[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Notices]
[Pages 85525-85537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28451]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE74


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Waterfront Improvement Projects

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 NMFS has issued an incidental harassment authorization (IHA) to 
the U.S. Department of the Navy (Navy) to incidentally harass, by Level 
A and Level B harassment, marine mammals during construction activities 
associated with a waterfront improvement project at the Portsmouth 
Naval Shipyard (Shipyard) in Kittery, Maine.

DATES: This authorization is effective from January 1, 2017 through 
December 31, 2017.

FOR FURTHER INFORMATION CONTACT: Rob Pauline, 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. 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.
    Under section 101(a)(5)(D), NMFS after providing notice and 
opportunity for public comment may authorize such incidental taking by 
harassment only, for periods of not more than one year, pursuant to the 
mitigation, monitoring, and reporting requirements contained within an 
IHA. 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 February 17, 2016, NMFS received an application from the Navy 
for the taking of marine mammals incidental to a waterfront improvement 
project. NMFS determined that the application was adequate and complete 
on April 1, 2016. The Navy is proposing to restore and modernize 
waterfront infrastructure associated with Dry Docks 1 and 3 at the 
Shipyard in Kittery, York County, Maine. The proposed action will 
include two waterfront improvement projects, structural repairs to 
Berths 11, 12, and 13, and replacement of the Dry Dock 3 caisson. The 
waterfront improvement projects will be constructed between October 
2016 and October 2022, with in-water work expected to begin no earlier 
than January 2017. The requested IHA will be effective from January 1, 
2017 through December 31, 2017. According to the project schedule work 
during the IHA period will only cover work occurring at Berth 11.
    Use of vibratory and impact pile driving for pile installation and 
removal as well as drilling is expected to produce underwater sound at 
levels that have the potential to result in limited injury and 
behavioral harassment of marine mammals. The term ``pile driving'' 
throughout this document includes vibratory driving, impact pile 
driving, vibratory pile extraction as well as pile drilling unless 
specified otherwise. Take, by Level B Harassment, may impact 
individuals of five species of marine mammals including harbor porpoise 
(Phocoena phocoena), gray seal (Halichoerus grypus), harbor seal (Phoca 
vitulina), hooded seal (Crystphora cristata) and harp seal (Pagophilus 
groenlandicus). As the next paragraph explains, we have determined, 
based on the best available information, that there may also be small 
numbers of take by Level A harassment of harbor porpoise, harbor seal, 
and gray seal.
    In August 2016, NMFS released its Technical Guidance for Assessing 
the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance). 
This new Guidance established new

[[Page 85526]]

thresholds for predicting auditory injury, which equates to Level A 
harassment under the MMPA. In the August 4, 2016, Federal Register 
Notice (81 FR 51694), NMFS explained the approach it would take during 
a transition period, wherein we balance the need to consider this new 
best available science with the fact that some applicants have already 
committed time and resources to the development of analyses based on 
our previous thresholds and have constraints that preclude the 
recalculation of take estimates, as well as consideration of where the 
action is in the agency's decision-making pipeline. In that Notice, we 
included a non-exhaustive list of factors that would inform the most 
appropriate approach for considering the new Guidance, including: the 
scope of effects; how far in the process the applicant has progressed; 
when the authorization is needed; the cost and complexity of the 
analysis; and the degree to which the Guidance is expected to affect 
our analysis.
    In this case, the Navy initially submitted a request for 
authorization on February 17, 2016, which NMFS found adequate and 
complete on April 1, 2016. The Navy requires issuance of the 
authorization in order to ensure that this critical national security 
infrastructure project is able to meet its necessary start date. The 
Guidance indicates that there is a greater likelihood of auditory 
injury for phocid pinnipeds (i.e., harbor seals, gray seals, hooded 
seals, and harp seals) and for high- frequency cetaceans (i.e., harbor 
porpoise) than was considered in our notice of proposed authorization 
(81 FR 52614; August 9, 2016) because the Level A harassment zones are 
larger for impact driving. To account for the larger Level A zone that 
exists for harbor porpoises and the seal species, we authorize the 
taking by Level A harassment of 10 harbor porpoises, 4 harbor seals and 
2 gray seals. Level A take for hooded and harp seals is not anticipated 
or authorized (since the likelihood of even Level B take for these 
species is small). We also increased the shutdown zones from 10 m to 75 
m during impact driving and from 10 meter (m) to 55 m during vibratory 
driving. With these changes, the required mitigation measures, and a 
robust monitoring and mitigation program NMFS believes impacts to the 
affected species or stocks will be minimized.
    In this analysis, we considered the potential for small numbers of 
harbor porpoises, harbor seals, and gray seals to incur auditory injury 
and found that it would not impact our determinations, including 
negligible impact determination. In summary, we have considered the new 
Guidance and believe that the likelihood of injury is adequately 
addressed in the analysis contained herein and appropriate mitigation 
measures are in place in the IHA.

Description of the Specified Activity

Overview

    The Navy is proposing to restore and modernize infrastructure 
associated with Dry Docks 1 and 3 at the Shipyard in Kittery, York 
County, Maine (See Figure 1-1 in the Application). The proposed action 
will include two waterfront improvement projects, structural repairs to 
Berths 11, 12, and 13 and replacement of the Dry Dock 3 caisson.
    The purpose of the proposed action is to modernize and maximize dry 
dock capabilities for performing current and future missions 
efficiently and with maximum flexibility. The need for the proposed 
action is to correct deficiencies associated with the pier structure at 
Berths 11, 12, and 13 and the Dry Dock 3 caisson and concrete seats to 
ensure that the Shipyard can continue to support its primary mission to 
service, maintain, and overhaul submarines. By supporting the 
Shipyard's mission, the proposed action will assist in meeting the 
larger need for the Navy to provide capabilities for training and 
equipping combat-capable naval forces ready to deploy worldwide. 
Proposed activities included as part of the waterfront improvement 
project with potential to affect marine mammals within the waterways 
adjacent to the Shipyard include vibratory and impact pile driving, 
vibratory extraction and pile drilling operations in the project area.

Dates and Duration

    In-water construction associated with the proposed action will 
occur in phases over a six-year construction period. In-water 
construction is scheduled to begin in January 2017 and be completed by 
October 2022. This IHA is for the first year of in-water construction 
from January 1, 2017 to December 31, 2017. No seasonal limitations will 
be imposed on the construction timeline. This IHA covers all in-water 
construction planned for Berth 11 structural repairs. The Navy intends 
to apply for sequential IHAs to cover each of the subsequent years of 
construction.
    Table 1 below summarizes the in-water construction activities 
scheduled to take place during the timeframe covered by this IHA. Note 
that the proposed Federal Register notice (81 FR 52614) contained an 
error in Table 1. That Federal Register notice stated that the 
contractor would drill rock sockets, which could take about one day per 
socket. King piles would be regularly spaced along the berths and 
grouted into sockets drilled into the bedrock. The footnote in Table 1 
indicated that ten king piles would be installed per day. However, only 
one socket and one king pile will actually be installed per day. Thus, 
the number of days of activities for the sockets to be drilled for the 
94 king piles will be 94 days. Therefore, the total number of days of 
activity will increase from 72 to 156 and include the installation of 
327 piles and removal of 141 piles. Note that impact driving, vibratory 
driving and drilling may occur on the same day. As such, 156 total days 
of pile-related activity can be considered a conservative projection. 
Table 1 below contains updated information.

                                   Table 1--Revised Activity Summary for Year 1 of the Waterfront Improvement Projects
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                                                                                                                             Number of       Number of
         Activity/Method                                  Timing                         Number of        Pile type            piles           piles
                                                                                           days                              installed       extracted
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                                                        Berth 11 (A, B, and C) Structural Repairs
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Extract timber piles/vibratory     January 2017 to December 2017......................      \1\ 10  15-inch timber pile.  ..............              77
 hammer.
Install temporary sister piles     January 2017 to December 2017......................      \2\ 16  14-inch steel H-type              64  ..............
 for trestle system/vibratory
 hammer.
Install permanent king piles for   January 2017 to December 2017......................          94  36-inch steel H-type              94  ..............
 bulkhead/auger drilling.                                                                            piles.

[[Page 85527]]

 
Install steel sheet-pile bulkhead/ January 2017 to December 2017......................           6  24-inch steel sheet-             112  ..............
 vibratory hammer (sheet piles                                                                       piles.
 and sheet pile returns).
Install permanent sister piles/    January 2017 to December 2017......................      \2\ 13  14-inch steel H-type              50  ..............
 impact hammer.
Install timber dolphin/vibratory   January 2017 to January 2017.......................       \1\ 1  15-inch timber piles               7  ..............
 hammer.
Extract temporary sister piles     January 2017 to December 2017......................      \2\ 16  14-inch steel H-type  ..............              64
 for trestle system/vibratory
 hammer.
                                  ----------------------------------------------------------------------------------------------------------------------
    Totals.......................  ...................................................         156  ....................             327             141
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\1\ Estimate based on assumption of 30 minutes to drive each pile and 30-minute transition and set up time, resulting in one pile per hour and eight
  piles per day (ICF Jones and Strokes and Illingworth and Rodkin, Inc. 2012).
\2\ Estimate based on assumption of a one-hour transition and set up time, resulting in one pile per two hours and four piles per day (ICF Jones and
  Strokes and Illingworth and Rodkin, Inc. 2012).
King Piles--estimate of 1 socket drilled per day.
Sheet piles--estimate of 20 per day, based on 20 piles in 8 hours (i.e., one day) because they will be installed two at a time.

Specified Geographic Region

    The Shipyard is located along the Piscataqua River in Kittery, 
Maine (see Figure 1 in the application). The Shipyard occupies the 
whole of Seavey Island, encompassing 1.16 kilometers (km)\2\ (278 
acres) on what were originally five separate islands (Seavey, Pumpkin, 
Dennett's, Clarks, and Jamaica). Over the past 200 years, as a result 
of expansion from land-making activity, four of these islands (Seavey, 
Pumpkin, Dennett's, and Jamaica) were consolidated into one large 
island, which kept the name Seavey Island. Clarks Island is now 
attached to Seavey Island by a causeway. Seavey Island is located in 
the lower Piscataqua River approximately 500 m (547 yards (yd)) from 
its southwest bank, 200 m (219 yd) from its north bank, and 
approximately 4.02 km (2.5 miles (mi)) from the mouth of the river.

Detailed Description of Activities

    This IHA covers the Navy's planned in-water construction activities 
that will occur during the first year of construction, including 
completion of the king pile and concrete shutter panel bulkhead at 
Berth 11. Additional applications will be submitted for each subsequent 
year of in-water construction at Berths 11, 12, and 13 as well as for 
the replacement of the Dry Dock 3 caisson.

Pile Driving Operations

    Piles of differing sizes will be utilized during construction 
activities including: 25-inch steel sheet piles driven by vibratory 
hammer; 14-inch steel H-type piles driven using impact hammer; 15-inch 
timber piles installed via vibratory hammer to reconstruct dolphins at 
the corner; and 36-inch steel H-type piles. Additionally, 14-inch steel 
H-type piles will be used to align and construct the trestle that will 
be extracted using vibratory hammer and 15-inch timber fender piles 
will be extracted using a vibratory hammer (see Table 1). The number of 
piles that can be driven per day varies for different project elements 
and is subject to change based on site conditions at the time. All 
activities covered under the issued IHA will occur at Berth 11.
    At the beginning of the in-water work, existing timber piles will 
be removed from the berth faces and from the timber dolphin at the 
western end of the berth. The contractor will either construct a 
temporary construction trestle or place a jack-up barge alongside the 
berths to provide additional construction workspace. Pile driving and 
extraction will also be needed to construct and disassemble the 
temporary construction trestle if the construction contractor selects 
this method over use of a jack-up barge, which will require no pile 
driving. The trestle system has been included in this analysis in order 
to model a conservative, worst-case scenario. If a jack-up barge is 
used instead of a trestle system, less pile driving will be needed, 
resulting in fewer marine mammal takes than predicted in this 
application.
    For the proposed king pile and concrete shutter panel bulkhead (see 
Figures 2-1 and 2-2 in Application), the contractor will likely create 
templates and work in increments along the berth from the trestle or 
jack-up barge. For example, an approximately 50-foot-long template will 
allow installation of about 10 king piles and 20 sheet piles (along 
segments of the berths where sheet piles will be installed). The work 
will consist of setting a template (including temporary piles and 
horizontal members), which could take one or two days. Then the 
contractor will drill the rock sockets, which will take about one day 
per socket. One king pile per day will be driven and they will be 
regularly spaced along the berths and grouted into sockets.
    The concrete shutter panels will then be installed in stacks 
between the king piles along most of the length of Berth 11. 
Installation of the concrete piles is not included in the noise 
analysis because no pile driving will be required. Along an 
approximately 4.8 m (16 ft) section at the eastern end of Berth 11A and 
an additional 30.8 m (101 ft) between Berths 11A and 11B, the depth to 
bedrock is greater, thus allowing a conventional sheet-pile bulkhead to 
be constructed. The steel sheet-piles will be driven to bedrock using a 
vibratory hammer. Sheet piles installed with a vibratory hammer also 
will be used to construct ``returns,'' which will be shorter bulkheads 
connecting the new bulkheads to the existing bulkhead under the pier. 
Installation of the sheeting with a vibratory hammer is estimated to 
take less than one hour per pair of sheets. The contractor will 
probably install two sheets at a time and so the time required install 
the sheeting (10 pairs = 20 sheets) using vibratory hammers will only 
be about 8 hours per 10 pairs of sheets. Time requirements for all 
other pile types were estimated based on information compiled from ICF 
Jones and Strokes and Illingworth and Rodkin, Inc. (2012).
    If sufficient construction funds are available, the Navy may 
install a king pile and concrete shutter panel

[[Page 85528]]

bulkhead at Berth 11C as part of Phase 1. The bulkhead will extend from 
the western end of Berth 11B to the southern end of Berth 12. The in-
water construction process will be the same as the process described 
above. Once the Berth 11 bulkheads are complete, the timber dolphins at 
the western end of the berth will be replaced with a single dolphin 
constructed of approximately seven piles.
    The Navy will also install steel H-type sister piles at the 
location of the inboard portal crane rail beam at Berth 11, including 
Berth 11C. The sister piles will provide additional support for the 
portal crane rail system and restore its load-bearing capacity. The 
sister piles will be driven into the bedrock below the pier, in water 
generally less than 10 ft deep, using an impact hammer. The timing of 
this work depends on operational schedules at the berths. The sister 
piles may be installed either before or after the bulkheads are 
constructed.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to the Navy was 
published in the Federal Register on August 9, 2016 (81 FR 52614). That 
notice described, in detail, the Navy's activity, the marine mammal 
species that may be affected by the activity, and the anticipated 
effects on marine mammals. During the public comment period, NMFS 
received comments from the Marine Mammal Commission (Commission) which 
are listed below. The Commission ultimately recommended that NMFS issue 
the IHA, subject to inclusion of the proposed mitigation, monitoring, 
and reporting measures.
    Comment #1: The Commission recommended that NMFS include its new 
thresholds for permanent threshold shift (PTS) and/or temporary 
threshold shift (TTS) in all relevant proposed incidental take 
authorizations rather than when the final authorization is issued.
    Response: On August 4, 2016, NMFS published a Federal Register 
notice announcing the new Guidance. The notice of NMFS' proposal to 
issue an IHA to the Navy was published in the Federal Register on 
August 9, 2016 (81 FR 52614). However, the proposed IHA had been 
finalized and submitted for publication prior to the publication date 
of the Guidance. In the Federal Register notice, NMFS explained the 
approach it would take towards implementation of the new Guidance 
during a transition period. This approach was described previously in 
the Summary of Request section. As explained previously, NMFS fully 
considered the new Guidance in this IHA, which led to expanded Level A 
harassment zones, increased shut-down zones, and authorization of a 
small number of Level A harassment takes for a few species. These 
changes did not notably change our earlier analysis or findings. All 
new IHA requests will be evaluated using the thresholds established in 
the new Guidance.
    Comment #2: The Commission recommended that NMFS (1) follow its 
policy of a 24-hour reset for enumerating the number of each species 
that could be taken during the proposed activities, (2) apply standard 
rounding rules before summing the numbers of estimated takes across 
days, and (3) for species that have the potential to be taken but 
model-estimated or calculated takes round to zero, use group size to 
inform the take estimates--these methods should be used consistently 
for all future incidental take authorizations.
    Response: Calculating predicted take is not an exact science, and 
there are arguments for taking different mathematical approaches in 
different situations and for making qualitative adjustments in other 
situations. NMFS is currently engaged in developing a protocol to guide 
more consistent take calculation given certain circumstances. However, 
the method for estimating take incidental to this action considered 
duration of activities, marine mammal group size, and previous 
monitoring reports.
    Comment #3: The Commission recommended that NMFS require the Navy 
to implement full-time monitoring of Level A and B harassment zones 
during all pile-driving (including drilling rock sockets) and removal 
activities.
    Response: NMFS shall require the Navy to monitor shutdown and Level 
A harassment zones during all impact pile driving activities. The Level 
B zone will be monitored during two-thirds of all pile-driving days. If 
a marine mammal is observed entering the Level B zone, a take will be 
recorded and behaviors documented. The Navy will extrapolate data 
collected during monitoring days and calculate total takes for all 
pile-driving days. NMFS is confident that this approach will provide an 
adequate representation of total takes.

Description of Marine Mammals in the Area of the Specified Activity

    Five marine mammal species, including one cetacean and four 
pinnipeds, may inhabit or transit the waters near the Shipyard in the 
lower Piscataqua River during the specified activity. These include the 
harbor porpoise (Phocoena phocoena), gray seal (Halichoerus grypus), 
harbor seal (Phoca vitulina), hooded seal (Crystphora cristata), and 
harp seal (Pagophilus groenlandicus). None of the marine mammals that 
may be found in the Piscataqua River are listed under the Endangered 
Species Act (ESA). Table 2 lists the marine mammal species that could 
occur in the vicinity of the Shipyard and their estimated densities 
within the project area. As there are not specific density data for any 
of the species in the Piscataqua River, density data from the nearshore 
zone outside the mouth the Piscataqua River in the Atlantic Ocean have 
been used to calculate take.

                       Table 2--Marine Mammal Species Potentially Present in the Piscataqua River in the Vicinity of the Shipyard
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                                                                                              Approximate density in the vicinity of the project area
                                  Stock  abundance       Relative         Season(s) of                      (individuals per km\2\) \3\
            Species                     \1\           occurrence in        occurrence    ---------------------------------------------------------------
                                                     Piscataqua River                         Winter          Spring          Summer           Fall
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Porpoise Phocoena         79,883 (CV =       Occasional use...  Spring to Fall             1.2122          1.1705          0.7903          0.9125
 phocoena Gulf of Maine/Bay of    0.32).                                (April to
 Fundy stock.                                                           December) \4\.

[[Page 85529]]

 
Gray Seal Halichoerus grypus     331,000 \2\......  Common...........  Year-round.......          0.2202          0.2202          0.2202          0.2202
 Western North Atlantic stock.
Harbor Seal Phoca vitulina       75,834 (CV =       Common...........  Year-round.......          0.1998          0.1998          0.1998          0.1998
 Western North Atlantic stock.    0.15).
Hooded Seal Crystphora cristata  592,100 \2\......  Rare.............  Winter to Spring              N/A             N/A             N/A             N/A
 Western North Atlantic stock.                                          (January-May).
Harp Seal Pagophilus             7,100,000........  Rare.............  Winter to Spring           0.0125          0.0125          0.0125          0.0125
 groenlandicus Western North                                            (January-May).
 Atlantic stock.
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Source: Waring et al., 2015, except where noted.
Notes:
\1\ No population estimate is available for the U.S. western North Atlantic stock; therefore, the best population estimates are those for the Canadian
  populations as reported in Waring et al., 2015.
\2\ Source: Waring et al., 2007. The population estimate for the Western North Atlantic hooded seal population was not updated in Waring et al., 2015.
\3\ Density data are taken from the Navy Marine Species Density Database (Crain 2015; Krause 2015).
\4\ Densities shown for seasons when each species would not be likely to occur in the river.
N/A = No data available.
Key:
CV = coefficient of variation.
km\2\ = square kilometer.

    A detailed description of species likely to be affected by the 
Navy's project, including brief introductions to the species and 
relevant stocks, as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (81 FR 
52614) and are not repeated here. Please refer to that Federal Register 
notice for these descriptions. Please also refer to NMFS' Web site 
(www.nmfs.noaa.gov/pr/species/mammals/) for generalized species 
accounts.

Potential Effects of the Specified Activity on Marine Mammals

    The effects of underwater noise from pile driving, drilling, and 
extraction activities for the Navy's project have the potential to 
result in injury to and behavioral harassment of marine mammals in the 
vicinity of the action area. The Federal Register notice for the 
proposed IHA (81 FR 52614) included a discussion of the potential 
behavioral effects of anthropogenic noise on marine mammals and, 
therefore, that information is not repeated here. Level A harassment, 
in the form of PTS may also occur.

Anticipated Effects on Marine Mammal Habitat

    The main impact associated with the Navy's waterfront improvement 
project will be temporarily elevated sound levels and the associated 
direct effects on marine mammals. The project will not result in 
permanent impacts to habitats used directly by marine mammals, such as 
haulout sites, but may have potential short-term impacts to food 
sources such as forage fish and minor impacts to the immediate 
substrate during installation and removal of piles during the project. 
These potential effects are discussed in detail in the Federal Register 
notice for the proposed IHA (81 FR 52614). Therefore, that information 
is not repeated here.

Mitigation Measures

    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. NMFS regulations require applicants for incidental 
take authorizations to include information about the availability and 
feasibility (economic and technological) of equipment, methods, and 
manner of conducting such activity or other means of effecting the 
least practicable adverse impact upon the affected species or stocks, 
their habitat (50 CFR 216.104(a)(11)). For this project, the Navy 
worked with NMFS to develop the following mitigation measures to 
minimize the potential impacts to marine mammals in the project 
vicinity. The primary purposes of these mitigation measures are to 
minimize sound levels from the activities, avoid unnecessary exposure 
to elevated sound levels, and to monitor marine mammals within 
designated zones of influence corresponding to NMFS' Level A and B 
harassment thresholds which are depicted in Tables 3 and 4 found later 
in the Estimated Take by Incidental Harassment section.
    In addition to the measures described later in this section, the 
Navy will employ the following standard mitigation measures:

[[Page 85530]]

    Time Restrictions--Pile driving/removal (vibratory as well as 
impact) will only be conducted during daylight hours so that marine 
mammals can be adequately monitored to determine if mitigation measures 
are to be implemented.
    Establishment of Shutdown zone--During pile driving and removal, 
shutdown zones shall established to prevent injury to marine mammals as 
determined under the thresholds in NMFS' new Guidance. During all pile 
driving and removal activities, regardless of predicted sound pressure 
levels (SPLs), the entire shutdown zone will be monitored to prevent 
injury to marine mammals from their physical interaction with 
construction equipment during in-water activities. The shutdown zone 
during impact driving will extend to 75 m for all authorized species. 
The shutdown during vibratory driving will extend to 55 m for all 
authorized species. Pile driving and removal operations will cease if a 
marine mammal approaches the shutdown zone. Pile driving and removal 
operations will restart once the marine mammal is visibly seen leaving 
the zone or after 15 minutes have passed with no pinnipeds sightings or 
30 minutes with no cetacean sightings.
    During all in-water construction other than pile-driving (e.g., 
using standard barges, tug boats), if a marine mammal comes within 10 
m, operations shall cease and vessels shall reduce speed to the minimum 
level required to maintain steerage and safe working conditions.
    Establishment of Level A Harassment Zone--The Level A harassment 
zone is an area where animals may be exposed to sound levels that could 
result in PTS injury. The primary purpose of the Level A zone is 
monitoring for documenting incidents of Level A harassment. The Level A 
zones will extend from the 75 m shutdown zone out to 340 m for harbor 
porpoises and out to 155 m for gray and harbor seals during all impact 
driving activities. Determination of Level A zones is described later 
in the section Estimated Take by Harassment. The Level A injury zone 
will be monitored during all impact driving activities. Animals 
observed in the Level A harassment zone will be recorded as Level A 
takes.
    Establishment of Level B Zone--The Level B zones are areas in which 
SPLs equal or exceed 160 decibal root mean square (dB rms) for impact 
driving and 120 dB rms for vibratory driving but are less than the 
Level A zone. The shutdown zone during all vibratory driving is 55 m. 
The primary purpose of the Level B zone is monitoring for documenting 
incidents of Level B harassment. Monitoring of the Level B zone is 
discussed in greater detail later (see ``Monitoring and Reporting''). 
The entire Level B zone will be monitored during two-thirds of all pile 
driving days. If a marine mammal is observed entering the Level B zone, 
a take will be recorded and behaviors documented. The Navy will 
extrapolate data collected during monitoring days and calculate total 
takes for all pile driving days.
    All shutdown and disturbance zones will initially be based on the 
distances from the source that were predicted for each threshold level. 
However, threshold distances may be changed as necessary depending on 
results from the required hydroacoustic monitoring. This may require a 
modification to the issued IHA.
    Soft Start--The use of a soft start procedure is believed to 
provide additional protection to marine mammals by providing a warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. The Navy will use soft-start 
techniques recommended by NMFS for impact driving. Soft start must be 
conducted at beginning of day's activity and at any time pile driving 
has ceased for more than 30 minutes. For impact hammer driving, 
contractors are required to provide an initial set of three strikes 
from the impact hammer at 40 percent energy, followed by a 30-second 
waiting period, then two subsequent 3-strike sets. The 30-second 
waiting period is proposed based on the Navy's recent experience and 
consultation with NMFS on a similar project at Naval Base Kitsap at 
Bangor (Department of the Navy 2010).

Mitigation Conclusions

    NMFS has established various mitigation measures and considered a 
range of other measures in the context of ensuring that NMFS prescribes 
the means of effecting the least practicable impact on the affected 
marine mammal species and stocks and their habitat. We included 
measures in the IHA which consider the following factors in relation to 
one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's measures, as well as 
other measures considered by NMFS, our determination is that the 
mitigation measures provide the means of effecting the least 
practicable impact on marine mammals 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 ITA 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 ITAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that would 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.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    2. An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    3. An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [ssquf] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli;
    4. An increased knowledge of the affected species; and

[[Page 85531]]

    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.

Acoustic Monitoring

    The Navy will implement in situ acoustic monitoring efforts to 
measure SPLs from in-water construction activities. The Navy will 
collect and evaluate sound level measurements for 10 percent of the 
pile-driving activities conducted, sufficient to confirm measured 
contours associated with the acoustic zones of influence (ZOI). The 
Navy will conduct acoustic monitoring at the source (33 feet) and, 
where the potential for Level A harassment exists (out to 340 meters 
for harbor porpoises and out to 155 m for gray and harbor seals for 
impact pile driving), at a second representative monitoring location at 
an intermediate distance between the cetacean and pinniped shutdown 
zones (75 m for impact, 55 m for vibratory). In conjunction with 
measurements of SPLs, shutdown monitoring locations, Level A monitoring 
locations there will also be intermittent verification for impact 
driving or pile driving and extraction to determine the actual 
distances to the Level B 160 dB re rms (impact) and 120 re rms 
(vibratory) isopleths. Acoustic measurements will continue during 
subsequent years of in-water construction for the Project. The Navy 
shall initiate acoustic monitoring and submit preliminary findings to 
NMFS within 45 days of commencement of pile driving activities.

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 construction. 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. NMFS requires that the observers have 
no other construction-related tasks while conducting monitoring. 
Qualified observers are 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;
     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.
    The Navy will monitor the shutdown zone and Level A zone before, 
during, and after pile driving activities. The Level B zone will be 
monitored during two-thirds of pile driving. Based on NMFS 
requirements, the Marine Mammal Monitoring Plan shall include the 
following procedures:
     A minimum of two marine mammal observers (MMOs) will be in 
place during all pile-driving operations. MMOs designated by the 
contractor 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 equipment operators. The MMOs 
shall be separated and spread out, looking in opposite directions 
across the ZOIs;
     The individuals shall scan the waters within each 
monitoring zone activity using big-eye binoculars (25x or equivalent), 
hand held binoculars (7x) and visual observation;
     Monitoring distances will be measured with range finders;
     Bearing to animals will be determined using a compass;
     The MMOs shall have no other construction-related tasks 
while conducting monitoring and will be trained on the observation 
zones, species identification, how to observe, and how to fill out the 
data sheets by the Navy Natural Resources Manager prior to any pile 
driving activities;
     The Navy shall conduct briefings between construction 
supervisors and crews, marine mammal monitoring team, acoustical 
monitoring team prior to the start of all pile driving activities, and 
when new personnel join the work, in order to explain responsibilities, 
communication procedures, marine mammal monitoring protocol, and 
operational procedures. All personnel working in the project area will 
watch the Navy's Marine Species Awareness Training video. An informal 
guide will be included with the monitoring plan to aid in identifying 
species if they are observed in the vicinity of the Project area;
     Monitoring shall take place from 15 minutes prior to 
initiation of pile driving activity through 30 minutes post-completion 
of pile driving activity. Pre-activity monitoring shall be conducted 
for 15 minutes to ensure that the shutdown zone is clear of marine 
mammals, and pile driving may commence when observers have declared the 
shutdown zone clear of marine mammals;
     Pile driving shall only take place when the entire 
shutdown and Level A zones are visible and can be adequately monitored. 
If conditions (e.g., fog) prevent the visual detection of marine 
mammals, activities with the potential to result in Level A harassment 
will not be initiated. If such conditions arise after the activity has 
begun, impact pile driving will be curtailed, but vibratory pile 
driving or extraction will be allowed to continue;
     If a marine mammal approaches or enters the shutdown zone, 
all pile driving activities at that location shall be halted. If pile 
driving is halted or delayed at a specific location due to the presence 
of a marine mammal, the activity may not commence or resume until 
either the animal has voluntarily left and been visually confirmed 
beyond the shutdown zone or 15 minutes have passed without re-detection 
of the animal; and
     Shutdown will occur if a species for which authorization 
has not been granted or for which the authorized numbers of takes have 
been met approaches or is observed within the Level B harassment zone. 
The Navy will then contact NMFS immediately.

Data Collection

    MMOs will use NMFS' 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. At a minimum, the following information 
will 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);

[[Page 85532]]

     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 distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations; and
     Other human activity in the area.

Reporting Measures

    The Navy will provide NMFS with a draft monitoring report within 90 
days after completion of pile driving activities or 60 days prior to 
any subsequent authorization, whichever is sooner. A monitoring report 
is required before another authorization can be issued to the Navy. 
This report will detail the monitoring protocol, summarize the acoustic 
and marine mammal data recorded during monitoring, and estimate the 
number of marine mammals that may have been harassed. If no comments 
are received from NMFS within 30 days, the draft final report will 
constitute the final report. If comments are received, a final report 
must be submitted within 30 days after receipt of comments. The report 
will include data and information listed in Section 13.3 of the 
application.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner not authorized by the 
IHA (e.g., equipment interaction, ship-strike) the Navy shall 
immediately cease the specified activities and report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the Northeast/Greater Atlantic Regional Stranding 
Coordinator. The report will include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Description of the incident;
     Status of all sound source use in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with the Navy to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The Navy will not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that the Navy discovers an injured or dead marine 
mammal, and the lead MMO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
the Navy will immediately report the incident to the Chief of the 
Permits and Conservation Division, Office of Protected Resources, NMFS, 
and the Northeast/Greater Atlantic Regional Stranding Coordinator. The 
report will include the same information identified in the paragraph 
above. Activities will be able to continue while NMFS reviews the 
circumstances of the incident. NMFS will work with the Navy to 
determine whether modifications in the activities are appropriate.
    In the event that the Navy discovers an injured or dead marine 
mammal, and the lead MMO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Navy will report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, and the Northeast/Greater Atlantic Regional 
Stranding Coordinator within 24 hours of the discovery. The Navy will 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network.

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 will be from impact and vibratory pile 
driving and involve PTS (Level A) and temporary changes in behavior 
(Level B). The proposed notice of authorization (81 FR 52614) describes 
Level A and Level B impacts, including PTS. Low level responses to 
sound (e.g., short-term avoidance of an area, short-term changes in 
locomotion or vocalization) are less likely to result in fitness 
effects on individuals that will ultimately 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 individual animals could potentially be significant and 
could potentially translate to effects on annual rates of recruitment 
or survival (e.g., Lusseau and Bejder, 2007; Weilgart, 2007).
    Specific understanding of the activity and the effected species are 
necessary to predict the severity of impacts and the likelihood of 
fitness impacts. However, we start with the estimated number of takes, 
understanding that additional analysis is needed to understand what 
those takes mean. 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, taking the duration of the activity into consideration. 
This practice provides a good sense of the number of instances of take, 
but potentially overestimates the numbers of individual marine mammals 
taken. 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 Navy has requested authorization for the incidental taking of 
small numbers of harbor porpoises, harbor seals, gray seals, hooded 
seals and harp seals near the Shipyard that may result from pile 
driving during construction activities associated with waterfront 
improvement project. We described applicable sound thresholds for 
determining Level B effects to marine mammals before describing the 
information used in estimating the sound fields; the 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 (81 FR 52614). Information on applicable sound 
thresholds for determining Level A auditory injury harassment may be

[[Page 85533]]

found in the new Guidance document (81 FR 51694; August 4, 2016). NMFS' 
calculation of the Level A harassment zones utilized the methods 
presented in Appendix D of the new Guidance and the accompanying 
Optional User Spreadsheet. The spreadsheet accounts for a marine mammal 
hearing group's potential susceptibility to noise-induced hearing loss 
at different frequencies (i.e., auditory weighting functions) using 
Weighting Factor Adjustments (WFAs). NMFS' new acoustic thresholds use 
dual metrics of cumulative sound exposure level and peak sound level 
for impulsive sounds (e.g., impact pile driving) and cumulative sound 
exposure level for non-impulsive sounds (e.g., vibratory pile driving). 
NMFS used source level measurements from similar pile driving events 
coupled with practical spreading loss (15 log R), and applied the 
updated PTS onset thresholds for impulsive peak sound pressure and 
cumulative sound exposure level (SELcum) metric using the 
Optional User spreadsheet derived from the new acoustic guidance to 
determine distance to the isopleth for PTS onset for impact pile 
driving. In the case of the duel metric acoustic thresholds for 
impulsive sound, the larger of the two isopleths for calculating PTS 
onset is used. Similarly, for vibratory pile driving, NMFS used the 
Optional User Spreadsheet to determine isopleth estimates for PTS onset 
using the SELcum metric (http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm). In determining the cumulative sound exposure 
levels, the Guidance considers the duration of the activity within a 
24-h period, and the associated adjustment from the WFAs by hearing 
group. All calculated distances to marine mammal sound thresholds are 
provided in Tables 3 and 4. These values were then used to develop 
mitigation measures for proposed pile driving activities.
    The new Guidance indicates that there is a greater likelihood of 
auditory injury for phocid pinnipeds (i.e., seals) and for high-
frequency cetaceans (i.e., harbor porpoise) than was considered in our 
Federal Register notice of proposed authorization. In order to address 
this increased likelihood, we increased the shutdown zones required 
from 10 m to 75 m during impact driving and 10 m to 55 m during 
vibratory driving. In addition, to account for the potential that 
animals may occur in the Level A harassment zones, we authorize the 
taking by Level A harassment of 10 harbor porpoises, 4 harbor seals and 
2 gray seals.

  Table 3--Level A Harassment Isopleths From Impact and Vibratory Pile
                                 Driving
------------------------------------------------------------------------
                                    High-frequency
    Functional hearing group      cetaceans  (harbor   Phocid pinnipeds
                                      porpoises)            (seals)
------------------------------------------------------------------------
Impact Pile Driving:
    PTS SELcum* threshold (dB)..  155...............  185.
    PTS Isopleth to threshold     340 (336 rounded).  155 (151 rounded).
     (meters).
Vibratory Pile Driving:
    PTS SELcum* threshold (dB)..  173...............  201.
    PTS Isopleth to threshold     55................  23.
     (meters).
------------------------------------------------------------------------
* Cumulative Sound Exposure Level


                  Table 4--Level B Harassment Isopleths From Impact and Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
                                       Behavioral
                                     thresholds for                                  Attenuation distance to
        Drilling activity            cetaceans and         Propagation model                threshold
                                       pinnipeds
----------------------------------------------------------------------------------------------------------------
Impact Hammer...................  160 dB RMS.........  Cylindrical Spreading     1.58 km (0.984 mi).
                                                        Loss (<3 m water depth).
Vibratory Hammer................  120 dB RMS.........  Practical Spreading Loss  7.35 km (4.57 mi).
                                                        (3 m to 15 m water
                                                        depth).
----------------------------------------------------------------------------------------------------------------
Note: All source levels are referenced to 1 microPascal (re 1 [micro]Pa).

    No sound is expected to fully attenuate to the 120 dB rms threshold 
for vibratory pile driving because topographic features (e.g. islands, 
shorelines) in the river will prevent attenuation to the full distance 
of 7.35 km. No sound will reach the 160 dB rms threshold at the full 
distance of 1.58 km for the impact hammer due to these same sound-
blocking topographical features.
    Animals do occasionally haul-out on rocks/jetties and could be 
flushed into the water. However, it is assumed that any hauled out 
animals within the disturbance zone will also enter the water and be 
exposed to underwater noise. Therefore, to avoid possible double-
counting, acoustic disturbance to pinnipeds resulting from airborne 
sounds from pile driving was not considered.

Description of Take Calculation

    The take calculations presented here relied on the best data 
currently available for marine mammal populations within close 
proximity to the Piscataqua River. There are not population data for 
any marine mammal species specifically within the Piscataqua River, 
therefore, the population data used are from the most recent NMFS Stock 
Assessment Reports (SAR) for the Atlantic Ocean. The most recent SAR 
population number was used for each species. The specific SAR used is 
discussed within each species take calculation in Sections 6.6.1 
through 6.6.5 of the application. The formula was developed for 
calculating take due to pile driving, extraction, and drilling and 
applied to the species-specific noise-impact threshold. The formula is 
founded on the following assumptions:
     All piles to be installed will have a noise disturbance 
distance equal to the pile that causes the greatest noise disturbance;
     Pile driving could potentially occur every day of the in-
water work window; however, it is estimated no more than a few hours of 
pile driving will occur per day; and
     An individual can only be taken once per day due to sound 
from pile driving, whether from impact or vibratory pile driving.
    The conservative assumption is made that all pinnipeds within the 
ZOI will be underwater during at least a portion of the noise 
generating activity and, hence, exposed to sound at the predicted 
levels.
    The calculation for marine mammal takes is estimated by the 
following unless stated otherwise:
Take estimate = (n * ZOI) * X days of total activity


[[Page 85534]]


Where:
n = density estimate used for each species
X = number of days of pile driving, estimated based on the total 
number of piles and the average number of piles that the contractor 
can install per day.
ZOI = noise threshold zone of influence (ZOI) impact area.

    The calculation n * ZOI produces an estimate of the abundance of 
animals that could be present in the area of exposure per day. The 
abundance is then multiplied by the total number of days of pile 
driving to determine the take estimate. Because the estimate must be a 
whole number, this value was rounded up.
    The ZOI impact area is the estimated range of impact on marine 
mammals during in-water construction. The ZOI is the area in which in-
water sound will exceed designated NMFS thresholds. The formula for 
determining the area of a circle ([pi]* radius\2\) was used to 
calculate the ZOI around each pile, for each threshold. The distances 
specified were used for the radius in the equation. The ZOI impact area 
does not encompass landforms that may occur within the circle. The ZOI 
also took into consideration the possible affected area of the 
Piscataqua River from the furthest pile driving/extraction site with 
attenuation due to land shadowing from islands in the river as well as 
the river shoreline.

Harbor Porpoise

    Harbor porpoises may be present in the project area during spring, 
summer, and fall, from April to December. Based on density data from 
the Navy Marine Species Density Database (NMSDD), their presence is 
highest in spring, decreases in summer, and slightly increases in fall. 
Average density for the predicted seasons of occurrence was used to 
determine abundance of animals that could be present in the area for 
exposure, using the equation abundance = n * ZOI. Estimated abundance 
for harbor porpoises was 0.96 animals per day generated from the 
equation (0.9445 km\2\ Level B zone * 1.02 animals/km\2\). Therefore, 
the number of Level B harbor porpoise exposures within the ZOIs is (156 
days * 0.96 animals/day) resulting in up to 150 Level B takes of harbor 
porpoises.
    To estimate potential take from beyond the 75 m shutdown zone out 
to 340 m (isopleth for full Level A injury zone), the density of harbor 
porpoises in the area of the full Level A injury zone (0.354673 km\2\) 
was estimated at 1.02 harbor porpoises/km\2\. The area of the 75 meter 
shutdown zone, 0.01767 km\2\ was subtracted from the full Level A 
injury zone to obtain the area of the Level A take zone (0.337003 
km\2\.) Using the density of harbor porpoises potentially present (1.02 
animal/km\2\) and the area of the Level A take zone (0.337003 km\2\), 
less than one (0.3437) harbor porpoise was estimated to be exposed to 
injury a day over the 13 days of impact pile driving. While the 
calculated take for harbor porpoises is 4.47 animals (0.3437 harbor 
porpoise/day * 13 days), NMFS conservatively authorizes 10 takes of 
harbor porpoises that could be exposed to injurious noise levels during 
impact pile driving.

Gray Seal

    Gray seals may be present year-round in the project vicinity, with 
constant densities throughout the year. Gray seals are less common in 
the Piscataqua River than the harbor seal.
    As with gray seals, NMFS originally used density data from NMSDD to 
calculate exposures for the proposed Federal Register notice. As noted 
previously, the NMSDD data pertains to offshore waters. Local 
information regarding the density and abundance of harbor seals is not 
available in the immediate vicinity of the shipyard, but seals are 
likely to be attracted to nearby haulout locations. Therefore, it is 
likely that gray seal densities may be greater than those listed in 
NMSDD. Given this information, NMFS estimates that one gray seal may be 
taken, by Level B harassment, per day resulting in a final authorized 
take of 156 gray seals.
    To estimate potential take from past the 75 m shutdown zone to 155 
m (isopleth for full Level A injury zone), the density of gray seals as 
provided by the NMSDD in the area of the full Level A injury zone 
(0.0716314 km\2\) was estimated at 0.2202 grey seals/km\2\. The area of 
the 75 meter shutdown zone, 0.01767 km\2\, was subtracted from the full 
Level A injury zone to obtain an area of 0.0539 km\2\. Using the 
density of gray seals potentially present (0.2202 animal/km\2\) and the 
area of the Level A take zone (0.0539 km\2\), less than one gray seal 
was estimated to be exposed to injury a day (0.0118 animals/day) with 
less than one injury exposure (0.1545) animals) during 13 days of 
impact driving. However, given that the NMSDD may underrepresent local 
density information NMFS will conservatively authorize the Level A take 
of two gray seals for the life of the IHA.

Harbor Seal

    Harbor seals may be present year-round in the project vicinity, 
with constant densities throughout the year. Harbor seals are the most 
common pinniped in the Piscataqua River near the Shipyard. In the 
proposed Federal Register notice NMFS used density data from NMSDD to 
calculate exposures. However, the NMSDD provides density data 
pertaining to offshore waters and is not generally intended to be 
applied to inshore locations. Local information regarding density and 
abundance of gray seals is not available in the immediate vicinity of 
the shipyard. Therefore, it is likely that local densities may be far 
greater than those listed in NMSDD. They are also likely to occur more 
frequently than gray seals. Given this information, NMFS authorizes the 
take, by Level B harassment of two harbor seals per day resulting in a 
final of 312 harbor seals.
    To estimate potential take from past the 75 m shutdown zone to 155 
m (isopleth for full Level A injury zone), the density of harbor seals 
in the area of the full Level A injury zone (0.0716314 km\2\) was 
estimated at 0.1998 harbor seals/km\2\. The area of the 75 m shutdown 
zone (0.01767 km\2\) was subtracted from the full Level A injury zones 
to obtain a Level A take zone area of 0.0539 km\2\. Using the density 
of harbor seal potentially present (0.1998 animal/km\2\) and the area 
of the Level A take zone (0.0539 km\2\), less than one harbor seal was 
estimated to be exposed to injury per day (0.0107 seals/day) during the 
13 days of impact driving resulting in a total calculated take of 
0.1401 seals. However, since the NMSDD likely underrepresents density 
and NMFS assumed that harbor seals are more likely to occur in the 
project area compared to gray seals, NMFS authorizes the Level A take 
of four harbor seals, which is twice the amount authorized for gray 
seals.

Harp Seal

    Harp seals may be present in the Project vicinity during the winter 
and spring, from January through February. In general, harp seals are 
observed far less frequently than the harbor seal and gray seal in the 
Piscataqua River. These animals are conservatively assumed to be 
present within the underwater Level B harassment zone during each day 
of in-water pile driving. Average density for the predicted seasons of 
occurrence was used to determine abundance of animals that could be 
present in the area for exposure, using the equation abundance = n * 
ZOI. Abundance for harp seals was 0.0118/day (0.9945 km\2\ * 0.0125 
animals/km\2\). Therefore, the number of Level B harp seal takes within 
the ZOI is (156 days * 0.0118 animals/day) resulting in up to 2 level B 
exposures of harp seals within the ZOI. NMFS is, however, 
conservatively

[[Page 85535]]

authorizing a total of 5 harp seal Level B takes and zero Level A 
takes.

Hooded Seal

    Hooded seals may be present in the project vicinity during the 
winter and spring, from January through May, though their exact 
seasonal densities are unknown. In general, hooded seals are much rarer 
than the harbor seal and gray seal in the Piscataqua River. Anecdotal 
sighting information indicates that two hooded seals were observed from 
the Shipyard in August 2009, but no other observations have been 
recorded (Trefry, November 20, 2015). Information on the average 
density for hooded seals was not available. Given the low likelihood of 
occurrence NMFS is conservatively authorizing a total of 5 hooded seal 
Level B takes and no Level A takes.
    The total number of takes authorized for the five marine mammal 
species that may occur within the Navy's project area during the 
duration of in-water construction activities are presented in Table 5.

 Table 5--Authorized Level A and Level B Harassment Takes Over 156 Days
------------------------------------------------------------------------
                 Species                   Level B takes   Level A takes
------------------------------------------------------------------------
Harbor Porpoise.........................             150              10
Gray Seal...............................             156               2
Harbor Seal.............................             312               4
Harp Seal...............................               5               0
Hooded Seal.............................               5               0
------------------------------------------------------------------------

Analysis and Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of 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, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A and Level B 
harassment takes, the number of estimated mortalities, effects on 
habitat, and the status of the species.
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 2. There is little information about the 
nature of severity of the impacts or the size, status, or structure of 
any affected species or stock that would lead to a different analysis 
for this activity. Pile driving and pile extraction activities 
associated with the Navy project as outlined previously have the 
potential to injure, disturb or displace marine mammals. Specifically, 
the specified activities may result in Level B harassment (behavioral 
disturbance) for all species authorized for take, from underwater sound 
generated from pile driving. Level A injury may also occur to limited 
numbers of three marine mammal species. Takes could occur if 
individuals of these species are present in the Level A and Level B 
ensonified zones when pile driving activities are under way.
    Any takes from Level A harassment will potentially be in the form 
of PTS and may affect small numbers of harbor porpoise, harbor seal, 
and gray seal. As described previously, because of the proximity to the 
source in which the animals would have to approach, or the longer time 
in which they would need to stay in a farther proximity to the source 
(four hours at the outer perimeter of Level A zone), we believe this 
unlikely, but have acknowledged it could occur--however, any PTS 
incurred as a result of this activity would not be expected to be of a 
severe degree. That would necessitate even more time in the vicinity of 
the source, which is considered unlikely given required mitigation and 
general anticipated behaviors of avoidance around loud sounds. 
Furthermore, death is unlikely for all authorized species as the Navy 
will enact required monitoring and mitigation measures and sound levels 
generated from the specified activities are not anticipated to cause 
mortality. The Navy will monitor shutdown and Level A zones during all 
pile driving activities, which will limit potential injury to these 
species. The Navy will also record all occurrences of marine mammals in 
specified Level A zones. In this analysis, we considered the potential 
for limited numbers of harbor porpoise, harbor seal and gray seal to 
incur auditory injury and found that it would not change our previous 
determinations.
    Any takes from Level B harassment will be due to behavioral 
disturbance. The potential for these outcomes is greatly reduced 
through the implementation of the following planned mitigation 
measures. The Navy will employ a ``soft start'' when initiating impact 
driving activities. Given sufficient ``notice'' through use of soft 
start, marine mammals are expected to move away from a pile driving 
source. The Navy will monitor shutdown and disturbance zones where the 
likelihood of marine mammal detection by trained observers is high 
under the environmental conditions described for waters around the 
project area. Shutdowns will occur if animals come within 10 meters of 
operational activities other than pile driving to avoid injury, serious 
injury, or mortality. Furthermore, the Navy's proposed activities are 
highly localized impacting a small portion of the Piscataqua River 
which is only a subset of the ranges of species for which take is 
authorized.
    The project also is not expected to have significant adverse 
effects on marine mammal habitat, as analyzed in detail in the 
``Anticipated Effects on Marine Mammal Habitat'' section in the 
proposed Federal Register notice (81 FR 52614). No important feeding 
and/or reproductive areas for marine mammals are known to be near the 
project area. Project-related activities may cause some fish to leave 
the area of disturbance, thus temporarily impacting marine mammals' 
foraging opportunities in a limited portion of the foraging range; but, 
because of the relatively small area of the habitat range utilized by 
each species that may be affected, the impacts to marine mammal habitat 
are not expected to cause significant or long-term negative 
consequences.

[[Page 85536]]

    Exposures to elevated sound levels produced during pile driving 
activities may cause brief startle reactions or short-term behavioral 
modification by the animals. 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; Lerma, 2014). 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. These reactions 
and behavioral changes are expected to subside quickly when the 
exposures cease. The pile driving activities analyzed here are similar 
to, or less impactful than, numerous construction activities conducted 
in other similar locations, which have taken place with no reported 
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 here 
are unlikely to result in permanent hearing impairment or to 
significantly disrupt foraging behavior. Thus, even repeated Level B 
harassment of some small subset of the species is unlikely to result in 
any realized decrease in fitness for the affected individuals, and thus 
will 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. Finally, if sound 
produced by project activities is sufficiently disturbing, animals are 
likely to simply avoid the project area while the activity is 
occurring.
    In summary, the negligible impact analysis is based on the 
following: (1) The possibility of mortality is reasonably considered 
discountable; (2) the area of potential impacts is highly localized; 
(3) anticipated incidents of Level B harassment consist of temporary 
modifications in behavior; (4) anticipated incidences of Level A 
harassment would be in the form of a small degree of PTS to limited 
numbers of three species; (5) the absence of any significant habitat 
within the project area, including rookeries, or known areas or 
features of special significance for foraging or reproduction; and (6) 
the anticipated efficacy of the required mitigation measures in 
reducing the effects of the specified activity. 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 of marine mammal species or stocks. Therefore, 
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 proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the Navy's proposed waterfront improvement project will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers

    Table 6 illustrates the numbers of animals that could be exposed to 
Level A and Level B harassment thresholds from work associated with the 
waterfront improvement project. The analyses provided represents that 
the numbers of authorized Level A and Level B takes account for <0.01% 
of the populations of these stocks that could be affected. These are 
small numbers of marine mammals relative to the sizes of the affected 
species and population stocks under consideration.

   Table 6--Estimated Number of Exposures and Percentage of Stocks That May Be Subject to Level A and Level B
                                                   Harassment
----------------------------------------------------------------------------------------------------------------
                                                                                     Stock(s)
                    Species                             Authorized takes             abundance    Percentage  of
                                                                                     estimate       total stock
----------------------------------------------------------------------------------------------------------------
Harbor Porpoise...............................  150 Level B, 10 Level A.........          79,883           <0.01
Gulf of Maine/Bay of Fundy stock..............
Gray Seal.....................................  156 Level B, 2 Level A..........         331,000           <0.01
Western North Atlantic stock..................
Harbor Seal...................................  312 Level B, 4 Level A..........          75,834           <0.01
Western North Atlantic stock..................
Harp Seal.....................................  5...............................       7,100,000           <0.01
Western North Atlantic stock..................
Hooded Seal...................................  5...............................         592,100           <0.01
----------------------------------------------------------------------------------------------------------------

    Based on the methods used to estimate take, 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, NMFS has determined that the total taking of 
affected species or stocks will not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    No species listed under the ESA are expected to be affected by 
these activities and none are authorized to be taken in the IHA. 
Therefore, NMFS determined that issuance of the IHA has no effect on 
ESA-listed species and section 7 consultation under the ESA was not 
required to issue the IHA

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 waterfront improvement project. NMFS made the Navy's EA available 
to the public for review and comment,

[[Page 85537]]

concurrently with the publication of the proposed IHA, on the NMFS Web 
site (at www.nmfs.noaa.gov/pr/permits/incidental/), 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. 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, 
adopted that EA and signed a Finding of No Significant Impact (FONSI) 
on November 8, 2016.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
Navy for a waterfront improvement project at the Portsmouth Naval 
Shipyard in Kittery, Maine, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: November 18, 2016.
Donna Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-28451 Filed 11-25-16; 8:45 am]
 BILLING CODE 3510-22-P