[Federal Register Volume 84, Number 237 (Tuesday, December 10, 2019)]
[Proposed Rules]
[Pages 67404-67421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26429]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 191202-0097]
RIN 0648-BH28


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to U.S. Navy Construction Activities at Naval Weapons 
Station Seal Beach, California

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for 
authorization to take marine mammals over the course of five years 
(2020-2025) incidental to conducting construction activities related to 
development of a new ammunition pier at Seal Beach, California. As 
required by the Marine Mammal Protection Act (MMPA), NMFS is proposing 
regulations to govern that take, and requests comments on the proposed 
regulations. NMFS will consider public comments prior to making any 
final decision on the issuance of the requested MMPA authorization and 
will summarize and respond to such comments in the final notice of our 
decision.

DATES: Comments and information must be received no later than January 
9, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0131, by either of the following methods:
     Electronic submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0131, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).

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

SUPPLEMENTARY INFORMATION:

Availability

    A copy of the Navy's application and any supporting documents, as 
well as a list of the references cited in this document, may be 
obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-ammunition-pier-and-turning-basin-naval. In case of problems accessing these documents, please call the 
contact listed above (see FOR FURTHER INFORMATION CONTACT).

Purpose and Need for Regulatory Action

    We received an application from the Navy requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. This proposed rule would establish a framework under the 
authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the 
authorization of take by Level B harassment of marine mammals 
incidental to the Navy's construction activities related to development 
of a new ammunition pier at Seal Beach, California, including impact 
and vibratory pile driving. Please see ``Background'' below for 
definitions of harassment.

Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to five years 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the ``Proposed Mitigation'' 
section), as well as monitoring and reporting requirements. Section 
101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR 
part 216, subpart I provide the legal basis for issuing this proposed 
rule containing five-year regulations, and for any subsequent LOAs. As 
directed by this legal authority, this proposed rule contains 
mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Proposed Rule

    Following is a summary of the major provisions of this proposed 
rule regarding Navy construction activities. These measures include:
     Required monitoring of the construction areas to detect 
the presence of marine mammals before beginning construction 
activities.
     Shutdown of construction activities under certain 
circumstances to avoid injury of marine mammals.
     Soft start for impact pile driving to allow marine mammals 
the opportunity to leave the area prior to beginning impact pile 
driving at full power.

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not

[[Page 67405]]

intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization may be 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to as ``mitigation''); 
and requirements pertaining to the mitigation, monitoring and reporting 
of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the proposed action qualifies to be 
categorically excluded from further NEPA review.
    Information in the Navy's application and this notice collectively 
provide the environmental information related to proposed issuance of 
these regulations and subsequent incidental take authorization for 
public review and comment. We will review all comments submitted in 
response to this notice prior to concluding our NEPA process or making 
a final decision on the request for incidental take authorization.

Summary of Request

    On September 10, 2019, we received an adequate and complete request 
from the Navy requesting authorization for take of marine mammals 
incidental to construction activities related to development of a new 
ammunition pier at Seal Beach, California. On September 17, 2019 (84 FR 
48914), we published a notice of receipt of the Navy's application in 
the Federal Register, requesting comments and information related to 
the request for 30 days. Our consideration of the Navy's request was 
informed by review by the Marine Mammal Commission, and the Navy 
submitted a revised, final version of the application on November 26, 
2019. No formal comments were received during the public review period.
    The Navy proposes to conduct construction necessary for development 
of a new ammunition pier at Naval Weapons Station (NWS) Seal Beach, 
California. Construction activities include construction of a new pile-
supported pier, construction of a new breakwater and causeway, dredging 
of the turning basin and creation of a new navigation channel for 
public access, installation of new moorings and pile-supported mooring 
dolphins, and demolition of existing facilities. Among other 
activities, construction would include use of impact and vibratory pile 
driving, including installation and removal of steel, concrete, and 
timber piles. Hereafter (unless otherwise specified or detailed) we use 
the term ``pile driving'' to refer to both pile installation and pile 
removal. The use of both vibratory and impact pile driving is expected 
to produce underwater sound at levels that have the potential to result 
in harassment of marine mammals.
    The Navy requests authorization to take individuals of five species 
by Level B harassment. The proposed regulations would be valid for five 
years (2020-2025).

Description of the Specified Activity

Overview

    NWS Seal Beach is the U.S. Pacific Fleet's primary weapons station 
on the West Coast of the United States. As such, NWS Seal Beach has 
three primary missions: Storage of Navy and Marine Corps ammunition, 
missile systems maintenance, and loading and unloading of Navy warships 
and larger Coast Guard vessels. The existing wharf at NWS Seal Beach is 
past its design life--over 65 years old--and was constructed prior to 
the introduction of modern seismic codes. Seismic design deficiencies 
are of significant concern due to the proximity to active faults and 
high liquefaction potential of underlying soils. The current condition 
and configuration of the existing pier and turning basin limits the 
size and number of ships that can be loaded and unloaded with 
ammunition at the same time and presents safety and security concerns 
due to the proximity of naval munitions operations to civilian small 
boat traffic and the Pacific Coast Highway. Therefore, the proposed 
construction activities are necessary to sustain and enhance mission 
capability by eliminating deficiencies associated with the condition, 
configuration, and capacity of the existing pier and turning basin.
    In-water pile driving work is expected to require approximately 
three years, but could occur at any time during the five-year period of 
validity of these proposed regulations. The Navy estimates installing 
approximately 900 primarily concrete piles in total in order to 
construct the new pier. Construction will include use of impact and 
vibratory pile driving. Aspects of construction activities other than 
pile driving are not anticipated to have the potential to result in 
incidental take of marine mammals because they are either above water 
or do not produce levels of underwater sound with likely potential to 
result in marine mammal disturbance.

Dates and Duration

    The proposed regulations would be valid for a period of five years 
(2020-2025). The specified activities may occur at any time during the 
five-year period of validity of the proposed regulations. Pile driving 
activity would be completed over an approximately three-year period 
that is not necessarily consecutive during the five-year period of 
validity of these proposed regulations.
    Pile driving would typically occur only from Monday through Friday 
during typical working hours (i.e., during daylight hours). Estimated 
days of pile driving are based on a conservative production rate of 
approximately three piles per day for installation of 922 piles, i.e., 
308 days. An additional 28 days is assumed for removal of piles. 
Therefore, the estimated number of total pile driving days is 
approximately 336 over the five-year period. These totals include both 
extraction and installation of piles, and represent a conservative 
estimate of pile

[[Page 67406]]

driving days. In a real construction situation, pile driving production 
rates would be maximized when possible and actual daily production 
rates may be higher, resulting in fewer actual pile driving days.

Specified Geographical Region

    Construction activities at NWS Seal Beach will be located within 
Orange County, California, adjacent to the Port of Long Beach. The City 
of Seal Beach is situated between the Cities of Long Beach to the west 
and Huntington Beach to the east (see Figure 1-1 in the Navy's 
application). The specific site of the proposed construction activities 
is within Anaheim Bay, a small harbor that is completely enclosed by 
two jetties and land, aside from a narrow entrance channel (see Figure 
1-2 of the Navy's application). Depth within Anaheim Bay, which is 
maintained through dredging, is approximately 10 meters, and the 
substrate is composed of soft sand and mud alluvial sediments. The 
jetty-enclosed entrance channel extends 1.3 km from the existing pier 
location to the approximately 200-m opening between the jetties.
    The Anaheim Bay entrance is located approximately 5 miles (8 km) 
from the Ports of Los Angeles/Long Beach, which together form one of 
the busiest container ports in the world. Numerous associated ship 
anchorages are arrayed in the vicinity. In 2016 there were 4,277 ship 
port visits with over 8,400 ship transits of these nearshore waters 
(U.S. Army Corps of Engineers, 2017). Associated with these port visits 
and transits, pilot vessels and tug boats are also active in the 
vicinity of the port. Immediately adjacent to the Anaheim Bay entrance 
are entrances to the Huntington Beach and Alamitos/Long Beach marinas, 
which together have more than 2,000 boat slips. Finally, an offshore 
petroleum extraction platform is located approximately 1.4 km offshore 
from the Anaheim Bay entrance. Therefore, it may reasonably be assumed 
that the Anaheim Bay entrance is situated in an environment of 
substantial anthropogenic noise.
    Also of note regarding the environment of Anaheim Bay, the first 
phase of this proposed project, which would be completed prior to 
beginning in-water pile driving work, includes construction of a 
breakwater perpendicular to the Anaheim Bay entrance channel. 
Therefore, acoustic footprints associated with subsequent in-water 
construction activities occurring shoreward of the breakwater would be 
physically limited to Anaheim Bay (see Figures 1-3 and 6-4 of the 
Navy's application).

Detailed Description of Activities

    As described above, the Navy has requested incidental take 
regulations for construction activities associated with development of 
a new ammunition pier at NWS Seal Beach, California. The entire project 
would include potential upgrades to the existing wharf to remain 
operational while the new pier is being built, the construction of a 
breakwater to reduce wave heights at the pier, a causeway, pile-
supported mooring dolphins, a navigation channel for public boat access 
into and out of Huntington Harbor, dredging for the pier and Navy ship 
turning basin, and operational support buildings on and near the pier. 
Aspects of construction activities other than pile driving are not 
anticipated to have the potential to result in incidental take of 
marine mammals because they are either above water or do not produce 
levels of underwater sound with likely potential to result in marine 
mammal disturbance.
    The project would be completed in two different phases. As noted 
above, the first phase would include construction of a breakwater 
perpendicular to the entrance channel. Subsequent elements of the first 
phase would consist of potential upgrades to the existing wharf to 
allow for continued operation while the new pier is under construction, 
dredging of the turning basin and navigation channel for public access, 
removal of existing navigation aids, fill of mitigation areas, partial 
fill of the causeway, creation of a breakwater and jetties for the 
navigation channel for public access, relocation of barge mooring 
buoys, installation of a new floating security barrier, placement of 
new Navy navigation buoys, and implementation of an indicator pile 
program to determine feasibility of concrete piles. Partial 
construction of the new ammunition pier with concrete pile supports may 
begin during the first phase. The second phase of the project would 
consist of fill to expand the east mole for the truck turnaround, 
completion of causeway fill, installation of remaining pier structural 
and support piles, construction of the new pier and fender system, 
construction of waterfront facilities, installation of utilities, and 
demolition of the wharf primary fendering system. (For full details of 
the project, please see the Navy's application, including the schematic 
diagram provided as Figure 1-2.)
    In-water pile driving activities with the potential to cause take 
of marine mammals include removal of existing navigation piles, 
installation of mooring anchors, and installation of piles required for 
the new ammunition pier. Only pile extraction and installation using 
vibratory and impact pile drivers is expected to have the potential to 
result in incidental take of marine mammals. Therefore, only vibratory 
and impact pile driving are carried forward for further analysis.
    Vibratory hammers, which can be used to either install or extract a 
pile, contain a system of counter-rotating eccentric weights powered by 
hydraulic motors, and are designed in such a way that horizontal 
vibrations cancel out, while vertical vibrations are transmitted into 
the pile. The pile driving machine is lifted and positioned over the 
pile by means of an excavator or crane, and is fastened to the pile by 
a clamp and/or bolts. The vibrations produced cause liquefaction of the 
substrate surrounding the pile, enabling the pile to be extracted or 
driven into the ground using the weight of the pile plus the hammer. 
Impact hammers use a rising and falling piston to repeatedly strike a 
pile and drive it into the ground. Impact or vibratory pile driving 
could occur on any day, but would not occur simultaneously.
    Please see Table 1-1 of the Navy's application for a summary of 
piles to be installed and/or removed. The navigation piles that 
currently guide public vessel traffic, consisting of two timber pile 
clusters (dolphins) of approximately 8 to 10 piles each plus three 
additional single steel pipe piles, would be removed. All piles are 
approximately 24-in (61-cm) diameter. Timber piles are likely to be 
removed by cutting at the mudline, while the three steel piles would be 
extracted using the vibratory driver. However, it is possible that some 
timber piles may need to be removed using vibratory extraction. 
Therefore, we assume for purposes of analysis that all piles will be 
removed using vibratory extraction.
    The planned indicator pile program would involve impact driving 17 
24-in octagonal concrete piles in order to verify the driving 
conditions and establish the final driving lengths prior to fabrication 
of the final production piles that would be used to construct the new 
pier.
    The new pier itself would be pile-supported with a total of 
approximately 900 piles (concrete and concrete-filled fiberglass) of 
various sizes connected to a cast[hyphen]in[hyphen]place concrete deck 
and beams. The majority of these production piles are expected to be 
jetted to within 1.5-3 m of tip elevation and then completed via impact 
driving. Piles are expected to largely be 24-in octagonal or square.

[[Page 67407]]

    There will be a total of five new moorings installed, with two of 
those moorings outside of the new breakwater. Use of a vibratory hammer 
is required to install ``plate anchors'' that provide permanent secure 
holdings for planned mooring buoys. Plate anchors consist of a steel 
plate that is driven to project depth (9-12 m) beneath the seafloor. 
The anchor is driven by use of a 12-in (30-cm) steel beam called a 
``follower.'' The follower is slotted on the bottom, fits into the 
plate anchor, and together the assembly consisting of the plate anchor 
and follower are driven into the substrate. Once the assembly has been 
driven to the required depth using a combination of impact and 
vibratory driving, the follower is removed using vibratory extraction, 
leaving the plate anchor at the required depth. First, the plate anchor 
is driven with a vibratory hammer to within several feet of final depth 
(maximum driving time approximately 45 minutes). An impact hammer is 
then used to drive the plate anchor to final elevation (potentially 
requiring up to an additional 45 minutes). Finally, the follower is 
extracted using a vibratory hammer (up to a maximum of 30 minutes).
    We assume that potential impacts of the specified activity on 
marine mammals will be limited to the area within the largely enclosed 
Anaheim Bay. As detailed later in ``Estimated Take,'' impact driving of 
concrete piles is expected to produce relatively small ensonified areas 
that would not extend beyond the entrance to Anaheim Bay under any 
circumstances. However, limited vibratory driving is anticipated. As 
noted above, the first component of project activity will be 
construction of a breakwater parallel to the Anaheim Bay entrance. 
Noise produced through subsequent pile driving activities conducted 
shoreward of the breakwater will therefore be shielded from potentially 
extending beyond the entrance to Anaheim Bay. All pile driving activity 
would be conducted shoreward of the new breakwater, aside from 
installation of the two aforementioned mooring anchors. Regarding this 
component of project activity, associated vibratory driving would 
nominally have a Level B harassment zone that would extend in a narrow 
strip through the jetty opening that forms the entrance to Anaheim Bay. 
However, we have determined that any potential sound that does escape 
the Anaheim Bay entrance should not reasonably be anticipated to result 
in harassment of marine mammals.
    Primarily, and as detailed above, the environment surrounding the 
entrance to Anaheim Bay is extremely busy in terms of commercial 
shipping and other anthropogenic activities. The continuous noise 
produced through use of the vibratory hammer would not likely be 
sufficiently distinguishable from other ongoing noise sources that are 
part of the environmental baseline as to expect marine mammals to 
exhibit responses of a degree sufficient to rise to the level of a 
take. Additional contributing factors include the distance from the 
source to the Anaheim Bay entrance, the limited footprint of 
ensonification that could potentially exit that entrance, and the 
limited duration of activity (i.e., less than two hours per day for two 
days).

Description of Marine Mammals in the Area of the Specified Activity

    We have reviewed the Navy's species descriptions--which summarize 
available information regarding status and trends, distribution and 
habitat preferences, behavior and life history, and auditory 
capabilities of the potentially affected species--for accuracy and 
completeness and refer the reader to Sections 3 and 4 of the Navy's 
application, instead of reprinting the information here. Additional 
information regarding population trends and threats may be found in 
NMFS's Stock Assessment Reports (SAR; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more 
general information about these species (e.g., physical and behavioral 
descriptions) may be found on NMFS's website (www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence in 
the specified geographical region where the Navy proposes to conduct 
the specified activities and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. For taxonomy, we follow Committee on Taxonomy (2019). PBR, 
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, is considered in concert with known sources of ongoing 
anthropogenic mortality (as described in NMFS's SARs).
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. All managed stocks in the specified geographical 
regions are assessed in NMFS's U.S. Pacific SARs. All values presented 
in Table 1 are the most recent available at the time of writing and are 
available in the 2018 SARs.
    Five species (with six managed stocks) are considered to have the 
potential to be affected by Navy activities. A significantly more 
diverse marine mammal fauna occurs in deeper offshore waters of the 
specified geographical region. However, these additional species have 
not been observed in the vicinity of the action area and, for reasons 
described previously, are not anticipated to potentially be affected by 
the specified activity. For additional detail, please see section 3 of 
the Navy's application. We note that one additional species--the 
Pacific white-sided dolphin (Lagenorhynchus obliquidens)--has been 
observed in the vicinity of the entrance to Anaheim Bay. However, 
authorization of take for this species was not requested by the Navy 
due to their seasonal and generally rare occurrence in the area. In 
addition, the sea otter (Enhydra lutris) is found in California coastal 
waters. However, sea otters are managed by the U.S. Fish and Wildlife 
Service and are not considered further in this document.

[[Page 67408]]



                                      Table 1--Marine Mammals Potentially Affected By Navy Construction Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Stock abundance  (CV,
            Common name                  Scientific name              Stock            ESA/MMPA  status;       Nmin, most recent       PBR     Annual  M/
                                                                                      strategic  (Y/N) \1\   abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
       Family Eschrichtiidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale.........................  Eschrichtius robustus.  Eastern North Pacific.  -; N                   26,960 (0.05; 25,849;         801        139
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
         Family Delphinidae
--------------------------------------------------------------------------------------------------------------------------------------------------------
Common bottlenose dolphin..........  Tursiops truncatus      California Coastal....  -; N                   453 (0.06; 346; 2011).        2.7      >=2.0
                                      truncatus.
ENP long-beaked common dolphin.....  Delphinus delphis       California............  -; N                   101,305 (0.49; 68,432;        657     >=35.4
                                      bairdii.                                                               2014).
Common dolphin.....................  D. d. delphis.........  CA/OR/WA..............  -; N                   969,861 (0.17;              8,393       >=40
                                                                                                             839,325; 2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
 Family Otariidae (eared seals and
             sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion................  Zalophus californianus  United States.........  -; N                   257,606 (n/a; 233,515;     14,011      >=321
                                                                                                             2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal........................  Phoca vitulina          California............  -; N                   30,968 (n/a; 27,348;        1,641         43
                                      richardii.                                                             2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is
  coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of pinnipeds,
  abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge of the
  species' (or similar species') life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the minimum
  abundance may represent actual counts of all animals ashore.
\3\ 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
  M/SI values are as presented in the 2018 SARs.

    Marine mammals do not regularly use Anaheim Bay for any purpose, 
and there is no known habitat of any importance (including pinniped 
haul-outs) located within Anaheim Bay. The Navy has conducted a semi-
regular monitoring effort within Anaheim Bay over the past several 
years. This monitoring effort is the primary source of information 
regarding marine mammal occurrence therein. Monthly shore-based 
observations were conducted for marine mammals in Anaheim Bay for 12 
months beginning in August 2016. Monitoring was conducted by two 
observers continuously scanning the bay with both the naked eye and 
handheld binoculars from two fixed positions. The observation positions 
allowed for clear visibility of the entirety of Anaheim Bay. The 
observers covered daylight hours from 7:30 to 4:30 over a one- or two-
day period with the goal to survey a full 8 hours of observations each 
month. A total of approximately 72 observation hours were ultimately 
conducted. This effort and the resulting observations are detailed in a 
Navy report (Bredvik et al., 2017). Subsequently, consultants were 
retained to provide environmental monitoring services during a dredging 
project, including conducting an observational effort for marine 
mammals. This effort included daily monitoring during dredging effort 
from March through June of 2019 (Merkel and Associates, Inc., 2019). 
The observational data cited below include some records of animals 
occurring in waters outside the Anaheim Bay entrance.
    The California sea lion is the most commonly observed marine mammal 
species within Anaheim Bay and the nearby Seal Beach National Wildlife 
Refuge. This species was sighted at least once in Anaheim Bay during 
almost every survey in the 2016-2017 effort, with all sightings of the 
species in water. Subsequent monitoring associated with dredging also 
routinely encountered California sea lions within Anaheim Bay. During 
Navy monitoring, California sea lions were observed on 25 occasions, 
with all but one sighting of a lone individual. The exception was a 
single observation of three sea lions. During dredging monitoring, 
California sea lions were observed on 67 occasions, typically one or 
two individuals per occasion but with a maximum observed group of six. 
Individual sea lions may occasionally haul out on the rock jetties or 
other areas, but have not been observed hauling out frequently and 
there are no known haul-outs or areas of congregation.
    Harbor seals are more rarely observed in Anaheim Bay. During a 
2016-2017 survey effort, individual harbor seals were observed on four 
occasions, and monitoring associated with dredging encountered 
individual harbor seals on three occasions. Harbor seals have rarely 
been observed hauled out, but there are no regular haul-out sites in 
Anaheim Bay.

[[Page 67409]]

    Bottlenose dolphins are generally considered to be the second-most 
commonly observed species in Anaheim Bay, having been sighted several 
times within Anaheim Bay as well as at the Seal Beach National Wildlife 
Refuge. During Navy monitoring, pairs of bottlenose dolphins were 
sighted on four occasions. Bottlenose dolphins were observed during 
dredging monitoring on 17 occasions, with groups ranging from two to 
ten animals.
    There are two stocks of common dolphin present in California 
waters, with the two generally indistinguishable. Therefore, 
observations of common dolphins are not attributed to stock, and we 
propose to authorize take of common dolphins generically. This take is 
analyzed as though it may entirely be attributed to both stocks as a 
worst-case scenario. Common dolphins were frequently observed during 
monitoring effort but more commonly observed in waters of outer Anaheim 
Bay or adjacent to the Anaheim Bay entrance. Navy monitoring reported a 
single occurrence of a pair of common dolphins. However, common 
dolphins were observed on 31 occasions during dredging monitoring, with 
groups ranging from two to nine animals.
    Gray whales migrate along the Pacific coast twice a year between 
October and July and would only potentially be present in the region 
while migrating. Gray whales are not generally expected to occur in 
Anaheim Bay. However, individual gray whales were observed on four 
occasions during dredging monitoring, with one of these sightings 
reported inside Anaheim Bay. As a precaution, the Navy has requested 
authorization of take for this species.

Unusual Mortality Events (UME)

    A UME is defined under the MMPA as ``a stranding that is 
unexpected; involves a significant die-off of any marine mammal 
population; and demands immediate response.'' Currently ongoing 
investigations along the west coast involving species at issue in these 
proposed regulations include gray whales and California sea lions.
    Since January 1, 2019, elevated gray whale strandings have occurred 
along the west coast of North America from Mexico through Alaska. As of 
September 30, 2019, 212 gray whale strandings have been confirmed, with 
121 of these in the United States and 34 in California. Several dead 
whales have been emaciated with moderate to heavy whale lice (cyamid) 
loads. Necropsies have been conducted on a subset of whales with 
additional findings of vessel strike in three whales and entanglement 
in one whale. In Mexico, 50-55 percent of the free-ranging whales 
observed in the lagoons this winter were reported as ``skinny'' 
compared to the annual average of 10-12 percent ``skinny'' whales 
normally seen. Necropsy findings of emaciation are not consistent 
across all of the whales examined, so more research is needed. Please 
see www.fisheries.noaa.gov/national/marine-life-distress/2019-gray-whale-unusual-mortality-event-along-west-coast for more information.
    Beginning in January 2013 and continuing through 2016, elevated 
strandings of California sea lion pups were observed in southern 
California, with live sea lion strandings nearly three times higher 
than the historical average in 2015. Findings to date indicate that a 
change in the availability of sea lion prey, especially sardines, a 
high value food source for nursing mothers, is a likely contributor to 
the large number of strandings. Sardine spawning grounds shifted 
further offshore in 2012 and 2013, and while other prey were available 
(market squid and rockfish), these may not have provided adequate 
nutrition in the milk of sea lion mothers supporting pups, or for 
newly-weaned pups foraging on their own. This UME remains under 
investigation. Please see www.fisheries.noaa.gov/national/marine-life-distress/2013-2017-california-sea-lion-unusual-mortality-event-california for more information.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). NMFS (2018) describes generalized 
hearing ranges for these marine mammal hearing groups. Generalized 
hearing ranges were chosen based on the approximately 65 dB threshold 
from the normalized composite audiograms, with the exception for lower 
limits for low-frequency cetaceans where the lower bound was deemed to 
be biologically implausible and the lower bound from Southall et al. 
(2007) retained. The functional groups and the associated frequencies 
are indicated below (note that these frequency ranges correspond to the 
range for the composite group, with the entire range not necessarily 
reflecting the capabilities of every species within that group):
     Low-frequency cetaceans (mysticetes): Generalized hearing 
is estimated to occur between approximately 7 hertz (Hz) and 35 
kilohertz (kHz);
     Mid-frequency cetaceans (larger toothed whales, beaked 
whales, and most delphinids): Generalized hearing is estimated to occur 
between approximately 150 Hz and 160 kHz;
     High-frequency cetaceans (porpoises, river dolphins, and 
members of the genera Kogia and Cephalorhynchus; including two members 
of the genus Lagenorhynchus, on the basis of recent echolocation data 
and genetic data): Generalized hearing is estimated to occur between 
approximately 275 Hz and 160 kHz;
     Pinnipeds in water; Phocidae (true seals): Functional 
hearing is estimated to occur between approximately 50 Hz to 86 kHz; 
and
     Pinnipeds in water; Otariidae (eared seals): Functional 
hearing is estimated to occur between 60 Hz and 39 kHz for Otariidae.
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Five marine mammal species (three cetacean and two pinniped (one 
otariid and one phocid) species) have the potential to co-occur with 
Navy construction activities. Please refer to Table 1. Of the three 
cetacean species that may be present, one is classified as a low-
frequency cetacean (gray whale) and two are classified as mid-frequency 
cetaceans (dolphins).

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

    Sections 6 and 9 of the Navy's application include a comprehensive 
summary and discussion of the ways that components of the specified 
activity may impact marine mammals and their habitat, including 
specific discussion of potential effects to marine mammals from noise 
produced through pile driving. We have reviewed the

[[Page 67410]]

Navy's discussion of potential effects for accuracy and completeness in 
its application and refer to that information rather than repeating it 
here. Alternatively, NMFS has included a lengthy discussion of the 
potential effects of noise on marine mammals, including specifically 
from pile driving, in numerous other Federal Register notices. Please 
see, e.g., 83 FR 9366 (March 5, 2018); 84 FR 54867 (October 11, 2019); 
82 FR 36360 (August 4, 2017), or view documents available online at 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.
    The ``Estimated Take'' section later in this document includes a 
quantitative analysis of the number of individuals that are expected to 
be taken by the specified activity. The ``Negligible Impact Analysis 
and Determination'' section includes an analysis of how these 
activities will impact marine mammals and considers the content of this 
section, the ``Estimated Take'' section, and the ``Proposed 
Mitigation'' section, to draw conclusions regarding the likely impacts 
of these activities on the reproductive success or survivorship of 
individuals and from that on the affected marine mammal populations.

Description of Sound Sources

    This section contains a brief technical background on sound, on the 
characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to a discussion of the potential effects of the specified 
activity on marine mammals found later in this document. For general 
information on sound and its interaction with the marine environment, 
please see, e.g., Au and Hastings (2008); Richardson et al. (1995); 
Urick (1983).
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz or cycles per second. Wavelength is the distance 
between two peaks or corresponding points of a sound wave (length of 
one cycle). Higher frequency sounds have shorter wavelengths than lower 
frequency sounds, and typically attenuate (decrease) more rapidly, 
except in certain cases in shallower water. Amplitude is the height of 
the sound pressure wave or the ``loudness'' of a sound and is typically 
described using the relative unit of the decibel (dB). A sound pressure 
level (SPL) in dB is described as the ratio between a measured pressure 
and a reference pressure (for underwater sound, this is 1 microPascal 
([mu]Pa)), and is a logarithmic unit that accounts for large variations 
in amplitude. Therefore, a relatively small change in dB corresponds to 
large changes in sound pressure. The source level (SL) represents the 
SPL referenced at a distance of 1 m from the source (referenced to 1 
[mu]Pa), while the received level is the SPL at the listener's position 
(referenced to 1 [mu]Pa).
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory cues, may be 
better expressed through averaged units than by peak pressures.
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy in a stated frequency band over a stated 
time interval or event and considers both intensity and duration of 
exposure. The per-pulse SEL is calculated over the time window 
containing the entire pulse (i.e., 100 percent of the acoustic energy). 
SEL is a cumulative metric; it can be accumulated over a single pulse, 
or calculated over periods containing multiple pulses. Cumulative SEL 
represents the total energy accumulated by a receiver over a defined 
time window or during an event. Peak sound pressure (also referred to 
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous 
sound pressure measurable in the water at a specified distance from the 
source and is represented in the same units as the rms sound pressure.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner similar to ripples on the surface of a pond and may be either 
directed in a beam or beams or may radiate in all directions 
(omnidirectional sources), as is the case for sound produced by the 
pile driving activity considered here. The compressions and 
decompressions associated with sound waves are detected as changes in 
pressure by aquatic life and man-made sound receptors such as 
hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels, as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz 
and, if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but also on the ability of 
sound to propagate through the environment. In turn, sound propagation 
is dependent on the spatially and temporally varying properties of the 
water column and sea floor, and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a given frequency and location can 
vary by 10-20 decibels (dB) from day to day (Richardson et al., 1995). 
The result is

[[Page 67411]]

that, depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.
    Underwater ambient sound in the vicinity of Anaheim Bay is 
comprised of sounds produced by a number of natural and anthropogenic 
sources and varies both geographically and temporally. Human-generated 
sound is a significant contributor to the ambient acoustic environment 
at the installations considered here. The underwater acoustic 
environment will vary depending on the amount of anthropogenic 
activity, weather conditions, and tidal currents but, given the high 
anthropogenic use of the area, anthropogenic noise is likely to 
dominate the ambient soundscape. Details of source types are described 
in the following text.
    Sounds are often considered to fall into one of two general types: 
pulsed and non-pulsed (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see 
Southall et al. (2007) for an in-depth discussion of these concepts. 
The distinction between these two sound types is not always obvious, as 
certain signals share properties of both pulsed and non-pulsed sounds. 
A signal near a source could be categorized as a pulse, but due to 
propagation effects as it moves farther from the source, the signal 
duration becomes longer (e.g., Greene and Richardson, 1988).
    Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems. The 
duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment.
    The impulsive sound generated by impact hammers is characterized by 
rapid rise times and high peak levels. Vibratory hammers produce non-
impulsive, continuous noise at levels significantly lower than those 
produced by impact hammers. Rise time is slower, reducing the 
probability and severity of injury, and sound energy is distributed 
over a greater amount of time.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization, which will inform both NMFS's consideration 
of whether the number of takes is ``small'' and the negligible impact 
determination.
    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).
    Take of marine mammals incidental to Navy construction activities 
could occur as a result of Level B harassment only. Below we describe 
how the potential take is estimated.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to exhibit behavioral disruptions (equated 
to Level B harassment) or to incur PTS of some degree (equated to Level 
A harassment).
    Level B Harassment--Although available data are consistent with the 
basic concept that louder sounds evoke more significant behavioral 
responses than softer sounds, defining sound levels that disrupt 
behavioral patterns is difficult because responses depend on the 
context in which the animal receives the sound, including an animal's 
behavioral mode when it hears sounds (e.g., feeding, resting, or 
migrating), prior experience, and biological factors (e.g., age and 
sex). Some species are known to be more highly sensitive to certain 
anthropogenic sounds than other species. Other contextual factors, such 
as signal characteristics, distance from the source, and signal to 
noise ratio, may also help determine response to a given received level 
of sound. Therefore, levels at which responses occur are not 
necessarily consistent and can be difficult to predict (Southall et 
al., 2007; Ellison et al., 2012; Bain and Williams, 2006).
    However, based on the practical need to use a relatively simple 
threshold based on available information that is both predictable and 
measurable for most activities, NMFS has historically used a 
generalized acoustic threshold based on received level to estimate the 
onset of Level B harassment. These thresholds are 160 dB rms 
(intermittent sources) and 120 dB rms (continuous sources).
    Level A Harassment--NMFS's ``Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing'' (NMFS, 2018) 
identifies dual criteria to assess the potential for auditory injury 
(Level A harassment) to occur for different marine mammal groups (based 
on hearing sensitivity) as a result of exposure to noise. The technical 
guidance identifies the received levels, or thresholds, above which 
individual marine mammals are predicted to experience changes in their 
hearing sensitivity for all underwater anthropogenic sound sources, and 
reflects the best available science on the potential for noise to 
affect auditory sensitivity by:
     Dividing sound sources into two groups (i.e., impulsive 
and non-impulsive) based on their potential to affect hearing 
sensitivity;
     Choosing metrics that best address the impacts of noise on 
hearing sensitivity, i.e., peak sound pressure level (peak SPL) 
(reflects the physical properties of impulsive sound sources to affect 
hearing sensitivity) and cumulative sound exposure level (cSEL) 
(accounts for not only level of exposure but also duration of 
exposure); and
     Dividing marine mammals into hearing groups and developing 
auditory weighting functions based on the science supporting that not 
all marine mammals hear and use sound in the same manner.
    The premise of the dual criteria approach is that, while there is 
no definitive answer to the question of which acoustic metric is most 
appropriate for assessing the potential for injury, both the received 
level and

[[Page 67412]]

duration of received signals are important to an understanding of the 
potential for auditory injury. Therefore, peak SPL is used to define a 
pressure criterion above which auditory injury is predicted to occur, 
regardless of exposure duration (i.e., any single exposure at or above 
this level is considered to cause auditory injury), and cSEL is used to 
account for the total energy received over the duration of sound 
exposure (i.e., both received level and duration of exposure) (Southall 
et al., 2007, 2019; NMFS, 2018). As a general principle, whichever 
criterion is exceeded first (i.e., results in the largest isopleth) 
would be used as the effective injury criterion (i.e., the more 
precautionary of the criteria). Note that cSEL acoustic threshold 
levels incorporate marine mammal auditory weighting functions, while 
peak pressure thresholds do not (i.e., flat or unweighted). Weighting 
functions for each hearing group (e.g., low-, mid-, and high-frequency 
cetaceans) are described in NMFS (2018).
    NMFS (2018) recommends 24 hours as a maximum accumulation period 
relative to cSEL thresholds. These thresholds were developed by 
compiling and synthesizing the best available science, and are provided 
in Table 2 below. The references, analysis, and methodology used in the 
development of the thresholds are described in NMFS (2018), which is 
available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                                 Table 2--Exposure Criteria for Auditory Injury
----------------------------------------------------------------------------------------------------------------
                                                                                    Cumulative sound  exposure
                                                                                             level \2\
                          Hearing group                           Peak  pressure -------------------------------
                                                                     \1\ (dB)                      Non-impulsive
                                                                                  Impulsive (dB)       (dB)
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans.........................................             219             183             199
Mid-frequency cetaceans.........................................             230             185             198
Phocid pinnipeds................................................             218             185             201
Otariid pinnipeds...............................................             232             203             219
----------------------------------------------------------------------------------------------------------------
\1\ Referenced to 1 [mu]Pa; unweighted within generalized hearing range.
\2\ Referenced to 1 [mu]Pa\2\-s; weighted according to appropriate auditory weighting function.

Zones of Ensonification

    Sound Propagation--Transmission loss (TL) is the decrease in 
acoustic intensity as an acoustic pressure wave propagates out from a 
source. TL parameters vary with frequency, temperature, sea conditions, 
current, source and receiver depth, water depth, water chemistry, and 
bottom composition and topography. The general formula for underwater 
TL is:

Where:

TL = B * log10(R1/R2),
B = transmission loss coefficient (assumed to be 15)
R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20*log(range)). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10*log(range)). As is 
common practice in coastal waters, here we assume practical spreading 
loss (4.5 dB reduction in sound level for each doubling of distance). 
Practical spreading is a compromise that is often used under conditions 
where water depth increases as the receiver moves away from the 
shoreline, resulting in an expected propagation environment that would 
lie between spherical and cylindrical spreading loss conditions.
    In this analysis, site-specific propagation modeling was performed 
on behalf of the Navy by Dr. Peter Dahl (see ``Modeling of Sound 
Propagation from Pile Driving Marine Construction at Seal Beach,'' 
available online at www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-ammunition-pier-and-turning-basin-naval). This more complex modeling approach accounts for factors such 
as depth, substrate, and frequency-dependency. This modeling was 
performed for propagation associated with impact and vibratory driving 
of 24-in concrete piles and 12-in steel beams, and for vibratory 
driving of 30-in steel piles (as proxy for removal of 24-in steel 
piles). Propagation loss associated with vibratory removal of 24-in 
timber piles was represented through practical spreading.
    The above-referenced Dahl propagation analysis is provided for a 
more realistic understanding of actual ensonification effects at 
multiple specific locations within Anaheim Bay due to impact driving of 
concrete piles, impact and vibratory driving of steel beams, and 
vibratory driving of steel pipe piles. These actual zones are depicted 
in Figures 6-4 through 6-7 of the Navy's application. Notably, this 
analysis indicates that, for vibratory installation of piles seaward of 
the intended breakwater, maximum Level B harassment isopleth distances 
would be less than 1.5 km (before taking into account the 
aforementioned noise environment outside of Anaheim Bay. However, these 
Level B harassment areas do not factor into the take estimation 
process, as a density-based method is not used. We also note that the 
Dahl analysis indicates that all Level A harassment isopleth distances 
are likely less than 10 meters. However, we take a more precautionary 
approach to estimation of these distances through use of the NMFS User 
Spreadsheet, as described in greater detail in the following. Isopleth 
distances given in Table 5 are estimated using the spreadsheet (Level A 
harassment) or are simply calculated assuming practical spreading 
(Level B harassment).
    Sound Source Levels--The intensity of pile driving sounds is 
greatly influenced by factors such as the type of piles, hammers, and 
the physical environment in which the activity takes place. Numerous 
studies have examined sound pressure levels (SPLs) recorded from 
underwater pile driving projects in

[[Page 67413]]

California. Proxy values given in Table 3 are those used in the Dahl 
propagation analysis discussed above. The values for 24-in concrete 
piles are summary values provided in Table 2-2 of Caltrans (2015). 
Proxy values for impact driving of 12-in steel beams are from 
measurements of the same piles taken at Elkhorn Slough, near Moss 
Landing, CA, and are found in Figure I.4-8 of Caltrans (2015). The 
values for vibratory driving of 30-in steel piles and 12-in steel beams 
are from measurements conducted by the U.S. Navy during construction of 
a pier in San Diego Bay. The Dahl analysis did not address vibratory 
driving of timber piles, the Caltrans compendium does not provide 
values for vibratory removal of timber piles, and few data are 
available for this activity. We use acoustic monitoring data from 
construction activity in Elliott Bay, Washington as a proxy (Greenbusch 
Group, 2018). This project included vibratory removal of 14-in timber 
piles, and reported source measurements at different distances for 63 
individual piles. The median value as normalized to 10 m distance is 
given in Table 3. NMFS views this as the best available data for 
vibratory removal of timber piles.

                                         Table 3--Assumed Source Levels
----------------------------------------------------------------------------------------------------------------
                                                                                    SPL  (peak)
            Method                    Type          Size  (in)    SPL  (rms) \1\        \1\           SEL \1\
----------------------------------------------------------------------------------------------------------------
Impact........................  Concrete........              24             175             193             160
                                Steel I-beam....              12             181             194             171
Vibratory.....................  Timber..........              24             152             n/a             n/a
                                Steel I-beam....              12             170             n/a             n/a
                                Steel pipe......              24             170             n/a             n/a
----------------------------------------------------------------------------------------------------------------
\1\ Source levels presented at standard distance of 10 m from the driven pile. Peak source levels are not
  typically evaluated for vibratory pile driving, as they are lower than the relevant thresholds for auditory
  injury. SEL source levels for vibratory driving are equivalent to SPL (rms) source levels.

    Level A Harassment--In order to assess the potential for injury on 
the basis of the cumulative SEL metric, one must estimate the total 
strikes (impact driving) or the total driving duration (vibratory 
driving) over which energy is assumed to accumulate. Table 4 presents 
an estimate of average strikes per day; average strikes per day and 
average daily duration values are used in the exposure analyses. Values 
given in Table 4 are engineering assumptions provided by the Navy.

                              Table 4--Estimated Daily Strikes and Driving Duration
----------------------------------------------------------------------------------------------------------------
                                                                                        Estimated duration
                                                                                 -------------------------------
                      Pile type and method                         Installation                    Average daily
                                                                   rate per day       Average        duration
                                                                                  strikes/pile         (min)
----------------------------------------------------------------------------------------------------------------
12-in steel; impact.............................................               1             390             n/a
24-in concrete; impact..........................................               3             667             n/a
12-in steel; vibratory..........................................               1             n/a              75
24-in timber; vibratory.........................................               1             n/a              60
24-in steel; vibratory..........................................               1             n/a              60
----------------------------------------------------------------------------------------------------------------

    Delineation of potential injury zones on the basis of the peak 
pressure metric was performed using the SPL(peak) values provided in 
Table 3 above. As described previously, source levels for peak pressure 
are unweighted within the generalized hearing range, while SEL source 
levels are weighted according to the appropriate auditory weighting 
function. Delineation of potential injury zones on the basis of the 
cumulative SEL metric for impact and vibratory driving were performed 
using single-frequency weighting factor adjustments (WFA) of 2.0 and 
2.5 kHz, respectively, as recommended by the NMFS User Spreadsheet, 
described in NMFS's Technical Guidance (NMFS, 2018). In order to assist 
in simple application of the auditory weighting functions, NMFS 
recommends WFAs for use with specific types of activities that produce 
broadband or narrowband noise. WFAs consider marine mammal auditory 
weighting functions by focusing on a single frequency. This will 
typically result in higher predicted exposures for broadband sounds, 
because only one frequency is being considered, compared to exposures 
associated with the ability to fully incorporate the Technical 
Guidance's weighting functions. Note that, for use in delineating 
assumed Level A harassment zones through use of the User Spreadsheet, 
practical spreading was assumed.
    In consideration of the assumptions relating to sound source 
levels, propagation, and pile driving rates, notional radial distances 
to relevant thresholds were calculated (Table 5). However, these 
distances are sometimes constrained by topography. Actual notional 
ensonified zones, calculated using site-specific propagation modeling 
(Dahl, 2018) are shown in Figures 6-4 to 6-7 of the Navy's application. 
For production piles, these zones are modeled on the basis of a 
centrally-located, notional pile. Note that these figures assume the 
presence of the breakwater that will be constructed prior to pile 
driving activity.

[[Page 67414]]



                                          Table 5--Calculated Distances to Level A and Level B Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            PW                OW                LF                MF
                  Pile                             Driver           ------------------------------------------------------------------------ Level B \1\
                                                                        pk      cSEL      pk      cSEL      pk      cSEL      pk      cSEL
--------------------------------------------------------------------------------------------------------------------------------------------------------
24-in concrete.........................  Impact....................      n/a       25      n/a      <10      n/a       46      n/a      <10          100
12-in steel............................  Impact....................      n/a       45      n/a      <10      n/a       85      n/a      <10          251
24-in steel............................  Vibratory.................      n/a       17      n/a      <10      n/a       27      n/a      <10       21,544
12-in steel............................  Vibratory.................      n/a       19      n/a      <10      n/a       32      n/a      <10       21,544
24-in timber...........................  Vibratory.................      n/a      <10      n/a      <10      n/a      <10      n/a      <10        1,359
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: PW=Phocid; OW=Otariid; LF=low frequency; MF=mid frequency; HF=high frequency; pk=peak pressure; cSEL=cumulative SEL.
\1\ Calculated free-field values only; all zones are assumed restricted to Anaheim Bay.

Exposure Estimates

    Available information regarding marine mammal occurrence at NWS 
Seal Beach was summarized previously in ``Description of Marine Mammals 
in the Area of the Specified Activity.'' Given the small area of 
Anaheim Bay, infrequent occurrence of marine mammals, and limited 
observational data available, we do not use these data to support 
calculation of density values, but rather use the maximum observed 
group size in conjunction with the expected days of pile driving to 
develop take estimates. The Navy assumes a total of 336 days of pile 
driving activity over the five-year period of effectiveness of this 
proposed rule. However, the total days are assumed to occur over a 
three-year period during the five years. Therefore, the Navy assumes 
112 pile driving days per year for three years.
    To quantitatively assess exposure of marine mammals to noise from 
pile driving activities, the Navy used two methods. For pinniped 
species, which are assumed to have the potential to occur on any day of 
pile driving, the maximum group size is multiplied by the total annual 
pile driving days to generate the annual take estimate. For cetacean 
species, whose occurrence is assumed to be more sporadic in nature, the 
assumed group size is multiplied by an assumed proportion of total 
annual pile driving days. The assumed proportion reasonably reflects 
the observational data available for Anaheim Bay. This calculation is 
performed as: 112 annual pile driving days/30 days per month times x 
assumed monthly days present. Given the small calculated Level A 
harassment zone sizes, we assume that no Level A harassment is likely 
to occur, for any species. The Navy's proposed mitigation measures 
further reduce the low likelihood that any incidents of Level A 
harassment would occur, and none are proposed for authorization.
    California Sea Lion--California sea lions are regularly observed, 
typically as individuals or in pairs. However, a maximum group of six 
sea lions was observed in Anaheim Bay. Therefore, the Navy estimates 
take as six sea lions per day for 112 days annually, yielding an 
estimate of 672 incidents of take annually and 2,016 incidents over the 
duration of the rule.
    Harbor Seal--Individual harbor seals are infrequently observed in 
Anaheim Bay. However, as a relatively common coastal pinniped, the Navy 
assumes that one harbor seal could be present on each day of pile 
driving. Therefore, the Navy estimates take as one seal per day for 112 
days annually, yielding an estimate of 112 incidents of take annually 
and 336 incidents over the duration of the rule.
    Bottlenose Dolphin--The Navy assumes that groups of up to ten 
bottlenose dolphins may occur in Anaheim Bay on six occasions per 
month, yielding an annual estimate of 220 incidents of take, and 660 
over the duration of the rule. These dolphins are assumed to be from 
the California coastal stock of bottlenose dolphin.
    Common Dolphin--The Navy assumes that groups of up to nine common 
dolphins may occur in Anaheim Bay on ten occasions per month, yielding 
an annual estimate of 336 incidents of take, and 1,008 over the 
duration of the rule. These dolphins could be from either the 
California/Oregon/Washington stock of common dolphin or from a 
subspecies stock, the eastern North Pacific long-beaked common dolphin.
    Gray Whale--Individual gray whales have rarely been observed in the 
vicinity of the entrance to Anaheim Bay. The Navy assumes that a single 
gray whale may occur in Anaheim Bay on two occasions per month, 
yielding an annual estimate of seven incidents of take, and 21 over the 
duration of the rule.
    The total proposed take authorization for all species is summarized 
in Table 6 below. No authorization of take by Level A harassment is 
proposed for authorization.

                           Table 6--Proposed Take Authorization by Level B Harassment
----------------------------------------------------------------------------------------------------------------
                             Species                                  Annual           Total        Percent \1\
----------------------------------------------------------------------------------------------------------------
California sea lion.............................................             672           2,016             0.3
Harbor seal.....................................................             112             336             0.4
Bottlenose dolphin..............................................             220             660            48.6
Common dolphin..................................................             336           1,008        <0.1/0.3
Gray whale......................................................               7              21            <0.1
----------------------------------------------------------------------------------------------------------------
\1\ Reflects annual take number.

Proposed Mitigation

    Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the 
permissible methods of taking pursuant to such activity, and other 
means of effecting the least practicable adverse 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 (``least practicable adverse impact''). NMFS does not 
have a regulatory definition for ``least practicable adverse impact.'' 
However, NMFS's implementing regulations require applicants for 
incidental take authorizations to include information about the 
availability and feasibility (economic and technological) of

[[Page 67415]]

equipment, methods, and manner of conducting such activity or other 
means of effecting the least practicable adverse impact upon the 
affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, we carefully consider two primary factors:
    (1) The manner in which, and the degree to which, implementation of 
the measure(s) is expected to reduce impacts to marine mammal species 
or stocks, their habitat, and their availability for subsistence uses. 
This analysis will consider such things as the nature of the potential 
adverse impact (such as likelihood, scope, and range), the likelihood 
that the measure will be effective if implemented, and the likelihood 
of successful implementation.
    (2) The practicability of the measure for applicant implementation. 
Practicability of implementation may consider such things as cost, 
impact on operations, personnel safety, and practicality of 
implementation.
    The mitigation strategies described below largely follow those 
required and successfully implemented under previous incidental take 
authorizations issued in association with similar construction 
activities. Estimated zones of influence (ZOI; see ``Estimated Take'') 
were used to develop mitigation measures for pile driving activities. 
Background discussion related to underwater sound concepts and 
terminology is provided in the section on ``Description of Sound 
Sources,'' earlier in this preamble. The ZOIs were used to inform 
mitigation zones that would be established to prevent Level A 
harassment and to monitor Level B harassment.
    In addition to the specific measures described later in this 
section, the Navy would conduct briefings for construction supervisors 
and crews, the 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, 
the marine mammal monitoring protocol, and operational procedures.

Timing

    As described previously, the Navy would conduct construction 
activities only during daylight hours. This is a voluntary description 
by the Navy of expected construction scheduling that we do not treat as 
an absolute requirement. Therefore, this commitment is not considered 
in making our preliminary determinations and is not included in the 
proposed regulatory text found at the end of this preamble.

Monitoring and Shutdown for Pile Driving

    The following measures would apply to the Navy's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--The purpose of a shutdown zone is to define an area 
within which shutdown of activity would occur upon sighting of a marine 
mammal (or in anticipation of an animal entering the defined area), 
thus preventing some undesirable outcome, such as auditory injury or 
behavioral disturbance of sensitive species (serious injury or death 
are unlikely outcomes even in the absence of mitigation measures). For 
all pile driving activities, the Navy would establish a minimum 
shutdown zone with a radial distance of 10 m. This minimum zone is 
intended to prevent the already unlikely possibility of physical 
interaction with construction equipment and to establish a 
precautionary minimum zone with regard to acoustic effects.
    In most cases, the minimum shutdown zone of 10 m is expected to 
contain the area in which auditory injury could occur. In all 
circumstances where the predicted Level A harassment zone exceeds the 
minimum zone, the Navy proposes to implement a shutdown zone equal to 
the predicted Level A harassment zone (see Table 5). In all cases, 
predicted injury zones are calculated on the basis of cumulative sound 
exposure, as peak pressure source levels produce smaller predicted 
zones.
    Injury zone predictions generated using the optional user 
spreadsheet are precautionary due to a number of simplifying 
assumptions. For example, the spreadsheet tool assumes that marine 
mammals remain stationary during the activity and does not account for 
potential recovery between intermittent sounds. In addition, the tool 
incorporates the acoustic guidance's weighting functions through use of 
a single-frequency weighting factor adjustment intended to represent 
the signal's 95 percent frequency contour percentile (i.e., upper 
frequency below which 95 percent of total cumulative energy is 
contained; Charif et al., 2010). This will typically result in higher 
predicted exposures for broadband sounds, because only one frequency is 
being considered, compared to exposures associated with the ability to 
fully incorporate the guidance's weighting functions.
    Disturbance Zone--Disturbance zones are the areas in which sound 
pressure levels equal or exceed 160 and 120 dB rms (for impact and 
vibratory pile driving, respectively). Regarding vibratory driving 
occurring outside the breakwater, we assume that the disturbance zone 
is truncated at the entrance to Anaheim Bay. 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. 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 5.
    In order to document observed incidents of harassment, monitors 
record all marine mammal observations, regardless of location. The 
observer's location and the location of the pile being driven are 
known, and the location of the animal may be estimated as a distance 
from the observer and 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 data, and a 
precise accounting of observed incidents of harassment created.
    Monitoring Protocols--Monitoring would be conducted before, during, 
and after pile driving activities. In addition, observers will record 
all incidents of marine mammal occurrence, regardless of distance from 
activity, and monitors will 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 would be halted. Monitoring will take place from 30 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.

[[Page 67416]]

    The following additional measures apply to visual monitoring:
    (1) Monitoring will be conducted by qualified, trained protected 
species observers, who will be placed at the best vantage point(s) 
practicable (i.e., construction barges, on shore, or any other suitable 
location) to monitor for marine mammals and implement shutdown/delay 
procedures when applicable by calling for the shutdown to the hammer 
operator. Observers would have no other construction-related tasks 
while conducting monitoring. Observers should have 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;
     Ability to conduct field observations and collect data 
according to assigned protocols;
     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 document 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 of marine mammals from 
construction noise 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.
    Observer teams employed by the Navy in satisfaction of the 
mitigation and monitoring requirements described herein must meet the 
following additional requirements:
     Independent observers (i.e., not construction personnel) 
are required.
     At least one observer must have prior experience working 
as an observer.
     Other observers may substitute education (degree in 
biological science or related field) or training for experience.
     Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer.
     We will require submission and approval of observer CVs.
    (2) Prior to the start of pile driving activity, the shutdown zone 
will be monitored for 30 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 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 would 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 fifteen minutes have 
passed without re-detection of the animal. Monitoring will be conducted 
throughout the time required to drive a pile and for thirty minutes 
following the conclusion of pile driving.

Soft Start

    The use of a soft start procedure is believed to provide additional 
protection to marine mammals by warning marine mammals or providing 
them with 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.'' The Navy will utilize soft start 
techniques for impact pile driving. We require an initial set of three 
strikes from the impact hammer at reduced energy, followed by a 30-
second waiting period, then two subsequent 3-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 
thirty minutes or longer; the requirement to implement soft start for 
impact driving is independent of whether vibratory driving has occurred 
within the prior 30 minutes.
    We have carefully evaluated the Navy's proposed mitigation measures 
and considered a range of other measures in the context of ensuring 
that we prescribed the means of effecting the least practicable adverse 
impact on the affected marine mammal species and stocks and their 
habitat. Based on our evaluation of these measures, we have 
preliminarily determined that the proposed mitigation measures provide 
the means of effecting the least practicable adverse impact on marine 
mammal species or stocks and their habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for subsistence uses.

Proposed Monitoring and Reporting

    In order to issue an LOA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of the authorized taking. NMFS's MMPA 
implementing regulations further describe the information that an 
applicant should provide when requesting an authorization (50 CFR 
216.104(a)(13)), including the means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and the level of taking or impacts on populations of marine 
mammals.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of significant interactions with marine mammal 
species in action area (e.g., animals that came close to the vessel, 
contacted the gear, or are otherwise rare or displaying unusual 
behavior).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.

[[Page 67417]]

     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or important physical components of marine 
mammal habitat).
     Mitigation and monitoring effectiveness.

Visual Marine Mammal Observations

    The Navy will collect sighting data and behavioral responses to 
pile driving activity for marine mammal species observed in the region 
of activity during the period of activity. The Navy will employ a 
minimum of two qualified observers at all times to monitor shutdown 
zones and the surrounding waters of Anaheim Bay. In order to accomplish 
visual coverage of the entirety of Anaheim Bay, it is possible that 
additional observers will be used. All observers will be trained in 
marine mammal identification and behaviors and are required to have no 
other construction-related tasks while conducting monitoring. The Navy 
would monitor all shutdown zones at all times, and would monitor 
disturbance zones as conditions allow. The Navy would conduct 
monitoring before, during, and after pile driving, with observers 
located at the best practicable vantage points.
    As described in ``Proposed Mitigation'' and based on our 
requirements, the Navy would implement the following procedures for 
pile driving:
     Marine mammal observers would 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.
     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 would be halted.
     The shutdown zone around the pile would be monitored for 
the presence of marine mammals before, during, and after all pile 
driving activity.
    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. Monitoring biologists will 
use their best professional judgment throughout implementation and seek 
improvements to these methods when deemed appropriate. Any 
modifications to the protocol will be coordinated between NMFS and the 
Navy.

Data Collection

    We require that observers use standardized 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 a description of specific actions that ensued and 
resulting behavior of the animal, if any. 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., wind speed, percent cloud 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 distance from 
pile driving activity;
     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.
    The Navy will note in behavioral observations, to the extent such 
observations are possible, if an animal has remained in the area during 
construction activities. Therefore, it may be possible to identify if 
the same animal or different individuals are being exposed.

Reporting

    A draft report would be submitted to NMFS within 90 days of the 
completion of each calendar year. 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. The Navy would also submit a 
comprehensive summary report covering all activities conducted under 
the incidental take regulations.

Reporting Injured or Dead Marine Mammals

    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the Navy shall report the 
incident to the Office of Protected Resources (OPR), NMFS and to the 
regional stranding coordinator as soon as feasible. The report must 
include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' by mortality, serious injury, and Level A or Level B 
harassment, we consider other factors, such as the likely nature of any 
behavioral responses (e.g., intensity, duration), the context of any 
such responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as

[[Page 67418]]

reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality).
    Pile driving activities associated with this construction action, 
as described previously, have the potential to disturb 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 
individual marine mammals are present in the ensonified zone when pile 
driving is happening.
    No serious injury or mortality would be expected even in the 
absence of the proposed mitigation measures. No Level A harassment is 
anticipated given the nature of the activities, i.e., much of the 
anticipated activity would involve vibratory driving and/or brief 
impact installation of primarily non-steel piles, and measures designed 
to minimize the possibility of injury. The limited potential for injury 
is expected to be essentially eliminated through implementation of the 
planned mitigation measures--soft start (for impact driving) and 
shutdown zones. Impact driving, as compared with vibratory driving, has 
source characteristics (short, sharp pulses with higher peak levels and 
much sharper rise time to reach those peaks) that are potentially 
injurious or more likely to produce severe behavioral reactions. Given 
sufficient notice through use of soft start, marine mammals are 
expected to move away from a sound source that is annoying prior to its 
becoming potentially injurious or resulting in more severe behavioral 
reactions. Environmental conditions are expected to generally be good, 
with calm sea states, and we expect conditions would allow a high 
marine mammal detection capability, 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). 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 Diego Bay, San Francisco Bay, and in the Puget Sound region, 
which have taken place with no known long-term adverse consequences 
from behavioral harassment.
    The Navy has conducted multi-year activities potentially affecting 
marine mammals, and typically involving greater levels of activity and/
or more impactful activities (e.g., impact driving of steel piles) than 
is contemplated here, in various locations such as San Diego Bay as 
well as locations in Washington inland waters. Reporting from these 
activities has similarly reported no apparently consequential 
behavioral reactions or long-term effects on marine mammal populations. 
Repeated exposures of individuals to relatively low levels of sound 
outside of preferred habitat areas are unlikely to significantly 
disrupt critical behaviors. 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 adverse 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 area 
while the activity is occurring. Effects of the specified activity are 
expected to be limited to the enclosed waters of Anaheim Bay, which 
provides relatively low-quality habitat and no known habitat areas of 
any importance. Therefore, we expect that animals annoyed by project 
sound would simply avoid the area and use more-preferred habitats.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of serious injury or mortality 
may reasonably be considered discountable; (2) as a result of the 
nature of the activity in concert with the planned mitigation 
requirements, injury is not anticipated; (3) the anticipated incidents 
of Level B harassment consist of, at worst, temporary modifications in 
behavior; (4) the absence of any significant habitat within the project 
area, including known areas or features of special significance for 
foraging or reproduction; and (5) the presumed efficacy of the proposed 
mitigation measures in reducing the effects of the specified activity 
to the level of least practicable adverse impact.
    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 activities will have only 
minor, short-term effects on individuals. The specified activities are 
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 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, we preliminarily find that the total marine mammal 
take from the Navy's construction activities will have a negligible 
impact on the affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(A) of the MMPA for specified 
activities. The MMPA does not define small numbers and so, in practice, 
where estimated numbers are available, NMFS compares the number of 
individuals taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. 
Additionally, other qualitative factors may be considered in the 
analysis, such as the temporal or spatial scale of the activities.
    Please see Table 6 for information relating to this small numbers 
analysis. We propose to authorize incidental take of five marine mammal 
species (with take of one species potentially occurring for two 
stocks). The total annual amount of taking proposed for authorization 
is less than one percent for all stocks other than the California 
coastal bottlenose dolphin, for which the proposed annual take 
represents greater than one-third of the best available population 
abundance, if we were to assume that all takes occurred to distinct 
individuals. However, these numbers represent the estimated incidents 
of take, not the number of individuals taken. That is, it is likely 
that a relatively small subset of California coastal bottlenose 
dolphins would be incidentally harassed by project activities. 
California coastal bottlenose dolphins range from San Francisco Bay to 
San Diego (and south into Mexico) and the specified activity would be 
stationary within an enclosed water body that is not recognized as an 
area of any special significance for coastal bottlenose dolphins (and 
is therefore not an area of dolphin aggregation, as evident in Navy 
observational records). We therefore believe that the estimated numbers 
of takes likely represent repeated

[[Page 67419]]

exposures of a much smaller number of bottlenose dolphins and that, 
based on the limited region of exposure in comparison with the known 
distribution of the coastal bottlenose dolphin, these estimated 
incidents of take represent small numbers of bottlenose dolphins. 
Therefore, the proposed annual take levels would be of small numbers 
for all stocks.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population 
sizes 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 these actions. 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.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Navy construction activities would contain an adaptive management 
component.
    The reporting requirements associated with this proposed rule are 
designed to provide NMFS with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from the Navy regarding 
practicability) on an annual or biennial basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

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.

Request for Information

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the Navy request and the proposed 
regulations (see ADDRESSES). All comments will be reviewed and 
evaluated as we prepare a final rule and make final determinations on 
whether to issue the requested authorization. This notice and 
referenced documents provide all environmental information relating to 
our proposed action for public review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The U.S. Navy is the sole entity that would be subject to the 
requirements in these proposed regulations, and the Navy is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. Because of this certification, a regulatory 
flexibility analysis is not required and none has been prepared.
    This proposed rule does not contain a collection-of-information 
requirement subject to the provisions of the Paperwork Reduction Act 
(PRA) because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 218

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: December 3, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 218 is proposed 
to be amended as follows:

PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 218 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
2. Add subpart D to part 218 to read as follows:
Subpart D--Taking Marine Mammals Incidental to U.S. Navy Construction 
Activities at Naval Weapons Station Seal Beach, California
Sec.
218.30 Specified activity and specified geographical region.
218.31 Effective dates.
218.32 Permissible methods of taking.
218.33 Prohibitions.
218.34 Mitigation requirements.
218.35 Requirements for monitoring and reporting.
218.36 Letters of Authorization.
218.37 Renewals and modifications of Letters of Authorization.
218.38--218.39 [Reserved]

Subpart D--Taking Marine Mammals Incidental to U.S. Navy 
Construction Activities at Naval Weapons Station Seal Beach, 
California


Sec.  218.30  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy) 
and those persons it authorizes or funds to conduct activities on its 
behalf for the taking of marine mammals that occurs in the areas 
outlined in paragraph (b) of this section and that occurs incidental to 
maintenance construction activities.
    (b) The taking of marine mammals by the Navy may be authorized in a 
Letter of Authorization (LOA) only if it occurs within California 
coastal waters in the vicinity of Naval Weapons Station Seal Beach.


Sec.  218.31  Effective dates.

    Regulations in this subpart are effective from [EFFECTIVE DATE OF 
FINAL RULE] through [DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].


Sec.  218.32  Permissible methods of taking.

    Under LOAs issued pursuant to Sec.  216.106 of this chapter and 
Sec.  218.36, the Holder of the LOA (hereinafter ``Navy'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  218.30(b) by Level B harassment associated with 
construction activities, provided the activity is in compliance with 
all terms, conditions, and requirements of the regulations in this 
subpart and the appropriate LOA.

[[Page 67420]]

Sec.  218.33  Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.32 and authorized 
by an LOA issued under Sec.  216.106 of this chapter and Sec.  218.36, 
no person in connection with the activities described in Sec.  218.30 
may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec.  216.106 of 
this chapter and Sec.  218.36;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs in any manner 
other than as specified;
    (d) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (e) Take a marine mammal specified in such LOAs if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.


Sec.  218.34  Mitigation requirements.

    When conducting the activities identified in Sec.  218.30(a), the 
mitigation measures contained in any LOA issued under Sec.  216.106 of 
this chapter and Sec.  218.36 must be implemented. These mitigation 
measures shall include but are not limited to:
    (a) General conditions:
    (1) A copy of any issued LOA must be in the possession of the Navy, 
its designees, and work crew personnel operating under the authority of 
the issued LOA.
    (2) The Navy shall conduct briefings for construction supervisors 
and crews, the 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, the marine 
mammal monitoring protocol, and operational procedures.
    (b) Shutdown zones:
    (1) For all pile driving activity, the Navy shall implement a 
minimum shutdown zone of a 10 m radius around the pile. If a marine 
mammal comes within or approaches the shutdown zone, such operations 
shall cease.
    (2) For all pile driving activity, the Navy shall implement 
shutdown zones with radial distances as identified in any LOA issued 
under Sec.  216.106 of this chapter and Sec.  218.36. If a marine 
mammal comes within or approaches the shutdown zone, such operations 
shall cease.
    (3) For all pile driving activity, the Navy shall designate 
monitoring zones with radial distances as identified in any LOA issued 
under Sec.  216.106 of this chapter and Sec.  218.36.
    (c) Shutdown protocols:
    (1) The Navy shall deploy marine mammal observers as described in 
Sec.  218.35.
    (2) For all pile driving activities, a minimum of one observer 
shall be stationed at the active pile driving rig or in reasonable 
proximity in order to monitor the shutdown zone.
    (3) Monitoring shall take place from 30 minutes prior to initiation 
of pile driving activity through 30 minutes post-completion of pile 
driving activity. Pre-activity monitoring shall be conducted for 30 
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. In the event of a delay or shutdown of 
activity resulting from marine mammals in the shutdown zone, animals 
shall be allowed to remain in the shutdown zone (i.e., must leave of 
their own volition) and their behavior shall be monitored and 
documented. Monitoring shall occur throughout the time required to 
drive a pile. A determination that the shutdown zone is clear must be 
made during a period of good visibility (i.e., the entire shutdown zone 
and surrounding waters must be visible to the naked eye).
    (4) 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 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.
    (5) Monitoring shall be conducted by trained observers, who shall 
have no other assigned tasks during monitoring periods. Trained 
observers shall be placed at the best vantage point(s) practicable to 
monitor for marine mammals and implement shutdown or delay procedures 
when applicable through communication with the equipment operator. The 
Navy shall adhere to the following additional observer qualifications:
    (i) Independent observers (i.e., not construction personnel) are 
required.
    (ii) At least one observer must have prior experience working as an 
observer.
    (iii) Other observers may substitute education (degree in 
biological science or related field) or training for experience.
    (iv) Where a team of three or more observers are required, one 
observer shall be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer.
    (v) The Navy shall submit observer CVs for approval by NMFS.
    (d) Soft start: The Navy shall use soft start techniques for impact 
pile driving. Soft start for impact drivers requires contractors to 
provide an initial set of three strikes at reduced energy, followed by 
a thirty-second waiting period, then two subsequent reduced energy 
three-strike sets. Soft start shall be implemented at the start of each 
day's impact pile driving and at any time following cessation of impact 
pile driving for a period of thirty minutes or longer.


Sec.  218.35  Requirements for monitoring and reporting.

    (a) Trained observers shall receive a general environmental 
awareness briefing conducted by Navy staff. At minimum, training shall 
include identification of marine mammals that may occur in the project 
vicinity and relevant mitigation and monitoring requirements. All 
observers shall have no other construction-related tasks while 
conducting monitoring.
    (b) For shutdown zone monitoring, the Navy shall report on 
implementation of shutdown or delay procedures, including whether the 
procedures were not implemented and why (when relevant).
    (c) The Navy shall deploy a minimum of one additional observer to 
aid in monitoring disturbance zones. This observer shall collect 
sighting data and behavioral responses to pile driving for marine 
mammal species observed in the region of activity during the period of 
activity, and shall communicate with the shutdown zone observer as 
appropriate with regard to the presence of marine mammals. All 
observers shall be trained in identification and reporting of marine 
mammal behaviors.
    (d) The Navy must submit annual and summary reports.
    (1) Annual reporting:
    (i) Navy shall submit an annual summary report to NMFS not later 
than 90 days following the end of each calendar year. Navy shall 
provide a final report within 30 days following resolution of comments 
on the draft report.
    (ii) These reports shall contain, at minimum, the following:
    (A) Date and time that monitored activity begins or ends;
    (B) Construction activities occurring during each observation 
period;

[[Page 67421]]

    (C) Weather parameters (e.g., wind speed, percent cloud cover, 
visibility);
    (D) Water conditions (e.g., sea state, tide state);
    (E) Species, numbers, and, if possible, sex and age class of marine 
mammals;
    (F) Description of any observable marine mammal behavior patterns, 
including bearing and direction of travel and distance from pile 
driving activity;
    (G) Distance from pile driving activities to marine mammals and 
distance from the marine mammals to the observation point;
    (H) Description of implementation of mitigation measures (e.g., 
shutdown or delay);
    (I) Locations of all marine mammal observations; and
    (J) Other human activity in the area.
    (2) Navy shall submit a comprehensive summary report to NMFS not 
later than ninety days following the conclusion of marine mammal 
monitoring efforts described in this subpart.
    (e) Reporting of injured or dead marine mammals: In the event that 
personnel involved in the survey activities discover an injured or dead 
marine mammal, the LOA-holder must report the incident to the Office of 
Protected Resources (OPR), NMFS and to the West Coast Regional 
Stranding Network as soon as feasible. The report must include the 
following information:
    (1) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (2) Species identification (if known) or description of the 
animal(s) involved;
    (3) Condition of the animal(s) (including carcass condition if the 
animal is dead);
    (4) Observed behaviors of the animal(s), if alive;
    (5) If available, photographs or video footage of the animal(s); 
and
    (6) General circumstances under which the animal was discovered.


Sec.  218.36  Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Navy must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, the Navy may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Navy must 
apply for and obtain a modification of the LOA as described in Sec.  
218.37.
    (e) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within thirty days of a determination.


Sec.  218.37  Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 of this chapter and Sec.  
218.36 for the activity identified in Sec.  218.30(a) shall be renewed 
or modified upon request by the applicant, provided that:
    (1) The proposed specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations (excluding changes 
made pursuant to the adaptive management provision in paragraph (c)(1) 
of this section), and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in paragraph (c)(1) of this section) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis of the change, and 
solicit public comment before issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
218.36 for the activity identified in Sec.  218.30(a) may be modified 
by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with the Navy regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from the Navy's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in LOAs issued pursuant to Sec.  216.106 of 
this chapter and Sec.  218.36, an LOA may be modified without prior 
notice or opportunity for public comment. Notice would be published in 
the Federal Register within thirty days of the action.


Sec.  218.38-Sec.  218.39  [Reserved]

[FR Doc. 2019-26429 Filed 12-9-19; 8:45 am]
BILLING CODE 3510-22-P