expected take on 
the population (due to differences in population status, or impacts on 
habitat), the outliers are described independently in the analysis 
below.
    Pile driving activities associated with the project, as outlined 
previously, have the potential to disturb or displace marine mammals. 
Specifically, the specified activities may result in take, in the form 
of Level A and Level B harassment from underwater sounds generated by 
pile driving. Potential takes could occur if marine mammals are present 
in zones ensonified above the thresholds for Level A and Level B 
harassment, identified above, while activities are underway.
    No serious injury or mortality would be expected even in the 
absence of the mitigation measures. During all impact driving, 
implementation of soft-start procedures and monitoring of established 
shutdown zones will be required, significantly reducing the possibility 
of injury. Given sufficient notice through use of soft-start (for 
impact driving), marine mammals are expected to move away from an 
irritating sound source before it becomes potentially injurious. In 
addition, PSOs will be stationed within the project area whenever pile 
driving activities are underway. Depending on the activity, the Navy 
will employ land-based PSOs to ensure all monitoring and shutdown zones 
are properly observed. For monitoring of larger harassment zones, the 
Navy will employ vessel-based PSOs if practicable. Some harbor seals 
could be exposed to Level A harassment levels of noise when they swim 
through the area near the Ammunition Wharf during impact pile driving. 
Pile driving will shut down whenever a seal is detected by PSOs nearing 
or within the injury zone, but harbor seals can dive for up to 15 
minutes and may not be detected. Any animals that experience PTS would 
likely only receive slight PTS, i.e., minor degradation of hearing 
capabilities within regions of hearing that align most completely with 
the frequency range of the energy produced by pile driving (i.e., the 
low-frequency region below 2 kHz), not severe hearing impairment or 
impairment in the range of greatest hearing sensitivity. If hearing 
impairment does occur, it is most likely that the affected animal would 
lose a few dBs in its hearing sensitivity, which, in most cases, is not 
likely to meaningfully affect its ability to forage and communicate 
with conspecifics. As described above, we expect that, given sufficient 
notice through use of soft-start, marine mammals would be likely to 
move away from a sound source that represents an aversive stimulus, 
especially when the sound source is at levels that would be expected to 
result in PTS. For most pile driving activities, exposure of harbor 
seals to pile driving noise will be minimized to short-term behavioral 
harassment (Level B harassment).
    Exposures to elevated sound levels produced during pile driving 
activities may cause behavioral disturbance of some individuals, but 
the behavioral disturbances are expected to be mild and temporary. 
However, as described previously, the mitigation and monitoring 
measures are expected to further reduce the likelihood of injury as 
well as reduce behavioral disturbances.
    Effects on individuals that are taken by Level B harassment, as 
enumerated in the Estimated Take section, on the basis of reports in 
the literature as well as monitoring from other similar activities, 
will likely be limited to reactions such as increased swimming speeds, 
increased surfacing time, or decreased foraging (if such activity were 
occurring) (e.g., Thorson and Reyff, 2006). Most likely, individual 
animals will simply move away from the sound source and be temporarily 
displaced from the areas of pile driving, although

[[Page 5691]]

even this reaction has been observed primarily only in association with 
impact pile driving. The pile driving activities analyzed here are 
similar to, or less impactful than, numerous other construction 
activities conducted along both Atlantic and Pacific coasts, which have 
taken place with no known long-term adverse consequences from 
behavioral harassment. These reactions and behavioral changes are 
expected to subside quickly when the exposures cease. Level B 
harassment will be minimized through use of mitigation measures 
described herein, and, if sound produced by project activities is 
sufficiently disturbing, animals are likely to simply avoid the area 
while the activity is occurring, particularly as the project is located 
on a waterfront with vessel traffic from both Navy and non-Navy 
activities.
    The project is also not expected to have significant adverse 
effects on any marine mammal habitat. The Navy's planned pile driving 
activities and associated impacts will occur within a limited portion 
of the confluence of the Puget Sound-Port Townsend Bay area. The 
project activities will not modify existing marine mammal habitat since 
the project will occur within the same footprint as existing marine 
infrastructure. Impacts to the immediate substrate during installation 
and removal of piles are anticipated, but these would be limited to 
minor, temporary suspension of sediments, which could impact water 
quality and visibility for a short amount of time, but which would not 
be expected to have any effects on individual marine mammals. The 
nearshore and intertidal habitat where the project will occur is an 
area of consistent vessel traffic from Navy and non-Navy vessels, and 
some local individuals would likely be somewhat habituated to the level 
of activity in the area, further reducing the likelihood of more severe 
impacts. The closest pinniped haulout, Rat Island, is used by harbor 
seals and is 2.4 km from the Ammunition Wharf. However, for the reasons 
described immediately above (including the nature of expected responses 
and the duration of the project), impacts to reproduction or survival 
of individuals are not anticipated, and are not expected to have 
effects on the species or stock. There are no other biologically 
important areas for marine mammals near the project area.
    Impacts to marine mammal prey species are expected to be minor and 
temporary. Overall, the area impacted by the project is very small 
compared to the available habitat in Port Townsend Bay and larger Puget 
Sound. The most likely impact to prey will be temporary behavioral 
avoidance of the immediate area. During pile driving activities, it is 
expected that some fish and marine mammals would temporarily leave the 
area of disturbance, thus impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; but, because 
of the short duration of the activities and the relatively small area 
of the habitat that may be affected, the impacts to marine mammal 
habitat are not expected to cause significant or long-term negative 
consequences.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
    <bullet> No mortality is anticipated or authorized;
    <bullet> No Level A harassment is anticipated or authorized with 
the exception of limited take of harbor seals;
    <bullet> Anticipated incidents of Level B harassment consist of, at 
worst, temporary modifications in behavior;
    <bullet> The required mitigation measures (i.e., shutdown zones) 
are expected to be effective in reducing the effects of the specified 
activity;
    <bullet> Minimal impacts to marine mammal habitat/prey are 
expected; and
    <bullet> There are no known biologically important areas in the 
vicinity of the project, with the exception of one harbor seal haulout 
(Rat Island). However, as described above, exposure to the work 
conducted in the vicinity of the haulout is not expected to impact the 
reproduction or survival of any individual seals.
    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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted previously, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    Take of eight marine mammal stocks authorized for take will 
comprise no more than 6.11 percent of a single stock abundance (Pacific 
harbor seal) as shown in table 11. The number of animals authorized to 
be taken from these stocks would be considered small relative to the 
relevant stock's abundances even if each estimated take occurred to a 
new individual, which is an unlikely scenario. Based on the analysis 
contained herein of the planned activity (including the mitigation and 
monitoring measures) and the anticipated take of marine mammals, NMFS 
finds that small numbers of marine mammals will be taken relative to 
the population size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks will not 
have an unmitigable adverse impact on the availability of such species 
or stocks for taking for subsistence purposes.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Navy construction activities will contain an adaptive management 
component. The reporting requirements associated with this rule are 
designed to provide NMFS with monitoring data from completed projects 
to allow consideration of whether any changes are appropriate. The use 
of adaptive management allows NMFS to consider new information from 
different sources to determine (with input from the Navy regarding 
practicability) on an annual or biennial basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be

[[Page 5692]]

considered through the adaptive management process: (1) Results from 
monitoring reports, as required by MMPA authorizations; (2) results 
from general marine mammal and sound research; and (3) any information 
which reveals that marine mammals may have been taken in a manner, 
extent, or number not authorized by these regulations or LOAs issues 
pursuant to these regulations.

Endangered Species Act

    Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) 
requires that each Federal agency insure that any action it authorizes, 
funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the issuance of rules, NMFS consults 
internally whenever we propose to authorize take for endangered or 
threatened species, in this case with the NMFS West Coast Regional 
Office.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
consultation under section 7 of the ESA is not required for this 
action.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this action will not 
have a significant economic impact on a substantial number of small 
entities. The Navy is the sole entity that will be subject to the 
requirements in these regulations, and the Navy is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. No comments were received regarding this 
certification or on the economic impacts of the rule more generally. As 
a result, a regulatory flexibility analysis is not required and none 
has been prepared.
    This rule does not contain a collection-of-information requirement 
subject to the provisions of the Paperwork Reduction Act (PRA) because 
the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

    Administrative practice and procedure, Exports, Fish, Imports, 
Marine mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation, Wildlife.

    Dated: January 23, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, NMFS revises subpart I of 50 
CFR part 217 as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.


0
2. Revise subpart I, consisting of Sec. Sec.  217.80 through 217.89, to 
read as follows:
Subpart I--Taking Marine Mammals Incidental to U.S. Navy Construction 
at the Naval Magazine Indian Island Ammunition Wharf, Puget Sound, 
Washington
Sec.
217.80 Specified activity and geographical region.
217.81 Effective dates.
217.82 Permissible methods of taking.
217.83 Prohibitions.
217.84 Mitigation requirements.
217.85 Requirements for monitoring and reporting.
217.86 Letters of Authorization.
217.87 Renewals and modifications of Letters of Authorization.
217.88-217.89 [Reserved]

Subpart I--Taking Marine Mammals Incidental to U.S. Navy 
Construction at the Naval Magazine Indian Island Ammunition Wharf, 
Puget Sound, Washington


Sec.  217.80  Specified activity and geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy) 
and those persons it authorizes or funds to conduct activities on its 
behalf for the taking of marine mammals that occur in the areas 
outlined in paragraph (b) of this section and that occur incidental to 
construction activities, including maintenance and replacement of 
piles, at the Naval Magazine Indian Island Ammunition Wharf, Puget 
Sound, Washington.
    (b) The taking of marine mammals by the Navy may be authorized in a 
Letter of Authorization (LOA) only if it occurs at the Naval Magazine 
Indian Island Ammunition Wharf, Puget Sound, Washington.


Sec.  217.81  Effective dates.

    Regulations in this subpart are effective from October 1, 2024, 
until September 30, 2029.


Sec.  217.82  Permissible methods of taking.

    Under an LOA issued pursuant to Sec.  216.106 of this chapter and 
Sec.  217.86, the Holder of the LOA (hereinafter ``Navy'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.80 (b) by harassment associated with 
construction activities, provided the activity is in compliance with 
all terms, conditions, and requirements of the regulations in this 
subpart and the applicable LOA.


Sec.  217.83  Prohibitions.

    (a) Except for the takings contemplated in Sec.  217.82 and 
authorized by a LOA issued under Sec. Sec.  216.106 of this chapter and 
217.86, it is unlawful for any person to do any of the following in 
connection with the activities described in Sec.  217.80:
    (1) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.  216.106 of 
this chapter and Sec.  217.86;
    (2) Take any marine mammal not specified in such LOA;
    (3) Take any marine mammal specified in such LOA in any manner 
other than as specified;
    (4) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (5) Take a marine mammal specified in such LOA after NMFS 
determines such taking results in an unmitigable adverse impact on the 
species or stock of such marine mammal for taking for subsistence uses.
    (b) [Reserved]


Sec.  217.84   Mitigation requirements.

    (a) When conducting the activities identified in Sec.  217.80(a), 
the mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and Sec. Sec.  217.86 or 217.87 must be 
implemented. These mitigation measures include but are not limited to:
    (1) A copy of any issued LOA must be in the possession of the Navy, 
its designees, and work crew personnel operating under the authority of 
the issued LOA;
    (2) The Navy must follow mitigation procedures as described in 
Sec.  217.84. Protected Species Observers (PSO) must monitor designated 
harassment zones

[[Page 5693]]

described in the LOA to the maximum extent practicable based on daily 
visibility conditions.
    (3) The Navy must ensure that construction supervisors and crews, 
the PSO team, and relevant Navy staff are trained prior to the start of 
construction activity subject to this rule, so that responsibilities, 
communication procedures, monitoring protocols, and operational 
procedures are clearly understood. New personnel joining during the 
project must be trained prior to commencing work;
    (4) The Navy must avoid direct physical interaction with marine 
mammals during construction activity. If a marine mammal comes within 
10 m of such activity, operations must cease and vessels must reduce 
speed to the minimum level required to maintain steerage and safe 
working conditions, as necessary, to avoid direct physical interaction;
    (5) For all pile driving activity, the Navy must implement shutdown 
zones with radial distances as identified in a LOA issued under Sec.  
216.106 of this chapter and Sec. Sec.  217.86 or 217.87. If a marine 
mammal comes within or approaches the shutdown zone, pile driving 
activity must cease;
    (6) The Navy must shut down in-water activities when cetaceans are 
observed approaching or within any harassment zone;
    (7) The Navy must use soft start techniques when impact pile 
driving. Soft start requires an initial set of three strikes from the 
hammer at reduced energy, followed by a 30-second waiting period. Then 
two subsequent reduced-energy strike sets would occur. A soft start 
must be implemented at the start of each day's impact pile driving and 
at any time following cessation of impact pile driving for a period of 
30 minutes or longer;
    (8) The Navy must employ bubble curtain systems during impact 
driving of 36-in steel piles except under conditions where the water 
depth is less than 0.67 meters (2 feet) in depth. Bubble curtains must 
meet the following requirements;
    (i) The bubble curtain must distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column;
    (ii) The lowest bubble ring must be in contact with the mudline 
and/or rock bottom for the full circumference of the ring, and the 
weights attached to the bottom ring shall ensure 100 percent mudline 
and/or rock bottom contact. No parts of the ring or other objects shall 
prevent full mudline and/or rock bottom contact; and
    (iii) The bubble curtain must be operated such that there is equal 
balancing of air flow to all bubblers;
    (9) The Navy must deploy PSOs as indicated in its Marine Mammal 
Monitoring Plan that has been approved by NMFS;
    (10) For all pile driving activities, land-based PSOs must be 
stationed at the best vantage points practicable to monitor for marine 
mammals and implement shutdown/delay procedures. At least one vessel-
based PSO must be employed when practicable. Additional PSOs must be 
added if warranted by site conditions and/or the level of marine mammal 
activity in the area;
    (11) Monitoring must take place from 30 minutes prior to initiation 
of pile driving activity (i.e., pre-start clearance monitoring) through 
30 minutes post-completion of pile driving activity. Pre-activity 
monitoring must be conducted for 30 minutes to ensure that the shutdown 
zone is clear of marine mammals, and pile driving may only commence 
when PSOs have declared the shutdown zone clear of marine mammals;
    (12) In the event of a delay or shutdown of activity resulting from 
marine mammals in the shutdown zone, animals must be allowed to remain 
in the shutdown zone (i.e., must leave of their own volition) and their 
behavior must be monitored and documented. If a marine mammal is 
observed within the shutdown zone, a soft start cannot proceed until 
the animal has left the zone or has not been observed for 15 minutes. 
Monitoring must occur throughout the time required to drive a pile;
    (13) If work ceases for more than 30 minutes, the pre-activity 
monitoring of the shutdown zones must commence. A determination that 
the shutdown zone is clear must be made during a period of good 
visibility;
    (14) If a marine mammal approaches or enters the shutdown zone, all 
pile driving activities at that location must be halted. If pile 
driving is halted or delayed due to the presence of a marine mammal, 
the activity may not commence or resume until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
or 15 minutes have passed without re-detection of the animal;
    (15) Pile driving activity must be halted upon observation of a 
species entering or within the harassment zone for either a species for 
which incidental take is not authorized or a species for which 
incidental take has been authorized but the authorized number of takes 
has been met; and
    (16) Trained PSOs must be placed at the best vantage point(s) 
practicable to monitor for marine mammals and implement shutdown or 
delay procedures when applicable through communication with the 
equipment operator.
    (b) [Reserved]


Sec.  217.85   Requirements for monitoring and reporting.

    (a) The Navy must submit a Marine Mammal Monitoring Plan to NMFS 
for approval at least 90 days before the start of construction and 
abide by the Plan if approved.
    (b) The Navy must deploy PSOs as indicated in its approved Marine 
Mammal Monitoring Plan.
    (c) Monitoring must be conducted by qualified, NMFS-approved PSOs, 
in accordance with the following conditions:
    (1) PSOs must be independent of the activity contractor (for 
example, employed by a subcontractor) and have no other assigned tasks 
during monitoring periods;
    (2) At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization;
    (3) Other PSOs may substitute other relevant experience, education 
(degree in biological science or related field), or training for prior 
experience performing the duties of a PSO during construction activity 
pursuant to a NMFS-issued incidental take authorization;
    (4) Where a team of three or more PSOs are required, a lead PSO or 
monitoring coordinator must be designated. The lead PSO must have prior 
experience performing the duties of a PSO during construction activity 
pursuant to a NMFS-issued incidental take authorization; and
    (5) PSOs must be approved by NMFS prior to beginning any activity 
subject to these regulations.
    (d) PSOs must be trained in marine mammal identification and 
behaviors.
    (e) The Navy must monitor the Level B harassment zones (areas where 
SPLs are equal to or exceed the 160 dB root-mean-squared (rms) 
threshold for impact driving and the 120 dB rms threshold during 
vibratory pile driving) to the maximum extent practicable and the 
shutdown zones.
    (f) The Navy must coordinate with the Center for Whale Research, 
Orca network, and NMFS to avoid noise exposure of southern resident 
killer whales. The Navy must shut down in-water activities when 
southern resident killer whales are observed or reported within or 
approaching any harassment zone.

[[Page 5694]]

    (g) The Navy must submit a draft monitoring report to NMFS within 
90 calendar days of the completion of each construction year. A draft 
comprehensive 5-year summary report must also be submitted to NMFS 
within 90 days of the end of the project. The reports must detail the 
monitoring protocol and summarize the data recorded during monitoring. 
Final annual reports and the final comprehensive report must be 
prepared and submitted within 30 days following resolution of any NMFS 
comments on the draft report. If no comments are received from NMFS 
within 30 days of receipt of the draft report, the report must be 
considered final. If comments are received, a final report addressing 
NMFS comments must be submitted within 30 days after receipt of 
comments. The reports must contain the informational elements described 
at minimum below including:
    (1) Dates and times (begin and end) of all marine mammal 
monitoring;
    (2) Construction activities occurring during each daily observation 
period, including how many and what type of piles were driven or 
removed, by what method (i.e., impact or vibratory), the total duration 
of driving time for each pile (vibratory driving), and number of 
strikes for each pile (impact driving);
    (3) Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), Beaufort sea state, and any other relevant weather 
conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance (if less 
than the harassment zone distance);
    (4) Upon observation of a marine mammal, the following information 
should be collected:
    (i) PSO who sighted the animal, observer location, and activity at 
time of sighting:
    (ii) Time of sighting;
    (iii) Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
    (iv) Distances and bearings of each marine mammal observed in 
relation to the pile being driven for each sighting (if pile driving 
was occurring at time of sighting);
    (v) Estimated number of animals (min/max/best);
    (vi) Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.);
    (vii) Animal's closest point of approach and estimated time spent 
within the harassment zone;
    (viii) Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses to the activity (e.g., no response 
or changes in behavioral state such as ceasing feeding, changing 
direction, flushing, or breaching);
    (ix) Detailed information about any implementation of any 
mitigation (e.g., shutdowns and delays), a description of specific 
actions that ensued, and resulting changes in the behavior of the 
animal, if any; and
    (x) All PSO datasheets and/or raw sightings data.
    (h) In the event that personnel involved in the construction 
activities discover an injured or dead marine mammal, the Navy must 
report the incident to NMFS Office of Protected Resources (OPR), and to 
the West Coast Regional Stranding Coordinator, as soon as feasible. If 
the death or injury was caused by the specified activity, the Navy must 
immediately cease the specified activities until NMFS OPR is able to 
review the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of this rule and the LOA issued under Sec.  216.106 of this chapter and 
Sec.  217.86. The Navy must not resume their activities until notified 
by NMFS. The report must include the following information:
    (1) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (2) Species identification (if known) or description of the 
animal(s) involved;
    (3) Condition of the animal(s) (including carcass condition if the 
animal is dead);
    (4) Observed behaviors of the animal(s), if alive;
    (5) If available, photographs or video footage of the animal(s); 
and
    (6) General circumstances under which the animal was discovered.


Sec.  217.86   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Navy must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, the Navy may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Navy must 
apply for and obtain a modification of the LOA as described in Sec.  
217.87.
    (e) The LOA must set forth the following information:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA must be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA must be published in the 
Federal Register within 30 days of a determination.


Sec.  217.87   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.86 for the activity identified in Sec.  217.80(a) may be renewed or 
modified upon request by the applicant, provided that:
    (1) The specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations; and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting that do not change the findings made for the regulations or 
result in no more than a minor change in the total estimated number of 
takes (or distribution by species or years), NMFS may publish a notice 
of proposed LOA in the Federal Register, including the associated 
analysis of the change, and solicit public comment before issuing the 
LOA.
    (c) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.86 for the activity identified in Sec.  217.80 (a) may be modified 
by NMFS under the following circumstances:
    (1) NMFS may modify (including augment) the existing mitigation, 
monitoring, or reporting measures (after consulting with Navy regarding 
the practicability of the modifications) if doing so creates a 
reasonable likelihood of more effectively accomplishing the

[[Page 5695]]

goals of the mitigation and monitoring set forth in the preamble for 
these regulations;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from Navy's monitoring from previous years;
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs; and
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
must publish a notice of proposed LOA in the Federal Register and 
solicit public comment; and
    (2) If NMFS determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in a LOA issued pursuant to Sec. Sec.  216.106 of 
this chapter and 217.86, a LOA may be modified without prior notice or 
opportunity for public comment. Notification will be published in the 
Federal Register within 30 days of the action.


Sec. Sec.  217.88-217.89   [Reserved]

[FR Doc. 2024-01558 Filed 1-26-24; 8:45 am]
BILLING CODE 3510-22-P


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