30412 Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 

Estimated Total Annual Burden 

Hours: 10,730. 

Estimated Total Annual Cost to 

Public: $978,013. 

Respondent’s Obligation: Mandatory. 

Legal Authority: Magnuson-Stevens 

Fishery Conservation and Management 

Act (16 U.S.C. 1801 et seq.), and the 

Atlantic Tunas Convention Act of 1975 

(16 U.S.C. 971 et seq.). 

IV. Request for Comments 

We are soliciting public comments to 

allow the Department/Bureau to: (a) 

Evaluate whether the proposed 

information collection is necessary for 

the proper functions of the Department, 

including whether the information will 

have practical utility; (b) Evaluate the 

accuracy of our estimate of the time and 

cost burden for this proposed collection, 

including the validity of the 

methodology and assumptions used; (c) 

Evaluate ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and (d) Minimize the 

reporting burden on those who are to 

respond, including the use of automated 

collection techniques or other forms of 

information technology. 

Comments that you submit in 

response to this notice are a matter of 

public record. We will include or 

summarize each comment in our request 

to OMB to approve this ICR. Before 

including your address, phone number, 

email address, or other personal 

identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you may ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Sheleen Dumas, 

Department PRA Clearance Officer, Office of 

the Chief Information Officer, Commerce 

Department. 

[FR Doc. 2021–11998 Filed 6–7–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB129] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Elkhorn Slough 

Tidal Marsh Restoration, Phase II in 

Monterey County, California 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; request for comments on 

proposed Renewal incidental 

harassment authorization (IHA). 

SUMMARY: NMFS received a request from 

the California Department of Fish and 

Wildlife (CDFW) for the Renewal of 

their currently active incidental 

harassment authorization (IHA) to take 

marine mammals incidental to the 

Elkhorn Slough Tidal Marsh Restoration 

Project (Phase II) which includes the 

excavation and movement of soil with 

heavy machinery for marsh restoration 

in Monterey County, California. These 

activities consist of activities that are 

covered by the current authorization but 

will not be completed prior to its 

expiration. Pursuant to the Marine 

Mammal Protection Act, prior to issuing 

the currently active IHA, NMFS 

requested comments on both the 

proposed IHA and the potential for 

renewing the initial authorization if 

certain requirements were satisfied. The 

Renewal requirements have been 

satisfied, and NMFS is now providing 

an additional 15-day comment period to 

allow for any additional comments on 

the proposed Renewal not previously 

provided during the initial 30-day 

comment period. 

DATES: Comments and information must 

be received no later than June 23, 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 ITP.corcoran@noaa.gov. 

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/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act 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: Kim 

Corcoran, Office of Protected Resources, 

NMFS, (301) 427–8401. Electronic 

copies of the original application, 

Renewal request, and supporting 

documents (including NMFS Federal 

Register notices of the original proposed 

and final authorizations, and the 

previous IHA), as well as a list of the 

references cited in this document, may 

be obtained online at: https://

www.fisheries.noaa.gov/permit/ 

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

of problems accessing these documents, 

please call the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The Marine Mammal Protection Act 

(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 such species or stocks for 

taking for certain subsistence uses 

(referred to here as ‘‘mitigation 

measures’’). Monitoring and reporting of 

such takings are also required. The 

meaning of key terms such as ‘‘take,’’ 

‘‘harassment,’’ and ‘‘negligible impact’’ 

can be found in section 3 of the MMPA 

(16 U.S.C. 1362) and the agency’s 

regulations at 50 CFR 216.103. 

NMFS’ regulations implementing the 

MMPA at 50 CFR 216.107(e) indicate 

that IHAs may be renewed for 

additional periods of time not to exceed 

one year for each reauthorization. In the 

notice of proposed IHA for the initial 

authorization, NMFS described the 

circumstances under which we would 

consider issuing a Renewal for this 

activity, and requested public comment 

on a potential Renewal under those 


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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 30413 

circumstances. Specifically, on a caseby-case basis, NMFS may issue a onetime 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 Detailed 

Description of Specified Activities 

section of the initial IHA issuance 

notice is planned or (2) the activities as 

described in the Detailed Description of 

Specified Activities section of the initial 

IHA issuance notice would not be 

completed by the time the initial IHA 

expires and a Renewal would allow for 

completion of the activities beyond that 

described in the DATES section of the 

notice of issuance of the initial IHA, 

provided all of the following conditions 

are met: 

(1) 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). 

(2) The request for renewal must 

include the following: 

• 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). 

• 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. 

(3) 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. 

An additional public comment period 

of 15 days (for a total of 45 days), with 

direct notice by email, phone, or postal 

service to commenters on the initial 

IHA, is provided to allow for any 

additional comments on the proposed 

Renewal. A description of the Renewal 

process may be found on our website at: 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentalharassment-authorization-renewals. 

Any comments received on the potential 

Renewal, along with relevant comments 

on the initial IHA, have been considered 

in the development of this proposed 

IHA Renewal, and a summary of agency 

responses to applicable comments is 

included in this notice. NMFS will 

consider any additional public 

comments prior to making any final 

decision on the issuance of the 

requested Renewal, and agency 

responses will be summarized in the 

final notice of our decision. 

The NDAA (Pub. L. 108–136) 

removed the ‘‘small numbers’’ and 

‘‘specified geographical region’’ 

limitations indicated above and 

amended the definition of ‘‘harassment’’ 

as it applies to a ‘‘military readiness 

activity.’’ 

National Environmental Policy Act 

The current action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 (incidental 

harassment authorizations 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 proposed renewal 

qualifies to be categorically excluded 

from further NEPA review just as the 

initial IHA did. 

History of Request 

On March 13, 2020, NMFS issued an 

IHA to CDFW to take marine mammals 

incidental to construction activities 

associated with the second phase of the 

tidal marsh restoration project in 

Elkhorn Slough, California (85 FR 

14640; March 13, 2021), effective from 

June 01, 2020 through May 31, 2021. On 

May 11, 2021, NMFS received an 

application for the Renewal of that 

initial IHA. Although the request was 

not received 60 days prior to the 

expiration date of the initial IHA, the 

applicant has been informed that the 

Renewal may not be issued until 60 

days past the May 11, 2021 submission 

date. As described in the application for 

Renewal IHA, the activities for which 

incidental take is requested consist of 

activities that are covered by the initial 

authorization but will not be completed 

prior to its expiration. As required, the 

applicant also provided a preliminary 

monitoring report (available at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-tidalmarsh-restoration-project-elkhornslough-phase-ii-2020) which confirms 

that the applicant has implemented the 

required mitigation and monitoring, and 

which also shows that no impacts of a 

scale or nature not previously analyzed 

or authorized have occurred as a result 

of the activities conducted. However, 

NMFS did note that there were a few 

instances where work continued during 

the pupping season during what was 

noted as foggy or hard to see conditions. 

Despite the low visibility, there were no 

unexpected changes in behavior noted 

during the activity. These instances 

were rare and CDFW has been reminded 

to shut down activity during times 

where monitoring cannot be efficiently 

implemented, especially during 

pupping season (March–July). 

Description of the Specified Activities 

and Anticipated Impacts 

CDFW is unable to complete all of the 

planned work under the initial 2020 

IHA for Phase II of the Elkhorn Slough 

Tidal Marsh Restoration Project. The 

initial IHA planned to restore 58 acres 

of saltmarsh habitat in two areas, 

Minhoto-Hester Restoration Area 

(subareas M4a–b, M5, and M6) and the 

Seal Bend Restoration Area (S1–S4) 

(Figure 1). To date, the majority of 

earthwork at the Minhoto-Hester 

Restoration Area has been completed, 

including earthwork in subareas M4a–b 

and M5, however outstanding work in 

subareas M5 and M6 will not be 

completed before the May 31, 2021 IHA 

expiration date. Therefore, CDFW has 

requested a Renewal IHA to authorize 

the take of marine mammals for a subset 

of the initially planned work that has 

not been completed which will include 

the outstanding work in subareas M5 

and M6. A separate IHA application will 

be submitted by CDFW for the work at 

the Seal Bend Restoration Area which 

has not been initiated to date, and is 

expected to start later in the year. Of 

note, the work in the Minhoto-Hester 

Restoration Area has taken more days to 

conduct than initially expected, but the 

completion of work in that Area is still 

expected to occur within the total 

number of workdays contemplated in 

the initial IHA. 

Anticipated impacts would include 

only Level B harassment of marine 

mammals (though fewer, since the 

duration of the proposed activity is 

shorter). CDFW’s request is for one 

species of pinniped by Level B 

harassment: Harbor seal (Phoca vitulina 

richardii). Monitoring results from the 

2020 restoration activities indicate that 

observed exposures above Level B 

harassment thresholds were well below 

the amount authorized in associated 

with the amount of work conducted to 


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30414 Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 

date (see monitoring report in renewal 

request letter). Thus, the subset of Level 

B harassment take remaining from that 

authorized under the 2020 IHA will be 

sufficient to cover the remaining 2021 

restoration work at the Minhoto-Hester 

Restoration Area. 

Detailed Description of the Activity 

As discussed earlier, this is a Renewal 

to complete the subset of the activity not 

completed under the initial IHA (85 FR 

14640; March 13, 2020). Due to 

construction delays attributed to severe 

weather in the winter of 2020 which 

limited the ability for heavy equipment 

to access and mobilize onsite in 

addition to smaller construction crew 

sizes than anticipated, only 118 days of 

work occurred between August 2020 

and April 2021 of the 180 days 

anticipated and authorized for this 

project. The completed work to date 

includes the majority of earthwork at 

Minhoto-Hester Restoration Area in 

subareas M4a–b, and M5. As of the 

submission of their Renewal request, 62 

days of work remains at the MinhotoHester Restoration Area which will 

occur between the time the Renewal is 

issued and September 2021. The 

applicant requests authorization for the 

work remaining as of June 1, 2021 

which includes placement of additional 

fill in subareas M5 and M6 (see Table 

1) to raise the subsided marsh plain; 

excavation of tidal channels in all 

subareas; and rerouting tidal flow from 

the existing tidal channel adjacent to 

Yampah Marsh to the new tidal channel 

that bisects subareas M4b and M5. All 

of the remaining work is consistent with 

work described in the initial IHA. Table 

1 (same as Table 1 from application and 

initial proposed) presents the acreages 

and extents of proposed fill within each 

marsh subarea, as well as the volume of 

fill required for each marsh subarea to 

be restored. The upland borrow area, 

onsite, would be used as the fill source. 

The project would rely primarily on 

natural vegetation recruitment in the 

restored marsh areas. 

This Renewal request is identical to 

that of the 2020 IHA, in that it is 

comprised of a subset of the work that 

was covered in the initial IHA. The 

location, timing, and nature of the 

activities, including the types of 

equipment planned for use, are identical 

to those described in the previous 

notices. The proposed Renewal would 

be effective until May 31, 2022 and does 

not authorize activities related to 

restoration work in the Seal Bend 

Restoration Area as a subsequent IHA 

application will be submitted by CDFW 

for such activities at a later date. 

The mitigation and monitoring will be 

identical to that of the 2020 IHA. A 

detailed description of the restoration 

activities for which take is proposed 

may be found in the notices of the 

proposed (84 FR 72308; December 31, 

2019) and the final IHAs (85 FR 14640; 

March 13, 2020) for the 2020 

authorization. All documented 

associated with the 2020 IHA (i.e., the 

IHA application, proposed IHA, final 

IHA, public comments, monitoring 

reports, etc.) can be found on NMFS’s 

website, https://www.fisheries.noaa.gov/ 

action/incidental-take-authorizationtidal-marsh-restoration-project-elkhornslough-phase-ii-2020. 


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Figure 1 - Overview of Elkhorn Slough Tidal Marsh Restoration Project 
Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 30415 

TABLE 1—VOLUME OF FILL REQUIRED IN EACH SUB-AREA IN MINHOTO-HESTER RESTORATION AREA

Subarea Area 

(acres) 

Fill area 

(acres) 

Estimated 

fill volume 

(CY) 

Sub-area M4a .............................................................................................................................. 2.5 1.0 46,880 

Sub-area M4b .............................................................................................................................. 9.7 7.3 44,516 

Sub-area M5 ................................................................................................................................ 10.2 7.8 57,466 

Sub-area H6 ................................................................................................................................ 6.8 5.5 33,792 

Total ...................................................................................................................................... 29.2 21.6 182,654 

Source: ESA 2014a. 

1 Volumes are mid-range estimates; actual volumes may be higher or lower. 

Description of Marine Mammals 

A description of the marine mammals 

in the area of the activities for which 

authorization of take is proposed here, 

including information on abundance, 

status, distribution, and hearing, may be 

found in the notices of the proposed and 

final IHAs for the initial authorization. 

NMFS has reviewed the monitoring data 

from the initial IHA, recent draft Stock 

Assessment Reports, information on 

relevant Unusual Mortality Events, and 

other scientific literature, and 

determined that neither this nor any 

other new information affects which 

species or stocks have the potential to 

be affected or the pertinent information 

in the Description of the Marine 

Mammals in the Area of Specified 

Activities contained in the supporting 

documents for the initial IHA. 

Potential Effects on Marine Mammals 

and Their Habitat 

A description of the potential effects 

of the specified activity on marine 

mammals and their habitat for the 

activities for which take is proposed 

here may be found in the notices of the 

proposed and final IHAs for the initial 

authorization. NMFS has reviewed the 

monitoring data from the initial IHA, 

recent draft Stock Assessment Reports, 

information on relevant Unusual 

Mortality Events, and other scientific 

literature, and determined that neither 

this nor any other new information 

affects our initial analysis of impacts on 

marine mammals and their habitat. 

Estimated Take 

A detailed description of the methods 

and inputs used to estimate take for the 

specified activity are found in the final 

IHA notice for the initial authorization. 

Specifically, the activity, days of 

operation, and marine mammal density 

data applicable to this authorization 

remain unchanged from the previously 

issued IHA. Similarly, the stock taken, 

method of take, and type of take remain 

unchanged from the previously issued 

IHA. The number of Level B harassment 

takes will be fewer since the proposed 

Renewal is for a subset of the days 

which can be seen in Table 2. The 

authorized take was determined by 

multiplying the daily take estimate 

(37.53) by the number of construction 

days remaining (62 days) at MinhotoHester Restoration Area and rounding 

up (Table 2). 

TABLE 2—CALCULATED TAKE AND PERCENTAGE OF STOCK EXPOSED

Species 

Authorized take 

% population 4

Level B Level A 

Pacific Harbor Seal .......................... 417 1 max seals/day (9 percent 2) (62 days 3) = 2,327 ............................. 0 1.3 

1 Maximum number of seals observed/day between January 2018 and April 2019 by Reserve Otter Monitoring Project. 

2 % Take from Phase I. 

3 Number of construction days remaining in Minhoto-Hester Restoration Area. 

4 Data from U.S. Pacific Marine Mammal Stock Assessments: 2015 (Carretta et al., 2015). 

All estimates are considered 

conservative. Construction activities 

will occur in sections. Noise from 

construction activities in more southern 

sections may thus cause fewer 

disturbances to seals given their 

distance from seal haul outs 

(approximately 100 m and greater). 

There are unlikely to be 417 animals in 

the project area on any given day. Not 

all seals that previously used the haul 

outs within the footprint of the 

construction are expected use the haul 

outs just outside the project based on 

observations from Phase I of the project. 

Some seals may seek alternative haul 

out habitat in other parts of Elkhorn 

Slough. 

Description of Proposed Mitigation, 

Monitoring and Reporting Measures 

The proposed mitigation, monitoring, 

and reporting measures included as 

requirements in this authorization are 

identical to those included in the 

Federal Register notice announcing the 

issuance of the initial IHA, and the 

discussion of the least practicable 

adverse impact included in that 

document and the notice of the 

proposed IHA (84 FR 72308; December 

31, 2019) remains accurate. The 

following measures are proposed for 

this renewal: 

Timing Restrictions—All work must 

be conducted during daylight hours 

when visual monitoring of marine 

mammals can be implemented. If 

environmental conditions deteriorate 

such that marine mammals within the 

entire shutdown zone would not be 

visible (e.g., fog, heavy rain), 

construction must be delayed until the 

PSO is confident marine mammals 

within the shutdown zone could be 

detected. 

Visual Monitoring—Required 

monitoring must be conducted by 

dedicated, trained, NMFS-approved 

PSO(s). PSOs shall establish a Level B 

harassment zone within 300 m of all 

construction activities. When 

construction activities occur either, (1) 

in water or (2); within the boundaries of 

the two tidal restoration areas, MinhotoHester and Seal Bend identified in 


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30416 Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 

Figure 1, monitoring must occur every 

other day when work is occurring. 

When construction activities occur 

near the ‘‘borrow’’ areas where marsh 

fill material is gathered, monitoring 

must occur every fifth day when work 

is occurring, unless the borrow area is 

more than 300 m from any area where 

marine mammals have been observed. 

Occurrence of marine mammals within 

the Level B harassment zone must be 

communicated to the construction lead 

to prepare for the potential shutdown 

when required. 

Pre-construction clearance and 

Ramp-up—A 30-minute pre-clearance 

observation period must occur prior to 

the start of ramp-up and construction 

activities. CDFW must adhere to the 

following pre-clearance and ramp-up 

requirements: (i) Construction activities 

must not be initiated if any marine 

mammal is within 10 m of planned 

operations. If a marine mammal is 

observed within 10 m of planned 

operations during the 30-minute preclearance period, ramp-up must not 

begin until the animal(s) has been 

observed exiting the zones or until an 

additional time period has elapsed with 

no further sightings (15 minutes for 

small odontocetes and pinnipeds and 30 

minutes for all other species), (ii) The 

construction contractor must begin 

construction activities gradually each 

day (e.g., ramp up by moving around the 

project area and starting equipment 

sequentially). 

Shutdown Requirements—For heavy 

machinery work, if a marine mammal 

comes within 10 m of such operations, 

operations must cease and vessels shall 

reduce speed to the minimum level 

required to maintain steerage and safe 

working conditions. 

Pupping Season—Construction 

activities may not be initiated: (1) 

Within 300 m of a mom/pup pair that 

is hauled out, or (2) within 100 m of a 

mom/pup pair in the water. If there is 

a gap in construction activities of more 

than an hour or if construction moves to 

a different area, this initiation protocol 

must again be implemented. During site 

containment activities that are 

underway, heavy machinery must not 

approach closer than 100 m of where 

mothers and pups are actively hauled 

out. If a pup less than one week old 

(neonate) comes within 20 m of where 

heavy machinery is working, 

construction activities in that area must 

be shutdown or delayed until the pup 

has left the area. In the event that a pup 

less than one week old remains within 

those 20 m, NMFS will be consulted to 

determine the appropriate course of 

action. 

Activities must cease if a marine 

mammal species for which take was not 

authorized, or a species for which 

authorization was granted but the 

authorized number of takes have been 

met, is observed by Protected Species 

Observers (PSOs) approaching or within 

the Level B harassment zone. Activities 

must not resume until the animal is 

confirmed to have left the area. 

Construction Activities—A NMFS 

approved PSO must conduct biological 

resources awareness training for 

construction personnel. The awareness 

training will be provided to brief 

construction personnel on identification 

of marine mammals (including 

neonates) and the need to avoid and 

minimize impacts to marine mammals. 

If new construction personnel are added 

to the project, the contractor shall 

ensure that the personnel receive the 

mandatory training before starting work. 

Construction activities must not be 

initiated if any marine mammal is 

within 10 m of planned operations. If a 

marine mammal is observed within 10 

m of planned operations during the 30- 

minute pre-clearance period, ramp-up 

must not begin until the animal(s) has 

been observed exiting the zones or until 

an additional time period has elapsed 

with no further sightings (15 minutes for 

small odontocetes and pinnipeds and 30 

minutes for all other species). 

Furthermore, the PSO will have the 

authority to stop project activities if 

marine mammals approach or enter the 

Level B Harassment Zone and/or at any 

time for the safety of any marine 

mammals. Work will commence only 

with approval of the PSO to ensure that 

no marine mammals are present in the 

Level B Harassment Zone. 

Ramp Up—To reduce the risk of 

potentially startling marine mammals 

with a sudden intensive sound, the 

construction contractor must begin 

construction activities gradually each 

day by moving around the project area 

and starting machinery one at a time. 

Based on our evaluation of the 

applicant’s proposed measures, as well 

as other measures considered by NMFS, 

NMFS has preliminarily determined 

that the authorized mitigation measures 

provide the means effecting the least 

practicable 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 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density). 

• 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 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas). 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors. 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks. 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat). 

• Mitigation and monitoring 

effectiveness. 

PSOs—PSOs shall be used to detect, 

document, and minimize impacts to 

marine mammals, as well as, 

communicate with and instruct relevant 

construction crew with regard to the 

presence of marine mammals and 

mitigation requirements. Independent 

PSOs (i.e., not construction personnel) 

who have no other assigned tasks during 

monitoring periods must be used. 

Biological monitoring will begin 30 

minutes before work begins and will 

continue until 30 minutes after work is 

completed each day. 

PSOs will be placed at the best 

vantage point(s) practicable to monitor 

for marine mammals within the Level B 

harassment zone, defined above. If 

multiple construction activities occur 

simultaneously, enough PSOs must be 

on duty to monitor all Level B 

Harassment zones. 

Qualifications for PSOs for visual 

monitoring include: 

• Visual acuity in both eyes 

(correction is permissible) sufficient for 

discernment of harbor seals on land or 

in the water with ability to estimate 

target size and distance; use of 

binoculars may be necessary to correctly 

identify the target. 

• Successfully attained a bachelor’s 

degree from an accredited college or 

university with a major in one of the 


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Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 30417 

natural sciences and a minimum of 30 

semester hours or equivalent in the 

biological sciences and at least one 

undergraduate course in math or 

statistics. The educational requirements 

may be waived if the PSO has acquired 

the relevant skills through alternate 

experience. Requests for such a waiver 

must include written justification. 

Alternate experience that may be 

considered includes, but is not limited 

to (1) secondary education and/or 

experience comparable to PSO duties; 

(2) previous work experience 

conducting academic, commercial, or 

government-sponsored marine mammal 

surveys; or (3) previous work experience 

as a PSO; the PSO should demonstrate 

good standing and consistently good 

performance of PSO duties. 

• Experience and ability to conduct 

field observations and collect data 

according to assigned protocols (this 

may include academic experience). 

• Experience or training in the field 

identification of marine mammals, 

including the identification of 

behaviors. 

• Sufficient training, orientation, or 

experience with the construction 

operation to provide for personal safety 

during observations. 

• Writing skills sufficient to prepare a 

report of observations including but not 

limited to the number and species of 

marine mammals observed; dates and 

times when construction activities were 

conducted; dates and times when 

construction activities were suspended 

to avoid potential incidental injury from 

construction sound or visual 

disturbance of marine mammals 

observed; and marine mammal 

behavior. 

• Ability to communicate orally, by 

radio or in person, with project 

personnel to provide real-time 

information on marine mammals 

observed in the area as necessary. 

(a) PSOs must be provided with the 

equipment necessary to effectively 

monitor for marine mammals in order to 

record species, the distance from 

species’ location to the construction 

activities, behaviors, and responses to 

construction activities. 

(b) The PSO must also conduct 

biological resources awareness training 

for construction personnel. The 

awareness training will be provided to 

brief construction personnel on 

identification of marine mammals 

(including neonates) and the need to 

avoid and minimize impacts to marine 

mammals. If new construction 

personnel are added to the project, the 

contractor shall ensure that the 

personnel receive the mandatory 

training before starting work. 

Monitoring requirements also include: 

Pre-Activity Monitoring—Pre and post 

construction daily censuses—A census 

of marine mammals in the project area 

and the area surrounding the project 

must be conducted 30 minutes prior to 

the beginning of construction on 

monitoring days, and again 30 minutes 

after the completion of construction 

activities. The following data will be 

collected: 

• Environmental conditions (weather 

condition, tidal conditions, visibility, 

cloud cover, air temperature and wind 

speed 

• Numbers of each marine mammal 

species spotted 

• Location of each species spotted, 

including distance from construction 

activity 

• Status (in water or hauled out) 

• Behavior 

Hourly Counts—Conduct hourly 

counts of animals hauled out and in the 

water within, at least, the Level B 

harassment zone. 

Data collected must include: 

• Numbers of each species 

• Location, including whether inside 

the Level B harassment zone; whether 

hauled out or in the water; and 

distance from construction activities 

(+/¥10 m) 

• Time 

• Tidal conditions 

• Time construction activities start and 

end 

• Primary construction activities 

occurring during the past hour 

• Any noise or visual disturbance 

• Number of mom/pup pairs and 

neonates observed 

• Notable behaviors, including foraging, 

grooming, resting, aggression, mating 

activity, and others 

Notes should include any of the 

following information to the extent it is 

feasible to record: 

• Age-class 

• Sex 

• Unusual activity or signs of stress 

• Any other information worth noting 

Construction Related Reactions— 

Record reaction observed in relation to 

construction activities including: 

• Tally of each reaction 

• Time of reaction 

• Concurrent construction activity 

• The assumed cause (whether related 

to construction activities or not) shall 

be noted 

• Disturbance must be recorded 

according to NMFS’ three-point 

pinniped disturbance scale (see Table 

3) 

• Location of animal during initial 

reaction and distance from the noted 

disturbance 

• Activity before and after disturbance 

• Status (in water or hauled out) before 

and after disturbance 

TABLE 3—PINNIPED BEHAVIORAL DISTURBANCE CODE REACTIONS

Level Type of 

response Definition 

1 ...................... Alert ............... Seal head orientation or brief movement in response to disturbance, which may include turning head towards 

the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from 

a lying to a sitting position, or brief movement of less than twice the animal’s body length. 

2 ...................... Movement ...... Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal’s body length to longer retreats over the beach, or if already moving a change of direction of greater 

than 90 degrees. 

3 ...................... Flush .............. All retreats (flushes) to the water. 

Reporting 

A draft marine mammal monitoring 

report would be submitted to NMFS 

within 90 days after the completion of 

pile driving and removal activities, or 

60 days prior to a requested date of 

issuance of any future IHAs for projects 

at the same location, whichever comes 

first. The report must include full 

documentation of methods, results, and 

interpretation pertaining to all 

monitoring. It shall also include marine 

mammal observations pre-activity, 

during-activity, and post-activity of 

construction, and shall also provide 

descriptions of any behavioral responses 

by marine mammals due to disturbance 

from construction activities and a 

complete description of total take 

estimate based on the number of marine 


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30418 Federal Register / Vol. 86, No. 108 / Tuesday, June 8, 2021 / Notices 

mammals observed during the course of 

construction. The report must include 

an extrapolation of the estimated takes 

by Level B harassment based on the 

number of observed disturbances within 

the Level B harassment zone and the 

percentage of time the Level B 

harassment zone was not monitored; 

i.e., 50 percent of time for the two 

restoration areas and 80 percent of the 

time for the borrow and other areas. If 

comments are received from the NMFS 

Office of Protected Resources on the 

draft report, a final report shall be 

submitted to NMFS within 30 days 

thereafter following resolution of 

comments on the draft report from 

NMFS. If no comments are received 

from NMFS, the draft report will be 

considered to be the final report. This 

report must contain the informational 

elements described above. 

Comments and Responses 

As noted previously, NMFS published 

a notice of a proposed IHA (84 FR 

72308; December 31, 2019) and solicited 

public comments on both our proposal 

to issue the initial IHA for CDFW’s 

activity and on the potential for a 

Renewal IHA, should certain 

requirements be met. All public 

comments were addressed in the notice 

announcing the issuance of the initial 

IHA (85 FR 14640; March 13, 2020). 

Below, we describe how we have 

addressed, with updated information 

where appropriate, any comments 

received that specifically pertain to the 

Renewal of the 2020 IHA. 

Comment: The Commission reiterated 

programmatic recommendations 

regarding NMFS’ potential use of the 

renewal mechanism for 1 year IHAs; 

that NMFS refrain from issuing 

renewals for any authorization and 

instead use its abbreviated Federal 

Register notice process. 

Response: In prior responses to 

comments about IHA Renewals (e.g., 84 

FR 52464; October 02, 2019 and 85 FR 

53342, August 28, 2020), NMFS has 

explained how the Renewal process, as 

implemented, is consistent with the 

statutory requirements contained in 

section 101(a)(5)(D) of the MMPA, 

provides additional efficiencies beyond 

the use of abbreviated notices, and, 

further, promotes NMFS’ goals of 

improving conservation of marine 

mammals and increasing efficiency in 

the MMPA compliance process. 

Therefore, we intend to continue 

implementing the Renewal process. 

Preliminary Determinations 

NMFS has preliminarily concluded 

that there is no new information 

suggesting that our analysis or findings 

should change from those reached for 

the initial IHA. Based on the 

information and analysis contained here 

and in the referenced documents, NMFS 

has determined the following: (1) The 

required mitigation measures will effect 

the least practicable impact on marine 

mammal species or stocks and their 

habitat; (2) the authorized takes will 

have a negligible impact on the affected 

marine mammal species or stocks; (3) 

the authorized takes represent small 

numbers of marine mammals relative to 

the affected stock abundances; (4) 

CDFW 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 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (ESA: 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 

IHAs, NMFS consults internally 

whenever we propose to authorize take 

for endangered or threatened species. 

No incidental take of ESA-listed 

species is proposed for authorization or 

expected to result from this activity in 

the Elkhorn Slough Reserve. Therefore, 

NMFS has determined that formal 

consultation under section 7 of the ESA 

is not required for this action. 

Proposed Renewal IHA and Request for 

Public Comment 

As a result of these preliminary 

determinations, NMFS proposes to issue 

a Renewal IHA to CDFW for conducting 

Phase II of the Elkhorn Slough Tidal 

Marsh Restoration Project in Elkhorn 

Slough located in Monterey County, 

California, provided the previously 

described mitigation, monitoring, and 

reporting requirements are incorporated. 

A draft of the proposed and final initial 

IHA can be found at https://

www.fisheries.noaa.gov/permit/ 

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

request comment on our analyses, the 

proposed Renewal IHA, and any other 

aspect of this notice. Please include 

with your comments any supporting 

data or literature citations to help 

inform our final decision on the request 

for MMPA authorization. 

Dated: June 2, 2021. 

Catherine Marzin, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–11915 Filed 6–7–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB146] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Portsmouth 

Naval Shipyard Dry Dock 1 

Modification and Expansion 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of incidental 

harassment authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that NMFS has issued an IHA to the 

U.S. Navy (Navy) to incidentally harass, 

by Level B and Level A harassment, 

marine mammals incidental to 

Portsmouth Naval Shipyard (PNSY) Dry 

Dock 1 (DD1) modification and 

expansion in Kittery, Maine. 

DATES: This authorization is effective 

from June 2, 2021 through June 1, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Carter Esch, Office of Protected 

Resources, NMFS, (301) 427–8421. 

Electronic copies of the application and 

supporting documents, as well as a list 

of the references cited in this document, 

may be obtained online at: https://

www.fisheries.noaa.gov/permit/ 

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

of problems accessing these documents, 

please call the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

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

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

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 


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