[Federal Register Volume 86, Number 170 (Tuesday, September 7, 2021)]
[Notices]
[Pages 50079-50085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19146]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB155]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Transit Protection Program Pier 
and Support Facilities Project at Naval Base Kitsap Bangor, Washington

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

ACTION: Notice; proposed modification of two incidental harassment 
authorizations; request for comments.

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SUMMARY: NMFS is proposing to modify the incidental harassment 
authorizations (IHAs) that were issued to the United States Navy (Navy) 
on September 25, 2020 for the Transit Protection Program (TPP) 
construction, due to an elevated harbor seal take rate at the nearby 
Naval Base Kitsap Bangor Service Pier Project that was unanticipated 
during the initial analysis for these TPP IHAs. NMFS is proposing to 
modify the TPP project IHAs to increase authorized take by Level A 
harassment of harbor seal in the Year 1 IHA, and add Level A harassment 
take of harbor seal to the Year 2 IHA. NMFS is also proposing to revise 
the shutdown mitigation provisions for harbor seals in the modified 
IHAs, and adjust the effective dates of both IHAs to accommodate the 
Navy's plans to delay the project. The monitoring and reporting 
measures remain the same as prescribed in the initial IHAs, and no 
additional take was requested for other species. NMFS will consider 
public comments on the requested modifications prior to making any 
final decision and agency responses will be summarized in the final 
notice of our decision.

DATES: Comments and information must be received no later than October 
7, 2021.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email to <a href="/cdn-cgi/l/email-protection#90d9c4c0bed4f1e6f9e3d0fefff1f1bef7ffe6"><span class="__cf_email__" data-cfemail="95dcc1c5bbd1f4e3fce6d5fbfaf4f4bbf2fae3">[email protected]</span></a>.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities 
without change. All personal identifying information (e.g., name, 
address) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHAs), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, 
please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have

[[Page 50080]]

an unmitigable adverse impact on the availability of the species or 
stock(s) for taking for subsistence uses (where relevant). Further, 
NMFS must prescribe the permissible methods of taking and other ``means 
of effecting the least practicable adverse impact'' on the affected 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stocks for taking for certain 
subsistence uses (referred to in shorthand as ``mitigation''); and 
requirements pertaining to the mitigation, monitoring and reporting of 
such takings are set forth.

History of Request

    On September 25, 2020, NMFS issued two incidental harassment 
authorizations (IHAs) to the Navy to incidentally harass, by Level A 
harassment and Level B harassment only, marine mammals during 
construction activities associated with the Transit Protection Program 
Pier and Support Facilities Project (TPP project) at Naval Base Kitsap 
Bangor (Kitsap Bangor) in Silverdale, Washington over two years (85 FR 
68291; October 28, 2020). Species authorized for take included killer 
whale (Orcinus orca), harbor porpoise (Phocoena phocoena), California 
sea lion (Zalophus californianus), Steller sea lion (Eumetopias 
jubatus), and harbor seal (Phoca vitulina). The effective dates of 
those IHAs were July 16, 2021 to January 15, 2022 (Year 1), and July 
16, 2022 to January 15, 2023 (Year 2).
    NMFS had previously issued an IHA for a separate project at the 
nearby Kitsap Bangor Service Pier (Service Pier IHA; 83 FR 30406; June 
28, 2018) which was subsequently reissued with revised effective dates 
on July 3, 2019 (reissued Service Pier IHA; 84 FR 31844). On October 
14, 2020, NMFS received a request from the Navy for a modification to 
the Service Pier IHA due to an elevated harbor seal take rate that was 
unanticipated. A small group of harbor seals (Phoca vitulina) 
repeatedly entered into and remained within the Level A harassment 
zone, resulting in a take rate that was projected to exceed the 
authorized limit for this species in the reissued Service Pier IHA (84 
FR 31844; July 3, 2019). The Navy felt that without an increase in 
authorized take of harbor seal, they would be forced to repeatedly shut 
down whenever animals entered into specified Level A harassment zones, 
which would likely prolong the duration of in-water construction 
activities and add increased costs to the project. NMFS published a 
notice of proposed modification of the reissued Service Pier IHA with a 
request for comments on November 24, 2020 (85 FR 74989), and issued a 
modified IHA to the Navy on December 30, 2020 (modified Service Pier 
IHA; 85 FR 86538) with an increase in authorized Level A harassment of 
harbor seal and revised shutdown mitigation provisions for harbor 
seals. The monitoring and reporting measures remained the same as 
prescribed in the reissued Service Pier IHA, and no additional take was 
authorized for other species.
    Following issuance of the modified Service Pier IHA (85 FR 86538; 
December 30, 2020), the Navy expressed similar concern regarding the 
potential for greater-than-anticipated harbor seal activity at the TPP 
project site, and requested modification of the TPP project IHAs (85 FR 
68291; October 28, 2020) given the new harbor seal information and 
sound source verification (SSV) results from the Service Pier project. 
Further, the Navy expects to delay the project to accommodate various 
regulatory schedules. The Navy may begin work during the current in-
water work window (July 16, 2021 to January 15, 2022) or the following 
in-water work window (July 16, 2022 to January 15, 2023).
    NMFS is proposing to modify the TPP project IHAs to increase 
authorized take by Level A harassment of harbor seal in the Year 1 IHA, 
and add authorized take by Level A harassment of harbor seal in the 
Year 2 IHA. NMFS is also proposing to revise the shutdown mitigation 
provisions for harbor seals in the modified IHAs, and adjust the 
effective dates of the IHAs to accommodate the Navy's planned project 
delays. The monitoring and reporting measures remain the same as 
prescribed in the initial IHAs, and no additional take is requested or 
proposed for species other than harbor seal.

Description of the Proposed Activity and Anticipated Impacts

    The modified IHAs would include the same construction activities 
(i.e. impact pile driving, vibratory pile driving, vibratory pile 
removal) in the same locations that were described in the initial IHAs. 
The monitoring and reporting measures remain the same as prescribed in 
the initial IHAs, while revisions to the required mitigation measures 
have been proposed. NMFS refers the reader to the documents related to 
the initial IHAs issued on September 25, 2020 (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-transit-protection-program-pier-and-support-facilities) for more 
detailed description of the project activities. Other relevant 
documents include the notice of proposed IHAs and request for comments 
(85 FR 48206; August 10, 2020) and notice of issued IHAs (85 FR 68291, 
October 28, 2020).

Detailed Description of the Action

    A detailed description of the construction activities is found in 
these previous documents. The location, time of year, and nature of the 
activities, including the types of piles and methods of installation 
and removal are identical to those described in the previous documents. 
However, as noted in the History of Request section, the Navy expects 
to delay the project to accommodate various regulatory schedules, and 
the Navy may begin work during the current in-water work window (July 
16, 2021 to January 15, 2022) or the following in-water work window 
(July 16, 2022 to January 15, 2023).

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to these 
modified IHAs as well. In addition, NMFS has reviewed the 2020 Stock 
Assessment Reports (Carretta et al., 2021, Muto et al., 2021), 
information on relevant Unusual Mortality Events, and recent scientific 
literature, and determined that no new information affects our original 
analysis of impacts under the initial IHAs. (However, the stock 
abundance of the West Coast Transient stock of killer whale increased 
from 243 to 349, Potential Biological Removal increased from 2.4 to 
3.5, and annual mortality and serious injury increased from 0 to 0.4 
animals. Additionally, the 2020 Pacific SAR (Carretta et al., 2021) 
states that the annual mortality and serious injury of Eastern U.S. 
Steller sea lions is 112 animals, rather than 113 stated in the initial 
IHAs.)

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the initial IHAs, which remains applicable to the issuance 
of these modified IHA. With the exception of harbor seal exposures, 
there is no new information on potential effects.
    For harbor seals, observations during monitoring for construction 
at the Kitsap Bangor Service Pier (draft report available at https://
www.fisheries.noaa.gov/national/

[[Page 50081]]

marine-mammal-protection/incidental-take-authorizations-construction-
activities) indicated that nine individuals (previously thought to be 8 
at the time that the reissued Service Pier IHA was modified (85 FR 
86538; December 30, 2020)), were regularly present in relatively close 
proximity to the pile driving operations at the Service Pier. NMFS 
modified the reissued Service Pier IHA (85 FR 86538; December 30, 
2020), and given the close proximity of the TPP site to the Service 
Pier site, there is a higher likelihood than initially considered for 
the TPP IHAs that these same individual harbor seals may incur 
permanent threshold shift (PTS) at a low-moderate level due to 
potential repeated, longer-duration exposure to higher levels of sound. 
(Of note, NMFS has issued a renewal IHA for the Navy's work at the 
Service Pier (86 FR 45963; August 17, 2021), so these seals could all 
occur in close proximity to construction at either site, some could 
occur in close proximity to construction at both sites, or they may no 
longer express interest in either project.)

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notice of issuance of 
the initial TPP IHAs (85 FR 68291; October 28, 2020). The types and 
sizes of piles, installation methods, and marine mammal stocks taken 
remain unchanged from the initial IHAs. The number of authorized takes 
is also identical with the exception of harbor seal.
    The in-water work window at Kitsap Bangor (when Endangered Species 
Act (ESA)-listed salmonids are least likely to be present) runs from 
July 16 through January 15. Pile installation for the Service Pier 
project started September 4, 2020 with both vibratory and impact pile 
drivers being employed.
    During monitoring for the Service Pier construction, protected 
species observers (PSOs) identified nine harbor seals that frequented 
the project area (sometimes entering and remaining within the Level A 
harassment zone) and became habituated to the in-water construction 
work. (Note that at the time of the modification to the Service Pier 
IHA, NMFS was aware of ``at least eight'' identified harbor seals, but 
since then, the Navy has submitted a preliminary monitoring report 
identifying nine different harbor seals, and the discussion below 
reflects the latest information as described in the Navy's preliminary 
monitoring report for construction at the Service Pier site.) These 
seals included five pups and four adults which were all individually 
identified. Two of the pups were seen in the project area on almost a 
daily basis, and were observed playing in the bubble curtain ring. 
(Three seals were identified as occurring in the project area almost 
daily at the time of the modification to the Service Pier IHA.) PSOs 
recorded seals occasionally exhibiting behaviors such as startle 
response and fast swimming away from the activity.
    These frequent harbor seal observations resulted in excessive 
shutdowns, and due to these frequent shutdowns, pile installation fell 
behind schedule. Further, based on the remaining in-water working days 
for the Service Pier project, the Navy expected, and NMFS concurred, 
that they would likely exceed authorized take. Additionally, SSV that 
was conducted during the initial Service Pier project work indicated 
that the Level A harassment zones for impact driving of 36-inch piles 
were too large, and modification of those zones was warranted. Please 
see the notice of the issued, modified Service Pier IHA (85 FR 86538; 
December 30, 2020) for additional discussion of that modification.
    For the TPP IHAs, the Navy used NMFS' User Spreadsheet to calculate 
the Level A harassment isopleths associated with project activities. 
Inputs to the model for the initial IHAs are shown in Table 1. Using 
this model, NMFS calculated a 158-m Level A harassment isopleth for 
phocids (i.e. harbor seals) during impact driving of 36-inch steel 
piles.

                           Table 1--Inputs for Determining Distances to Cumulative PTS Thresholds Used in the Initial TPP IHAs
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                                                                                                                                              Distance
                                                       Weighting                        Number of    Duration to   Number of                 from source
   Pile size and installation      Spreadsheet tab      factor        Source level    piles within     drive a    strikes per  Propagation      level
             method                     used          adjustment                       24-h period   single pile      pile       (xLogR)     measurement
                                                         (kHz)                                        (minutes)                               (meters)
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36-inch Steel-Impact...........  (E.1) Impact pile              2  173 dB SEL \a\...             4            30          400           15            10
                                  driving.
24-inch Steel-Vibratory........  (A.1) Vibratory              2.5  161 dB RMS.......         \b\ 5            60  ...........  ...........  ............
                                  pile driving.
30-inch Steel-Vibratory........  ..................  ............  166 dB RMS.......  ............  ............  ...........  ...........  ............
36-inch Steel-Vibratory........  ..................  ............  166 dB RMS.......  ............  ............  ...........  ...........  ............
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\a\ This source level includes an 8dB reduction from the use of a bubble curtain.
\b\ The Navy expects to install only 4 piles per day using a vibratory hammer; however, for purposes of calculating the Level A harassment zones, they
  have conservatively assumed that they may install 5 piles per day.

    The Navy conducted SSV in September 2020 at the Service Pier site. 
Testing was conducted during impact driving of four 36-inch steel piles 
both with and without bubble curtains. Given the close proximity of the 
Service Pier site to the TPP site, NMFS determined that it is 
appropriate to apply the SSV data from the Service Pier site to the TPP 
site as well. Therefore, NMFS applied the same source level and 
propagation loss recorded for impact driving of 36-inch piles at the 
Service Pier site to the Year 1 TPP IHA in this modification. NMFS 
inserted recorded SSV values for 36-inch piles into the user 
spreadsheet. The acoustic data for each pile strike were frequency 
weighted for phocids following NMFS guidance (2016) and then averaged. 
This resulted in an average phocid weighted single strike SEL of 177 dB 
re 1[mu]Pa2s at 10 m. Using the measured transmission loss at the 
Service Pier site of 25 (far field) and an assumption of 1,600 strikes 
per day (same as the initial TPP IHAs- 4 piles per day, 400 strikes per 
pile), the resulting isopleth for phocids was 92 meters (m; Wood et 
al., 2020). Therefore, NMFS has updated the Level A harassment isopleth 
for phocids during impact driving of 36-inch piles in the TPP Year 1 
IHA to 92 m. (Please see the notice of the issued, modified Service 
Pier IHA (85 FR 86538; December 30, 2020) for additional discussion 
regarding how this revised distance was applied to the take estimate 
for that IHA.) While vibratory is the preferred method of installation, 
impact driving was needed almost daily at the Service Pier project 
site, largely due to sediment conditions, and given the close proximity 
of the Service Pier site to the TPP site, NMFS expects that this could 
also occur at the TPP site.
    Even with the reduction of the phocids Level A harassment isopleth

[[Page 50082]]

during impact pile driving from 158 m to 92 m, additional Level A 
harassment takes of harbor seals are warranted, as the Service Pier 
preliminary monitoring report states that two habituated individuals 
were sighted almost daily at the project site, and frequently 
approached in close proximity to the piles and barges during vibratory 
pile driving (including within the 30 m shutdown zone for that 
project).
    The Service Pier preliminary monitoring report states that nine 
individually identifiable harbor seals frequented the project site. 
These individuals are believed to be habituated by varying degrees to 
in-water construction activities. Some of them regularly enter and 
remain within Level A harassment and shutdown zones, and as noted 
above, two of them (pups) were sighted almost daily at the project 
site. The remainder of the group of nine are observed less frequently, 
but still regularly. All nine seals were observed in the initial 
Service Pier Level A harassment zone on some occasions, with six or 
more observations on numerous days.
    We also note that the area ensonified above the Level A harassment 
threshold for impact installation of 36-inch piles in this proposed 
modified TPP Year 1 IHA has been reduced by approximately one third 
from the initial IHA, and the reissued Service Pier IHA. Based on the 
Service Pier preliminary monitoring report, NMFS and the Navy agreed 
that an increase of takes by Level A harassment, to 4 takes per day 
during Year 1, and 2 takes per day during Year 2, is appropriate. 
Therefore, NMFS is proposing to authorize 320 takes by Level A 
harassment during Year 1 (4 takes x 80 in-water work days), and 20 
takes by Level A harassment during Year 2 (2 takes x 10 in-water work 
days). This would allow for one take per day of each of the seals 
identified as visiting the Service Pier project site almost daily 
during Year 1 and Year 2, as well as two additional takes by Level A 
harassment that could be incurred by any of the other seven individuals 
if two of them entered the shutdown zone each day prior to detection, 
or a larger group entered every few days.
    As was the case for the initial IHAs, no impact pile driving is 
planned for Year 2, and the Level A harassment zones are smaller during 
Year 2. Further, while some of the habituated seals at the Service Pier 
site did come very close to the pile driving site (and even into the 
bubble curtain deployed for that project), many of the observations 
within the Level A harassment zone were farther from the pile driving 
location. Additionally, for Year 2 of the TPP project, harbor seals are 
unlikely to incur PTS during vibratory driving of 24-inch steel piles 
(half of the piles planned for installation in Year 2), given that the 
Level A harassment zone for phocids is 12 m (24-inch piles), and the 
Navy would have to shut down if any animal enters the area within 10 m 
of the pile driving site (though, as noted below, the Navy generally 
plans to shut down for most harbor seals during vibratory driving at 15 
m for 24-inch piles). Therefore, during Year 2 of the TPP project, they 
are only likely to incur PTS during vibratory driving of 30-inch steel 
piles, and even then, the zone is small (26 m). Most of the takes by 
Level A harassment in Year 1 and Year 2 are anticipated to occur to a 
smaller number of habituated individuals.
    The total numbers of incidental takes by Level A harassment and 
Level B harassment, including proposed updated Level A harassment take 
of harbor seal and as a percentage of population, is shown in Table 2 
below. The total number of takes (Level A harassment and Level B 
harassment combined) has not changed for harbor seal because the 
additional takes by Level A harassment are assumed to occur to animals 
that would have previously been counted as taken by Level B harassment. 
Therefore, NMFS is proposing to reduce authorized Level B harassment 
take of harbor seal from 2,800 to 2,500 during Year 1, and from 350 to 
330 in Year 2.

                                         Table 2--Total Numbers of Authorized Takes by Level A and Level B Harassment and as a Percentage of Population
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                                                                                                             Year 1                                                Year 2
                                                                                     -----------------------------------------------------------------------------------------------------------
                                                                                                                                                             Level B
              Species                        Stock               Stock abundance         Level A       Level B                                 Level A     harassment
                                                                                       harassment    harassment    Total take  (percent of   harassment       take       Total take  (percent of
                                                                                          take          take               stock)               take       (percent of           stock)
                                                                                                                                                             stock)
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Killer whale.......................  West Coast Transient.  243.....................             0            12  12 (4.9)................             0            12  12 (4.9).
Harbor porpoise....................  Washington Inland      11,233..................  ............         1,728  1,728 (15.4)............  ............           216  216 (1.9).
                                      Waters.
Steller sea lion...................  Eastern U.S..........  43,201..................  ............           320  320 (0.7)...............  ............            40  40 (0.1).
California sea lion................  United States........  257,606.................  ............         4,800  4,800 (1.9).............  ............           600  600 (0.2).
Harbor seal........................  Washington Inland      Unknown.................           320         2,500  2,820 (Unknown).........            20           330  350 (Unknown).
                                      Waters, Hood Canal.
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    As stated in the notice of issuance of the initial TPP IHAs (85 FR 
68291; October 28, 2020), no current abundance estimate is available 
for harbor seals. The most recent SAR abundance estimate for harbor 
seals in Washington inland waters is from 1999, which estimated 1,088 
harbor seals in the Washington Inland Waters, Hood Canal stock. It is 
generally believed that harbor seal populations have increased 
significantly since (e.g., Mapes, 2013). Jefferson et al., (2017) 
estimates an in-water abundance of 2,009 harbor seals in the Hood Canal 
region. The in-water abundance provided in Jefferson et al. (2017) did 
not provide an abundance or correction factor for animals hauled out of 
the water. Huber et al., 2001 estimated a correction factor of 1.53, 
but it is important to note that this correction factor applies for 
counts of hauled-out animals (e.g., animals hauled out multiplied by 
the correction factor for animals in-water = total abundance). 
Therefore, it is appropriate to apply this as a ``reverse'' correction 
factor (2,009/0.53 = 3,791) to account for animals hauled out. 
Therefore, the total stock abundance estimate is equal to the sum of 
the in-water abundance plus the estimated abundance of hauled-out 
animals (2,009 + 3,791 = 5,800 total Hood Canal harbor seals).
    The estimated instances of take of the Washington Inland Waters, 
Hood Canal stock of harbor seals in Year 1 appear high when compared to 
the latest SAR stock abundance from 1999 or the stock abundance of 
5,800 harbor seals described above. However, when other qualitative 
factors are used to inform an

[[Page 50083]]

assessment of the likely number of individual harbor seals taken, the 
resulting numbers are considered small in Year 1 and Year 2.
    As stated in the notice of the initial TPP IHAs (85 FR 68291; 
October 28, 2020), we anticipate that estimated takes of harbor seals 
are likely to occur only within some portion of the relevant 
population, rather than to animals from the stock as a whole. For 
example, takes anticipated to occur at Kitsap Bangor are expected to 
accrue to the same individual seals that routinely occur on haulouts at 
these locations, rather than occurring to new seals on each 
construction day. In summary, harbor seals taken as a result of the 
specified activities are expected to comprise only a limited portion of 
individuals comprising the overall relevant stock abundance. Therefore, 
we preliminarily find that small numbers of harbor seals will be taken 
relative to the population size of the Hood Canal stock of harbor seal 
in Year 1 and Year 2.

Description of Mitigation, Monitoring and Reporting Measures

    With the exception of the revised shutdown provisions for harbor 
seals discussed below, the monitoring, and reporting measures described 
here are identical to those included in the initial TPP IHAs (85 FR 
68291; October 28, 2020).
    In addition to the measures described later in this section, the 
Navy will employ the following mitigation measures:
    <bullet> For in-water construction, heavy machinery activities 
other than pile driving, if a marine mammal comes within 10 m, 
operations shall cease and vessels shall reduce speed to the minimum 
level required to maintain steerage and safe working conditions;
    <bullet> Conduct briefings between construction supervisors and 
crews and the marine mammal monitoring team prior to the start of all 
pile driving activity and when new personnel join the work, to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures;
    <bullet> If a species for which authorization has not been granted, 
or a species for which authorization has been granted but the 
authorized takes are met, is observed approaching or within the Level B 
harassment zone, pile driving and removal activities must shut down 
immediately using delay and shut-down procedures. Activities must not 
resume until the animal has been confirmed to have left the area or the 
observation time period, as indicated in condition 4(e) of the IHAs, 
has elapsed.
    The following mitigation measures apply to the Navy's in-water 
construction activities.
    Pile Driving Energy Attenuator--The Navy will use a marine pile-
driving energy attenuator (i.e., air bubble curtain system) during 
impact pile driving (Year 1 only). The use of sound attenuation will 
reduce SPLs and the size of the zones of influence for Level A 
harassment and Level B harassment. Bubble curtains will meet the 
following requirements:
    <bullet> The bubble curtain must distribute air bubbles around 100 
percent of the piling perimeter for the full depth of the water column;
    <bullet> The lowest bubble ring shall be in contact with the 
mudline for the full circumference of the ring, and the weights 
attached to the bottom ring shall ensure 100 percent mudline contact. 
No parts of the ring or other objects shall prevent full mudline 
contact; and
    <bullet> Air flow to the bubblers must be balanced around the 
circumference of the pile.
    Soft-Start--During impact driving (Year 1 only) the Navy is 
required to initiate sound from the hammer at reduced energy followed 
by a 30 second waiting period, then two subsequent reduced energy 
strike sets. A soft-start procedure will be implemented at the start of 
each day's impact pile driving or any time following cessation of 
impact pile driving for a period of thirty minutes or longer.
    Establishment of Shutdown Zones--The Navy will establish shutdown 
zones for all pile driving and removal activities. All shutdown zones 
remain the same as those included in the initial IHAs, except for the 
shutdown zone for harbor seals during impact pile driving of 36-inch 
steel piles (applicable to Year 1 IHA only) and vibratory driving of 
24-inch steel piles (applicable to Year 2 IHA only), for which the 
modifications are described below.
    As stated in the notice of the initial TPP IHAs (85 FR 68291; 
October 28, 2020), in addition to the shutdown zones listed in Table 3, 
the Navy plans to shut down pile driving if a cetacean is observed 
within the Level B harassment zone.
    The Navy conducted a SSV study during construction at the Service 
Pier (85 FR 86538; December 30, 2020). Using results from that SSV 
study, NMFS calculated a revised Level A harassment isopleth for harbor 
seals during impact pile driving of 36-inch piles of 92 m rather than 
158 m as calculated using proxy source levels in the initial TPP Year 1 
IHA (85 FR 68291; October 28, 2020). Therefore, at the Navy's request 
and with concurrence from NMFS, the shutdown zone for harbor seals has 
been reduced from 160 m to 95 m during impact driving of 36-inch steel 
piles.

                        Table 3--Shutdown Zones (m) During Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
                                                                                      Phocids
                                                                     Cetaceans     (Harbor Seal      Otariids
                                                                                       only)
----------------------------------------------------------------------------------------------------------------
Vibratory Driving of 24-inch Piles..............................              65              15              10
Vibratory Driving of 30-inch and 36-inch Piles..................              65              30              10
All Impact Pile Driving.........................................             355              95              15
----------------------------------------------------------------------------------------------------------------

    Further, given the Navy's practicability concerns regarding 
frequent shutdowns, NMFS reduced the shutdown zone for vibratory 
driving of 24-inch piles to 15 m (applicable to Year 2 only). This 
shutdown zone was previously 30 m (for all vibratory pile driving). A 
15 m shutdown zone still includes the entire 12 m Level A harassment 
zone for phocids. The shutdown zones and the Level A harassment and 
Level B harassment isopleths for all other pile driving and species 
groups remain unchanged from the notice of the issuance of the initial 
IHAs (85 FR 68291; October 28, 2020).
    The reduced size of the shutdown zones for harbor seals discussed 
above, along with the increase in authorized take by Level A harassment 
should prevent the Navy from exceeding its authorized take limit for 
this species. However, even with a 95-m shutdown zone during impact 
driving and a 15 or 30-m shutdown zone during vibratory driving, the 
Navy may continue to experience frequent work stoppages due

[[Page 50084]]

to frequent visits by habituated harbor seals. This could result in 
schedule delays and cost overruns and could potentially require an 
extra year of in-water construction activities. Therefore, it is not 
practicable for the Navy to shut down or delay pile driving activities 
every time a harbor seal is observed in a shutdown zone.
    Therefore, shutdowns would be initiated for harbor seals when 
observed approaching or entering the Level A harassment zones as 
described above, except when one or more of the two habituated harbor 
seals identified as daily visitors approaches or enters an established 
shutdown zone. In such cases, a single take by Level A harassment shall 
be recorded for each individual seal for the entire day, and operations 
will be allowed to continue without interruption. The behavior of these 
two daily visitors will be monitored and recorded as well as the 
duration of time spent within the harassment zones. This information 
will be recorded individually for each of the two seals. If any other 
seals, including the seven habituated seals identified as frequent 
visitors, approaches or enters into a Level A harassment zone, shutdown 
must occur.
    The minimum shutdown zone during any pile driving activity will 
always be at least 10 m. Shutdown is mandatory whenever an animal is 
within 10 m of pile driving location regardless of the exception noted 
above. In such instances, in-water pile driving operations may only 
continue after 15 minutes have passed or the animal is seen heading 
away from the 10-m shutdown zone.
    The revisions in the mitigation, including the shutdown exception 
for habituated harbor seals, are necessary to allow for the practicable 
completion of the Navy's specified activities. Although the predicted 
Level A harassment take numbers are higher than initially projected 
because of the behavior of the eight habituated animals, the likelihood 
of Level A harassment take of other individuals is lower than initially 
expected because the Level A harassment zone is smaller than initially 
predicted based on incorporation of the Service Pier SSV data. NMFS has 
considered the revised mitigation measures for harbor seals and 
determined that they will effect the least practicable adverse impact 
on harbor seals and their habitat. Nothing has changed since the 
initial IHAs for other species or stocks, and our analysis and 
conclusions remain the same.
    PSOs--The placement of PSOs during all pile driving and removal 
activities are described in detail in the Monitoring and Reporting 
section of the notice of the initial IHAs (85 FR 68291; October 28, 
2020) and remain unchanged. Should environmental conditions deteriorate 
such that marine mammals within the entire shutdown zone will not be 
visible (e.g., fog, heavy rain), pile driving and removal must be 
delayed until the PSO is confident marine mammals within the shutdown 
zone could be detected.
    Monitoring for Level A and Level B Harassment--The Navy will 
monitor the Level B harassment zones (areas where SPLs are equal to or 
exceed the 160 dB rms threshold for impact driving and the 120 dB rms 
threshold during vibratory pile driving) to the extent practicable and 
the Level A harassment zones. Placement of PSOs on the pier, shoreline, 
and a vessel (see Monitoring and Reporting section in the notice of the 
initial IHAs (85 FR 68291; October 28, 2020)) around the TPP site will 
allow PSOs to observe marine mammals within the Level B harassment 
zones.
    Pre-activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving/removal of 
30 minutes or longer occurs, PSOs will observe the shutdown and Level A 
harassment and Level B harassment zones for a period of 30 minutes. 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. When a marine mammal for which Level B 
harassment take is authorized is present in the Level B harassment 
zone, activities may begin, and Level B harassment take will be 
recorded. If the entire Level B harassment zone is not visible at the 
start of construction, pile driving activities can begin. If work 
ceases for more than 30 minutes, the pre-activity monitoring of the 
shutdown zones will commence.
    Reporting--PSOs must record specific information as described in 
the Federal Register notice of the issuance of the initial IHAs (85 FR 
68291; October 28, 2020). Within 90 days after completion of pile 
driving and removal activities, the Navy must provide NMFS with a 
monitoring report which includes summaries of recorded takes and 
estimates of the number of marine mammals that may have been harassed. 
If no comments are received from NMFS within 30 days, the draft final 
report will constitute the final report. If comments are received, a 
final report addressing NMFS comments must be submitted within 30 days 
after receipt of comments.
    In the unanticipated event that: (1) The specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHAs 
(if issued), such as an injury, serious injury or mortality; (2) a live 
marine mammal is found stranded, whether on shore or in or on any 
structure or vessel; or (3) personnel involved in the construction 
activities discover an injured or dead marine mammal, the Navy will 
follow the protocols described in the IHAs.
    Based on our evaluation of the applicant's measures in 
consideration of the increased estimated take for harbor seals, as well 
as the modified shutdown provisions for harbor seals, NMFS has re-
affirmed the determination that the required mitigation measures 
provide the means effecting the least practicable impact on harbor 
seals and their habitat.

Preliminary Determinations

    With the exception of the revised harbor seal shutdown provisions, 
the Navy's in-water construction activities as well as monitoring and 
reporting requirements are unchanged from those in the initial IHAs. 
The effects of the activity on the affected species and stocks, taking 
into consideration the modified mitigation and related monitoring 
measures, remain unchanged, notwithstanding the increase to the 
authorized amount of harbor seal take by Level A harassment. The nature 
of the pile driving project precludes the likelihood of serious injury 
or mortality. While injury could occur in a small group of habituated 
animals (nine or fewer), it would likely be limited to PTS at lower 
frequencies where pile driving energy is concentrated, and unlikely to 
result in impacts to individual fitness, reproduction, or survival of 
these individuals whose best hearing is in a higher frequency range.
    With approximately 80 in-water construction days during Year 1 and 
10 in-water construction days in Year 2, NMFS is proposing to increase 
authorized harbor seal take by Level A harassment to 320 in Year 1, and 
20 in Year 2. Even in consideration of the increased numbers of take by 
Level A harassment, the impacts of these exposures, as noted above, may 
result in moderate injury to a limited number of harbor seals but are 
not expected to accrue to the degree that the fitness of any 
individuals is markedly impacted. Further, given the small number of 
individuals potentially impacted in this manner, no impacts on annual 
rates of recruitment or survival are likely to result.
    Separately, as described previously, the increase in Level A 
harassment take corresponds to a commensurate decrease in the predicted 
number of

[[Page 50085]]

Level B harassment, and the total number of takes remains unchanged. 
Therefore, in consideration of this, and the harbor seal stock 
abundance information discussed in the Estimated Take section above, we 
re-affirm that small numbers of harbor seals will be taken relative to 
the population size of the Washington Inland Waters, Hood Canal stock 
of harbor seal.
    In conclusion, there is no new information suggesting that our 
negligible impact analysis or finding for harbor seals should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily reaffirmed the following: (1) The 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) small numbers of marine mammals will be 
taken relative to the affected stock abundances; (4) the Navy's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes, as no relevant subsistence uses of marine mammals 
are implicated by this action; and (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the modification of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the issuance of the modified IHAs 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this document 
prior to concluding our NEPA process or making a final decision on the 
IHA requests.

Proposed Authorization

    NMFS proposes to modify the IHAs to the Navy for in-water 
construction associated with the TPP project on Naval Base Kitsap 
Bangor, Washington. The only changes are increases in the authorized 
take of harbor seal take by Level A harassment from 20 to 320 in Year 
1, and 0 to 20 in Year 2, changes to the shutdown requirements for 
harbor seals in both the Year 1 and Year 2 IHAs, and changes to the 
effective dates of the IHAs. Drafts of the proposed modified IHAs can 
be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Request for Public Comments

    We request comment on our proposed modification of the IHAs for the 
Navy's in-water construction activities associated with the TPP 
project. We also request comment on the potential for renewal of these 
modified IHAs as described in the paragraph below. Please include with 
your comments any supporting data or literature citations to help 
inform our final decision on the request for MMPA authorizations or 
subsequent Renewal IHAs.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
Renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical, or nearly identical, activities as described in the 
Description of the Proposed Activity and Anticipated Impacts section of 
this notice is planned or (2) the activities as described in the 
Description of the Proposed Activity and Anticipated Impacts section of 
this notice would not be completed by the time the IHA expires and a 
Renewal would allow for completion of the activities beyond that 
described in this notice, provided all of the following conditions are 
met:
    <bullet> A request for renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
    <bullet> The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    <bullet> Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: August 31, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-19146 Filed 9-3-21; 8:45 am]
BILLING CODE 3510-22-P


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