[Federal Register Volume 81, Number 153 (Tuesday, August 9, 2016)]
[Notices]
[Pages 52637-52645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18846]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE271


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Bravo Wharf Recapitalization 
Project

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
U.S. Navy (Navy) to incidentally harass marine mammals during 
construction activities associated with the bravo wharf 
recapitalization project at Naval Station Mayport, FL.

DATES: This authorization is effective from December 1, 2016, through 
November 30, 2017.

FOR FURTHER INFORMATION CONTACT:  Laura McCue, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Availability

    An electronic copy of the Navy's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. A memorandum describing our 
adoption of the Navy's Environmental Assessment (2016) and our 
associated Finding of No Significant Impact, prepared pursuant to the 
National Environmental Policy Act, are also available at the same site. 
In case of problems accessing these documents, please call the contact 
listed above (see FOR FURTHER INFORMATION CONTACT).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified area, the incidental, but not intentional, 
taking of small numbers of marine mammals, providing that certain 
findings are made and the necessary prescriptions are established.
    The incidental taking of small numbers of marine mammals may be 
allowed only if NMFS (through authority delegated by the Secretary) 
finds that the total taking by the specified activity during the 
specified time period will (i) have a negligible impact on the species 
or stock(s) and (ii) not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant). Further, the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such taking 
must be set forth, either in specific regulations or in an 
authorization.
    The allowance of such incidental taking under section 101(a)(5)(A), 
by harassment, serious injury, death, or a combination thereof, 
requires that regulations be established. Subsequently, a Letter of 
Authorization may be issued pursuant to the prescriptions established 
in such regulations, providing that the level of taking will be 
consistent with the findings made for the total taking allowable under 
the specific regulations. Under section 101(a)(5)(D), NMFS may 
authorize such incidental taking by harassment only, for periods of not 
more than one year, pursuant to requirements and conditions contained 
within an IHA. The establishment of prescriptions through either 
specific regulations or an authorization requires notice and 
opportunity for public comment.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' Except with respect to certain activities 
not pertinent here, section 3(18) of the MMPA defines ``harassment'' 
as: ``. . . any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the wild 
[Level A harassment]; or (ii) has the potential to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering [Level B 
harassment].''

Summary of Request

    On July 21, 2015, we received a request from the Navy for 
authorization of the taking, by Level B harassment only, of marine 
mammals, incidental to pile driving in association with the Bravo Wharf 
recapitalization project at Naval Station Mayport (NSM), Florida.

[[Page 52638]]

That request was modified on November 4 and November 10, and a final 
version, which we deemed adequate and complete, was submitted on 
November 17. In-water work associated with the project is expected to 
be completed within the one-year timeframe of the IHA (December 1, 2016 
through November 30, 2017).
    The use of both vibratory and impact pile driving is expected to 
produce underwater sound at levels that have the potential to result in 
behavioral harassment of marine mammals. One species of marine mammal 
has the potential to be affected by the specified activities: 
Bottlenose dolphin (Tursiops truncatus truncatus). This species may 
occur year-round in the action area.
    Similar wharf construction and pile driving activities in Naval 
Station Mayport have been authorized by NMFS in the past for a 
different construction project at Wharf C. The first authorization was 
effective between September 1, 2014 through August 31, 2015 (79 FR 
27863; May 5, 2014), and the second authorization, which is currently 
ongoing, is effective from September 8, 2015 through September 7, 2016 
(80 FR 55598; September 16, 2015).

Description of the Specified Activity

Overview

    Bravo Wharf is a medium draft, general purpose berthing wharf that 
was constructed in 1970 and lies at the western edge of the NSM turning 
basin. Bravo Wharf is approximately 2,000 ft long, 125 ft wide, and has 
a berthing depth of 50 ft mean lower low water. The wharf is one of two 
primary deep draft berths at the basin and is capable of berthing ships 
up to and including large amphibious ships; it is one of three primary 
ordnance handling berths at the basin. The wharf is a diaphragm steel 
sheet pile cell structure with a concrete apron, partial concrete 
encasement of the piling and asphalt paved deck. The wharf is currently 
in poor condition due to advanced deterioration of the steel sheeting 
and lack of corrosion protection. This structural deterioration has 
resulted in the institution of load restrictions within 60 ft of the 
wharf face. The purpose of this project is to complete necessary 
repairs to Bravo Wharf. Please refer to the Navy's application for a 
schematic of the project plan.

Dates and Duration

    The total project is expected to require a maximum of 130 days of 
in-water pile driving. The project may require up to 24 months for 
completion; in-water activities are limited to a maximum of 130 days, 
separated into two phases. If in-water work will extend beyond the 
effective dates of the IHA, a second IHA application will be submitted 
by the Navy. There will be a maximum of 110 days for vibratory pile 
driving (73 days in phase I and 37 days in phase II), and a contingent 
20 days of impact pile driving. The specified activities are expected 
to occur between December 1, 2016 and November 30, 2017.

Specific Geographic Region

    NSM is located in northeastern Florida, at the mouth of the St. 
Johns River and adjacent to the Atlantic Ocean (see Figures 2-1 and 2-2 
of the Navy's application). The St. Johns River is the longest river in 
Florida, with the final 35 mi flowing through the city of Jacksonville. 
This portion of the river is significant for commercial shipping and 
military use. At the mouth of the river, near the action area, the 
Atlantic Ocean is the dominant influence and typical salinities are 
above 30 ppm. Outside the river mouth, in nearshore waters, moderate 
oceanic currents tend to flow southward parallel to the coast. Sea 
surface temperatures range from around 16 [deg]C in winter to 28 [deg]C 
in summer.
    The specific action area consists of the NSM turning basin, an area 
of approximately 2,000 by 3,000 ft containing ship berthing facilities 
at 16 locations along wharves around the basin perimeter. The basin was 
constructed during the early 1940s by dredging the eastern part of 
Ribault Bay (at the mouth of the St. Johns River), with dredge material 
from the basin used to fill parts of the bay and other low-lying areas 
in order to elevate the land surface. The basin is currently maintained 
through regular dredging at a depth of 50 ft, with depths at the berths 
ranging from 30-50 ft. The turning basin, connected to the St. Johns 
River by a 500-ft-wide entrance channel, will largely contain sound 
produced by project activities, with the exception of sound propagating 
east into nearshore Atlantic waters through the entrance channel (see 
Figure 2-2 of the Navy's application). Bravo Wharf is located in the 
western corner of the Mayport turning basin.

Detailed Description of Activities

    In order to rehabilitate Bravo Wharf, the Navy proposes to install 
a new steel sheet pile bulkhead at Bravo Wharf. The project consists of 
installing a total of approximately 880 single sheet piles (Phase I--
berths B-2 and B-3: 590; Phase II--berth B-1: 290). The wall will be 
anchored at the top and fill consisting of clean gravel and flowable 
concrete fill will be placed behind the wall. A concrete cap will be 
formed along the top and outside face of the wall to tie the entire 
structure together and provide a berthing surface for vessels. The new 
bulkhead will be designed for a fifty-year service life.
    All piles will be driven by vibratory hammer, although impact pile 
driving may be used as a contingency in cases when vibratory driving is 
not sufficient to reach the necessary depth. In the unlikely event that 
impact driving is required, either impact or vibratory driving could 
occur on a given day, but concurrent use of vibratory and impact 
drivers will not occur. The Navy estimates that a total of 130 in-water 
work days may be required to complete pile driving activity, which 
includes 20 days for contingency impact driving, if necessary.

Comments and Responses

    We published a notice of receipt of the Navy's application and 
proposed IHA in the Federal Register on December 7, 2015 (80 FR 75978). 
We received one comment, a letter from the Marine Mammal Commission 
concurring with NMFS's preliminary findings.
    Comment: The Commission recommends the issuance of the IHA, subject 
to the inclusion of the proposed mitigation, monitoring, and reporting 
measures.
    Response: We value the Commission's input and support and 
appreciate their concurrence with our findings. We look forward to 
working with them on similar issues in the future.

Description of Marine Mammals in the Area of the Specified Activity

    There are four marine mammal species which may inhabit or transit 
through the waters nearby NSM at the mouth of the St. Johns River and 
in nearby nearshore Atlantic waters. These include the bottlenose 
dolphin, Atlantic spotted dolphin (Stenella frontalis), North Atlantic 
right whale (Eubalaena glacialis), and humpback whale (Megaptera 
novaeangliae). Multiple additional cetacean species occur in South 
Atlantic waters but would not be expected to occur in shallow nearshore 
waters of the action area. Table 1 lists the marine mammal species with 
expected potential for occurrence in the vicinity of NSM during the 
project timeframe and summarizes key information regarding stock status 
and abundance. Taxonomically, we follow Committee on Taxonomy (2014). 
Please see NMFS' Stock Assessment Reports (SAR), available at 
www.nmfs.noaa.gov/

[[Page 52639]]

pr/sars, for more detailed accounts of these stocks' status and 
abundance. Please also refer to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts and to the Navy's 
Marine Resource Assessment for the Charleston/Jacksonville Operating 
Area, which documents and describes the marine resources that occur in 
Navy operating areas of the Southeast (DoN, 2008). The document is 
publicly available at www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html 
(accessed November 2, 2015). We provided additional information for 
marine mammals with potential for occurrence in the area of the 
specified activity in our Federal Register notice of proposed 
authorization (December 7, 2015; 80 FR 75978). For reasons discussed in 
detail in the notice of proposed authorization, right whales, humpback 
whales, and spotted dolphins are unlikely to occur in the project area 
and are not considered further.

                                           Table 1--Marine Mammals Potentially Present in the Vicinity of NSM
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                                                                                     Stock abundance  (CV,
              Species                         Stock            ESA/MMPA  status;       Nmin, most recent     PBR \3\   Annual  M/  Relative occurrence;
                                                              strategic  (Y/N) \1\   abundance survey) \2\               SI \4\    season of occurrence
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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                                                                    Family Balaenidae
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North Atlantic right whale.........  Western North Atlantic  E/D; Y                 476 (0; 476; 2013)....          1        4.3  Rare inshore, regular
                                      \5\.                                                                                         near/offshore; Nov-
                                                                                                                                   Apr.
Humpback whale.....................  Gulf of Maine.........  E/D; Y                 823 (0; 823; 2008)....        2.7        7.6  Rare; Fall-Spring.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atlantic spotted dolphin...........  Western North Atlantic  -; N                   44,715 (0.43; 31,610;         316          0  Rare; year-round.
                                                                                     2011).
Common bottlenose dolphin..........  Western North Atlantic  -; N                   77,532 (0.4; 56,053;          561       43.9  Rare; year-round.
                                      Offshore.                                      2011).
                                     Western North Atlantic  -/D; Y                 9,173 (0.46; 6,326;            63       0-12  Possibly common; \8\
                                      Coastal, Southern                              2010-11).                                     Jan-Mar.
                                      Migratory.
                                     Western North Atlantic  -/D; Y                 1,219 (0.67; 730; 2010-         7        0.4  Possibly common; \8\
                                      Coastal, Northern                              11).                                          year-round.
                                      Florida.
                                     Jacksonville Estuarine  -; Y                   412 \7\ (0.06; unk;         undet        1.2  Possibly common; \8\
                                      System.\6\                                     1994-97).                                     year-round.
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\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see
  footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance
  estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is
  presented; there may be more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size.
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
  values presented here are from the draft 2015 SARs (www.nmfs.noaa.gov/pr/sars/draft.htm).
\5\ Abundance estimates (and resulting PBR values) for these stocks are new values presented in the draft 2015 SARs. This information was made available
  for public comment and is currently under review and therefore may be revised prior to finalizing the 2015 SARs. However, we consider this information
  to be the best available for use in this document.
\6\ Abundance estimates for these stocks are greater than eight years old and are therefore not considered current. PBR is considered undetermined for
  these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates
  and PBR values, as these represent the best available information for use in this document.
\7\ This abundance estimate is considered an overestimate because it includes non- and seasonally-resident animals.
\8\ Bottlenose dolphins in general are common in the project area, but it is not possible to readily identify them to stock. Therefore, these three
  stocks are listed as possibly common as we have no information about which stock commonly only occurs.

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    Our Federal Register notice of proposed authorization (December 7, 
2015; 80 FR 75978) provides a general background on sound relevant to 
the specified activity as well as a detailed description of marine 
mammal hearing and of the potential effects of these construction 
activities on marine mammals and their habitat.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses.
    Measurements from similar pile driving events were coupled with 
practical spreading loss to estimate

[[Page 52640]]

zones of influence (ZOI; see Estimated Take by Incidental Harassment); 
these values were used to develop mitigation measures for pile driving 
activities at NSM. The ZOIs effectively represent the mitigation zone 
that will be established around each pile to prevent Level A harassment 
to marine mammals, while providing estimates of the areas within which 
Level B harassment might occur. In addition to the specific measures 
described later in this section, the Navy will conduct briefings 
between construction supervisors and crews, marine mammal monitoring 
team, and Navy staff prior to the start of all pile driving activity, 
and when new personnel join the work, in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures.

Monitoring and Shutdown for Pile Driving

    The following measures will apply to the Navy's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--For all pile driving activities, the Navy will 
establish a shutdown zone intended to contain the area in which sound 
pressure levels (SPLs) equal or exceed the 180 dB rms acoustic injury 
criteria. The purpose of a shutdown zone is to define an area within 
which shutdown of activity will occur upon sighting of a marine mammal 
(or in anticipation of an animal entering the defined area), thus 
preventing injury of marine mammals (as described in our notice of 
proposed authorization, serious injury or death are unlikely outcomes 
even in the absence of mitigation measures). Modeled radial distances 
for shutdown zones are shown in Table 2. However, a minimum shutdown 
zone of 15 m (which is larger than the maximum predicted injury zone) 
will be established during all pile driving activities, regardless of 
the estimated zone. Vibratory pile driving activities are not predicted 
to produce sound exceeding the 180-dB Level A harassment threshold, but 
these precautionary measures are intended to prevent the already 
unlikely possibility of physical interaction with construction 
equipment and to further reduce any possibility of acoustic injury. For 
impact driving of steel piles, if necessary, the radial distance of the 
shutdown will be established at 40 m.
    Disturbance Zone--Disturbance zones are the areas in which SPLs 
equal or exceed 160 and 120 dB rms (for impulse and continuous sound, 
respectively). Disturbance zones provide utility for monitoring 
conducted for mitigation purposes (i.e., shutdown zone monitoring) by 
establishing monitoring protocols for areas adjacent to the shutdown 
zones. Monitoring of disturbance zones enables observers to be aware of 
and communicate the presence of marine mammals in the project area but 
outside the shutdown zone and thus prepare for potential shutdowns of 
activity. However, the primary purpose of disturbance zone monitoring 
is for documenting incidents of Level B harassment; disturbance zone 
monitoring is discussed in greater detail later (see Proposed 
Monitoring and Reporting). Nominal radial distances for disturbance 
zones are shown in Table 2. Given the size of the disturbance zone for 
vibratory pile driving, it is impossible to guarantee that all animals 
would be observed or to make comprehensive observations of fine-scale 
behavioral reactions to sound, and only a portion of the zone (e.g., 
what may be reasonably observed by visual observers stationed within 
the turning basin) will be observed.
    In order to document observed incidents of harassment, monitors 
record all marine mammal observations, regardless of location. The 
observer's location, as well as the location of the pile being driven, 
is known from a GPS. The location of the animal is estimated as a 
distance from the observer, which is then compared to the location from 
the pile. It may then be estimated whether the animal was exposed to 
sound levels constituting incidental harassment on the basis of 
predicted distances to relevant thresholds in post-processing of 
observational and acoustic data, and a precise accounting of observed 
incidences of harassment created. This information may then be used to 
extrapolate observed takes to reach an approximate understanding of 
actual total takes.
    Monitoring Protocols--Monitoring will be conducted before, during, 
and after pile driving activities. In addition, observers shall record 
all incidents of marine mammal occurrence, regardless of distance from 
activity, and shall document any behavioral reactions in concert with 
distance from piles being driven. Observations made outside the 
shutdown zone will not result in shutdown; that pile segment will be 
completed without cessation, unless the animal approaches or enters the 
shutdown zone, at which point all pile driving activities will be 
halted. Monitoring will take place from 15 minutes prior to initiation 
through 30 minutes post-completion of pile driving activities. Pile 
driving activities include the time to install or remove a single pile 
or series of piles, as long as the time elapsed between uses of the 
pile driving equipment is no more than 30 minutes. Please see the 
Monitoring Plan (www.nmfs.noaa.gov/pr/permits/incidental/construction.htm), developed by the Navy in agreement with NMFS, for 
full details of the monitoring protocols.
    The following additional measures apply to visual monitoring:
    (1) Monitoring will be conducted by qualified observers, who will 
be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement shutdown/delay procedures when applicable 
by calling for the shutdown to the hammer operator. Qualified observers 
are typically trained biologists, with the following minimum 
qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     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 in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     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.
    (2) Prior to the start of pile driving activity, the shutdown zone 
will be monitored for 15 minutes to ensure that it is clear of marine 
mammals. Pile driving will only commence once observers have declared 
the shutdown zone clear of marine mammals; animals will be allowed to 
remain in the shutdown zone (i.e., must leave of their own volition) 
and their behavior will be monitored and documented. The shutdown zone 
may only be declared clear, and pile driving started, when the

[[Page 52641]]

entire shutdown zone is visible (i.e., when not obscured by dark, rain, 
fog, etc.). In addition, if such conditions should arise during impact 
pile driving that is already underway, the activity will be halted.
    (3) If a marine mammal approaches or enters the shutdown zone 
during the course of pile driving operations, activity will be halted 
and delayed until either the animal has voluntarily left and been 
visually confirmed beyond the shutdown zone or 15 minutes have passed 
without re-detection of the animal. Monitoring will be conducted 
throughout the time required to drive a pile.

Soft Start

    The use of a soft start procedure is believed to provide additional 
protection to marine mammals by warning or providing a chance to leave 
the area prior to the hammer operating at full capacity, and typically 
involves a requirement to initiate sound from the hammer at reduced 
energy followed by a waiting period. This procedure is repeated two 
additional times. It is difficult to specify the reduction in energy 
for any given hammer because of variation across drivers and, for 
impact hammers, the actual number of strikes at reduced energy will 
vary because operating the hammer at less than full power results in 
``bouncing'' of the hammer as it strikes the pile, resulting in 
multiple ``strikes.'' For impact driving, we require an initial set of 
three strikes from the impact hammer at reduced energy, followed by a 
thirty-second waiting period, then two subsequent three strike sets. 
Soft start will be required at the beginning of each day's impact pile 
driving work and at any time following a cessation of impact pile 
driving of 30 minutes or longer.
    We have carefully evaluated the Navy's proposed mitigation measures 
and considered their effectiveness in past implementation to determine 
whether they are likely to effect the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another: (1) The manner in which, 
and the degree to which, the successful implementation of the measure 
is expected to minimize adverse impacts to marine mammals, (2) the 
proven or likely efficacy of the specific measure to minimize adverse 
impacts as planned; and (3) the practicability of the measure for 
applicant implementation.
    Any mitigation measure(s) we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time.
    (6) For monitoring directly related to mitigation, an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the Navy's proposed measures, as well as 
any other potential measures that may be relevant to the specified 
activity, we have determined that the proposed mitigation measures 
provide the means of effecting the least practicable impact on marine 
mammal species or stocks and their habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (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 responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) Population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    The Navy's planned monitoring and reporting is also described in 
their Marine Mammal Monitoring Plan, on the Internet at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Visual Marine Mammal Observations

    The Navy will collect sighting data and behavioral responses to 
construction for marine mammal species observed in the region of 
activity during the period of activity. All observers (MMOs) will be 
trained in marine mammal identification and behaviors and are required 
to have no other construction-related tasks while conducting 
monitoring. The Navy will monitor the shutdown zone and disturbance 
zone before, during, and after pile driving, with observers located at 
the best practicable vantage points. Based on our requirements, the 
Navy will implement the following procedures for pile driving:
     MMOs will be located at the best vantage point(s) in order 
to properly see the entire shutdown zone and as much of the disturbance 
zone as possible.
     During all observation periods, observers will use 
binoculars and the naked eye to search continuously for marine mammals.

[[Page 52642]]

     If the shutdown zones are obscured by fog or poor lighting 
conditions, pile driving at that location will not be initiated until 
that zone is visible. Should such conditions arise while impact driving 
is underway, the activity will be halted.
     The shutdown and disturbance zones around the pile will be 
monitored for the presence of marine mammals before, during, and after 
any pile driving or removal activity.
    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. The monitoring biologists 
will use their best professional judgment throughout implementation and 
seek improvements to these methods when deemed appropriate. Any 
modifications to protocol will be coordinated between NMFS and the 
Navy.

Data Collection

    We require that observers use approved data forms. Among other 
pieces of information, the Navy will record detailed information about 
any implementation of shutdowns, including the distance of animals to 
the pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, the Navy will attempt to 
distinguish between the number of individual animals taken and the 
number of incidences of take. We require that, at a minimum, the 
following information be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel, and if possible, 
the correlation to SPLs;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Description of implementation of mitigation measures 
(e.g., shutdown or delay);
     Locations of all marine mammal observations; and
     Other human activity in the area.

Reporting

    A draft report will be submitted to NMFS within 90 days of the 
completion of marine mammal monitoring, or 60 days prior to the 
requested date of issuance of any future IHA for projects at the same 
location, whichever comes first. The report will include marine mammal 
observations pre-activity, during-activity, and post-activity during 
pile driving days, and will also provide descriptions of any behavioral 
responses to construction activities by marine mammals and a complete 
description of all mitigation shutdowns and the results of those 
actions and an extrapolated total take estimate based on the number of 
marine mammals observed during the course of construction. A final 
report must be submitted within 30 days following resolution of 
comments on the draft report.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as: ``. . . any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild [Level A harassment]; 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering [Level B harassment].''
    All anticipated takes would be by Level B harassment resulting from 
vibratory and impact pile driving and involving temporary changes in 
behavior. The planned mitigation and monitoring measures are expected 
to minimize the possibility of injurious or lethal takes such that take 
by Level A harassment, serious injury, or mortality is considered 
discountable. However, it is unlikely that injurious or lethal takes 
would occur even in the absence of the planned mitigation and 
monitoring measures.
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on animals or on the stock or species could potentially 
be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given 
the many uncertainties in predicting the quantity and types of impacts 
of sound on marine mammals, it is common practice to estimate how many 
animals are likely to be present within a particular distance of a 
given activity, or exposed to a particular level of sound. In practice, 
depending on the amount of information available to characterize daily 
and seasonal movement and distribution of affected marine mammals, it 
can be difficult to distinguish between the number of individuals 
harassed and the instances of harassment and, when duration of the 
activity is considered, it can result in a take estimate that 
overestimates the number of individuals harassed. In particular, for 
stationary activities, it is more likely that some smaller number of 
individuals may accrue a number of incidences of harassment per 
individual than for each incidence to accrue to a new individual, 
especially if those individuals display some degree of residency or 
site fidelity and the impetus to use the site (e.g., because of 
foraging opportunities) is stronger than the deterrence presented by 
the harassing activity.
    The turning basin is not considered important habitat for marine 
mammals, as it is a man-made, semi-enclosed basin with frequent 
industrial activity and regular maintenance dredging. The surrounding 
waters may be an important foraging habitat for the dolphins; however 
the small area of ensonification does not extend outside of the turning 
basin and into this foraging habitat (see Figure 6-1 in the Navy's 
application). Therefore, behavioral disturbances that could result from 
anthropogenic sound associated with these activities are expected to 
affect only a relatively small number of individual marine mammals that 
may venture near the turning basin, although those effects could be 
recurring over the life of the project if the same individuals remain 
in the project vicinity. The Navy has requested authorization for the 
incidental taking of small numbers of bottlenose dolphins in the 
Mayport turning basin that may result from pile driving during 
construction activities associated with the project described 
previously in this document.
    In order to estimate the potential incidents of take that may occur 
incidental to the specified activity, we must first estimate the extent 
of the sound field that may be produced by the activity and then 
consider in combination with information about marine mammal density or 
abundance in the project area. We described applicable sound thresholds 
for determining effects to marine mammals before describing the 
information used in estimating the sound fields, the

[[Page 52643]]

available marine mammal density or abundance information, and the 
method of estimating potential incidents of take in detail in our 
Federal Register notice of proposed authorization (August 5, 2015; 80 
FR 46545). All calculated distances to and the total area encompassed 
by the marine mammal sound thresholds are provided in Table 2.

             Table 2--Distances to Relevant Underwater Sound Thresholds and Areas of Ensonification
----------------------------------------------------------------------------------------------------------------
                                                                                   Distance (m)
             Pile type                      Method               Threshold              \1\        Area (km\2\)
----------------------------------------------------------------------------------------------------------------
Steel sheet piles.................  Vibratory............  Level A harassment                  0               0
                                                            (180 dB).
                                                           Level B harassment              1,166        0.614439
                                                            (120 dB)
                                    Impact...............  Level A harassment                 40           0.002
                                                            (180 dB).
                                                           Level B harassment                858            0.51
                                                            (160 dB)
----------------------------------------------------------------------------------------------------------------
\1\ Areas presented take into account attenuation and/or shadowing by land. Calculated distances to relevant
  thresholds cannot be reached in most directions form source piles. Please see Figures 6-1 and 6-2 in the
  Navy's application.

    The Mayport turning basin does not represent open water, or free 
field, conditions. Therefore, sounds would attenuate as per the 
confines of the basin, and may only reach the full estimated distances 
to the harassment thresholds via the narrow, east-facing entrance 
channel. Distances shown in Table 2 are estimated for free-field 
conditions, but areas are calculated per the actual conditions of the 
action area. See Figures 6-1 and 6-2 of the Navy's application for a 
depiction of areas in which each underwater sound threshold is 
predicted to occur at the project area due to pile driving.

Marine Mammal Densities

    For all species, the best scientific information available was 
considered for use in the marine mammal take assessment calculations. 
Density for bottlenose dolphins is derived from site-specific surveys 
conducted by the Navy (see Appendix C of the Navy's application for 
more information); it is not currently possible to identify observed 
individuals to stock.
    The following assumptions are made when estimating potential 
incidents of take:
     All marine mammal individuals potentially available are 
assumed to be present within the relevant area, and thus incidentally 
taken;
     An individual can only be taken once during a 24-h period; 
and,
     There will be 110 total days of vibratory driving (73 days 
in phase I and 37 days in phase II) and 20 days of impact pile driving.
     Exposures to sound levels at or above the relevant 
thresholds equate to take, as defined by the MMPA.
    The estimation of marine mammal takes typically uses the following 
calculation:

Exposure estimate = (n * ZOI) * days of total activity

Where:
n = density estimate used for each species/season
ZOI = sound threshold ZOI area; the area encompassed by all 
locations where the SPLs equal or exceed the threshold being 
evaluated
n * ZOI produces an estimate of the abundance of animals that could 
be present in the area for exposure, and is rounded to the nearest 
whole number before multiplying by days of total activity.

    The ZOI impact area is estimated using the relevant distances in 
Table 2, taking into consideration the possible affected area with 
attenuation due to the constraints of the basin. Because the basin 
restricts sound from propagating outward, with the exception of the 
east-facing entrance channel, the radial distances to thresholds are 
not generally reached.
    There are a number of reasons why estimates of potential incidents 
of take may be conservative, assuming that available density or 
abundance estimates and estimated ZOI areas are accurate. We assume, in 
the absence of information supporting a more refined conclusion, that 
the output of the calculation represents the number of individuals that 
may be taken by the specified activity. In fact, in the context of 
stationary activities such as pile driving and in areas where resident 
animals may be present, this number more realistically represents the 
number of incidents of take that may accrue to a smaller number of 
individuals. While pile driving can occur any day throughout the in-
water work window, and the analysis is conducted on a per day basis, 
only a fraction of that time (typically a matter of hours on any given 
day) is actually spent pile driving. The potential effectiveness of 
mitigation measures in reducing the number of takes is typically not 
quantified in the take estimation process. For these reasons, these 
take estimates may be conservative.
    The quantitative exercise described above indicates that no 
incidents of Level A harassment would be expected, independent of the 
implementation of required mitigation measures. See Table 3 for total 
estimated incidents of take.

                              Table 3--Calculations for Incidental Take Estimation
----------------------------------------------------------------------------------------------------------------
                                                                                                     Proposed
                Species                  n  (animals/           Activity            n * ZOI \1\     authorized
                                            km\2\)                                                   takes \2\
----------------------------------------------------------------------------------------------------------------
                                                Phase I (73 days)
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin \3\................         4.15366  Vibratory driving.......               3             219
----------------------------------------------------------------------------------------------------------------
                                               Phase II (37 days)
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin \3\................         4.15366  Vibratory driving.......               3             111
----------------------------------------------------------------------------------------------------------------

[[Page 52644]]

 
                                      Contingency impact driving (20 days)
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin \3\................         4.15366  Impact driving..........               2              40
----------------------------------------------------------------------------------------------------------------
    Total exposures...................  ..............  ........................  ..............             370
----------------------------------------------------------------------------------------------------------------
\1\ See Table 2 for relevant ZOIs. The product of this calculation is rounded to the nearest whole number.
\2\ The product of n * ZOI is multiplied by the total number of activity-specific days to estimate the number of
  takes.
\3\ It is impossible to estimate from available information which stock these takes may accrue to.

Analyses and Determinations

Negligible Impact Analysis

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes alone is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through behavioral 
harassment, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Pile driving activities associated with the wharf construction 
project, as outlined previously, have the potential to disturb or 
displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) only, from underwater sounds generated from pile driving. 
Potential takes could occur if individuals of these species are present 
in the ensonified zone when pile driving is happening.
    No injury, serious injury, or mortality is anticipated given the 
nature of the activities and measures designed to minimize the 
possibility of injury to marine mammals. The potential for these 
outcomes is minimized through the construction method and the 
implementation of the planned mitigation measures. Specifically, 
vibratory hammers will be the primary method of installation (impact 
driving is included only as a contingency and is not expected to be 
required), and this activity does not have the potential to cause 
injury to marine mammals due to the relatively low source levels 
produced (less than 180 dB) and the lack of potentially injurious 
source characteristics. Impact pile driving produces short, sharp 
pulses with higher peak levels and much sharper rise time to reach 
those peaks. If impact driving is necessary, implementation of soft 
start and shutdown zones significantly reduces any possibility of 
injury. Given sufficient ``notice'' through use of soft start (for 
impact driving), marine mammals are expected to move away from a sound 
source that is annoying prior to it becoming potentially injurious. 
Environmental conditions in the confined and protected Mayport turning 
basin mean that marine mammal detection ability by trained observers is 
high, enabling a high rate of success in implementation of shutdowns to 
avoid injury.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff, 
2006; HDR, Inc., 2012). Most likely, individuals will simply move away 
from the sound source and be temporarily displaced from the areas of 
pile driving, although even this reaction has been observed primarily 
only in association with impact pile driving. The pile driving 
activities analyzed here are similar to, or less impactful than, 
numerous other construction activities conducted in San Francisco Bay 
and in the Puget Sound region, which have taken place with no reported 
injuries or mortality to marine mammals, and no known long-term adverse 
consequences from behavioral harassment. These activities are also 
nearly identical to the pile driving activities that took place at 
Wharf C-2 at NSM, which also reported zero injuries or mortality to 
marine mammals and no known long-term adverse consequences from 
behavioral harassment. Repeated exposures of individuals to levels of 
sound that may cause Level B harassment are unlikely to result in 
hearing impairment or to significantly disrupt foraging behavior. Thus, 
even repeated Level B harassment of some small subset of the overall 
stock is unlikely to result in any significant realized decrease in 
viability for the affected individuals, and thus would not result in 
any adverse impact to the stock as a whole. Level B harassment will be 
reduced to the level of least practicable impact through use of 
mitigation measures described herein and, if sound produced by project 
activities is sufficiently disturbing, animals are likely to simply 
avoid the turning basin while the activity is occurring.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) the absence of any significant 
habitat within the project area, including known areas or features of 
special significance for foraging or reproduction; (4) the presumed 
efficacy of the planned mitigation measures in reducing the effects of 
the specified activity to the level of least practicable impact. In 
addition, these stocks are not listed under the ESA, although coastal 
bottlenose dolphins are designated as depleted under the MMPA. In 
combination, we believe that these factors, as well as the available 
body of evidence from other similar activities, demonstrate that the 
potential effects of the specified activity will have only short-term 
effects on individuals. The specified activity is not expected to 
impact rates of recruitment or survival and will therefore not result 
in population-level impacts.
    Based on the analysis contained herein of the likely effects of the

[[Page 52645]]

specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the planned monitoring and 
mitigation measures, we find that the total marine mammal take from the 
Navy's wharf construction activities will have a negligible impact on 
the affected marine mammal species or stocks.

Small Numbers Analysis

    As described previously, of the 370 incidents of behavioral 
harassment predicted to occur for bottlenose dolphin, we have no 
information allowing us to parse those predicted incidents amongst the 
three stocks of bottlenose dolphin that may occur in the project area. 
Therefore, we assessed the total number of predicted incidents of take 
against the best abundance estimate for each stock, as though the total 
would occur for the stock in question. For one of the bottlenose 
dolphin stocks, the total predicted number of incidents of take 
authorized would be considered small--approximately four percent for 
the southern migratory stock--even if each estimated taking occurred to 
a new individual. This is an extremely unlikely scenario as, for 
bottlenose dolphins in estuarine and nearshore waters, there is likely 
to be some overlap in individuals present day-to-day.
    The total number of authorized takes for bottlenose dolphins, if 
assumed to accrue solely to new individuals of the Jacksonville 
Estuarine Stock (JES) or northern Florida coastal stocks, is higher 
relative to the total stock abundance, which is currently considered 
unknown for the JES stock and is 1,219 for the northern Florida coastal 
stock. However, these numbers represent the estimated incidents of 
take, not the number of individuals taken. That is, it is highly likely 
that a relatively small subset of these bottlenose dolphins will be 
harassed by project activities.
    JES bottlenose dolphins range from Cumberland Sound at the Georgia-
Florida border south to approximately Palm Coast, Florida, an area 
spanning over 120 linear km of coastline and including habitat 
consisting of complex inshore and estuarine waterways. JES dolphins, 
divided by Caldwell (2001) into Northern and Southern groups, show 
strong site fidelity and, although members of both groups have been 
observed outside their preferred areas, it is likely that the majority 
of JES dolphins would not occur within waters ensonified by project 
activities.
    In the western North Atlantic, the Northern Florida Coastal Stock 
is present in coastal Atlantic waters from the Georgia/Florida border 
south to 29.4[deg] N. (Waring et al., 2014), a span of more than 90 
miles. There is no obvious boundary defining the offshore extent of 
this stock. They occur in waters less than 20 m deep; however, they may 
also occur in lower densities over the continental shelf (waters 
between 20 m and 100 m depth) and overlap spatially with the offshore 
morphotype (Waring et al., 2014).
    In summary, JES dolphins are known to form two groups and exhibit 
strong site fidelity (i.e., individuals do not generally range 
throughout the recognized overall JES stock range); and neither stock 
is expected to occur at all in a significant portion of the larger ZOI, 
which is almost entirely confined within NSM. Given that the specified 
activity will be stationary within an enclosed basin not recognized as 
an area of any special significance that would serve to attract or 
aggregate dolphins, we therefore believe that the estimated numbers of 
takes, were they to occur, likely represent repeated exposures of a 
much smaller number of bottlenose dolphins and that these estimated 
incidents of take represent small numbers of bottlenose dolphins.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, we find that small numbers of marine mammals will be taken 
relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are expected to be 
affected by these activities. Therefore, we have determined that 
section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), the 
Navy prepared an Environmental Assessment (EA) to consider the direct, 
indirect and cumulative effects to the human environment resulting from 
the bravo wharf recapitalization project. NMFS made the Navy's EA 
available to the public for review and comment, in relation to its 
suitability for adoption by NMFS in order to assess the impacts to the 
human environment of issuance of an IHA to the Navy. Also in compliance 
with NEPA and the CEQ regulations, as well as NOAA Administrative Order 
216-6, NMFS has reviewed the Navy's EA, determined it to be sufficient, 
and adopted that EA and signed a Finding of No Significant Impact 
(FONSI) in July, 2016. The 2016 NEPA documents are available at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Authorization

    As a result of these determinations, we have issued an IHA to the 
Navy for conducting the described construction activities at the Bravo 
Wharf at NSM, Jacksonville, FL for one year of issuance, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: August 4, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-18846 Filed 8-8-16; 8:45 am]
 BILLING CODE 3510-22-P