[Federal Register Volume 85, Number 36 (Monday, February 24, 2020)]
[Rules and Regulations]
[Pages 10312-10327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03291]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 200212-0055]
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: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS, upon request of the U.S. Navy (Navy), hereby issues 
regulations to govern the unintentional taking of marine mammals 
incidental to conducting construction activities related to development 
of a new ammunition pier at Seal Beach, California, over the course of 
five years. These regulations, which allow for the issuance of Letters 
of Authorization (LOA) for the incidental take of marine mammals during 
the described activities and specified timeframes, prescribe the 
permissible methods of taking and other means of effecting the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat, as well as requirements pertaining to the monitoring and 
reporting of such taking.

DATES: Effective from March 25, 2020, through March 25, 2025.

ADDRESSES: A copy of the Navy's application and 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 below.

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

SUPPLEMENTARY INFORMATION:

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 rule establishes 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 ``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 final rule 
containing five-year regulations, and for any subsequent LOAs. As 
directed by this legal authority, this rule contains mitigation, 
monitoring, and reporting requirements.

Summary of Major Provisions Within the Final Rule

    Following is a summary of the major provisions of this 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; and
     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 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.

[[Page 10313]]

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. 
We subsequently published a Notice of Proposed Rulemaking in the 
Federal Register on December 10, 2019 (84 FR 67404). Comments received 
during the public comment period on the proposed regulations are 
addressed in ``Comments and Responses.''
    The Navy plans 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. These 
regulations are 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 planned 
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 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

    These regulations are 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 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 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 5-year period. These totals include both 
extraction and installation of piles, and represent a conservative 
estimate of pile 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). For additional detail regarding the 
specified geographical region, please see our Notice of Proposed 
Rulemaking (84 FR 67404; December 10, 2019) and Section 2 of the Navy's 
application.

Detailed Description of Activities

    As described above, the Navy 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. A detailed description of the Navy's planned activities 
was provided in our Notice of Proposed Rulemaking (84 FR 67404; 
December 10, 2019) and is not repeated here. No changes have been made 
to the specified activities described therein.
    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

[[Page 10314]]

result in incidental take of marine mammals. Therefore, only vibratory 
and impact pile driving are carried forward for further analysis. 
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-inch (in) (61-centimeter (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 meters (m) of tip elevation and then completed 
via impact driving. Piles are expected to largely be 24-in octagonal or 
square.
    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).

Comments and Responses

    We published a Notice of Proposed Rulemaking in the Federal 
Register on December 10, 2019 (84 FR 67404). During the 30-day comment 
period, we received a letter from the Marine Mammal Commission 
(Commission). The comments and our responses are described below. For 
full detail of the comments and recommendations, please see the comment 
letter, which is available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-ammunition-pier-and-turning-basin-naval.
    Comment: To better account for the number of cetaceans that have 
the potential to occur within the Level B harassment zones and to 
minimize unnecessary delays in completing the activities should the 
authorized takes be met, the Commission recommends that NMFS increase 
the numbers of cetacean takes in the final rule.
    Response: We concur with the recommendation and have increased the 
take numbers for authorization as suggested by the Commission. Please 
see ``Changes from Proposed to Final Regulations'' below for a 
description of the change and Table 6 for revised take numbers.
    Comment: The Commission recommends that NMFS include in the final 
rule certain requirements that the Commission deems ``standard.'' 
Specifically, the Commission recommends that we include requirements 
that the Navy (1) conduct pile-driving and -removal activities during 
daylight hours only and (2) if the entire shut-down zone(s) is not 
visible due to darkness, fog, or heavy rain, delay or cease pile-
driving and -removal activities until the zone(s) is visible and, 
separately, a requirement to delay or cease pile-driving and -removal 
activities, if a species for which take has not been authorized or for 
which the authorized number of takes has been met is observed 
approaching or within the Level B harassment zone.
    Response: We do not fully concur with the Commission's 
recommendations, or with their underlying justification, and do not 
adopt them as stated. However, we do clarify in the final regulatory 
text that the required shutdown zones must remain visible during impact 
pile driving, though this need not preclude pile driving at night with 
sufficient illumination. While the Navy has no intention of conducting 
pile driving activities at night, it is unnecessary to preclude such 
activity should the need arise (e.g., on an emergency basis or to 
complete driving of a pile begun during daylight hours, should the 
construction operator deem it necessary to do so). Further, while 
acknowledging that prescribed mitigation measures for any specific 
action (and an associated determination that the prescribed measures 
are sufficient to achieve the least practicable adverse impact on the 
affected species or stocks and their habitat) are subject to review by 
the Commission and the public, any determination of what measures 
constitute ``standard'' mitigation requirements is NMFS' alone to make. 
Even in the context of measures that NMFS considers to be ``standard'' 
we reserve the flexibility to deviate from such measures, depending on 
the circumstances of the action. We disagree with the statement that a 
prohibition on pile driving activity outside of daylight hours is 
necessary to meet the MMPA's least practicable adverse impact standard, 
and with the apparent premise that such a prohibition is necessary to 
preclude unauthorized taking by Level A harassment. As the Commission 
is aware, the mere appearance of an animal within a shutdown zone does 
not indicate that onset of auditory injury (i.e., Level A harassment) 
has occurred, as the calculation of Level A harassment zones for pile 
driving activity (generally dictated by cumulative sound exposure level 
rather than peak pressure level) assumes that an animal has accumulated 
energy over some assumed duration (or been exposed at a given distance 
to some assumed number of pile strikes).
    We similarly disagree with the need to explicitly articulate a 
requirement to delay or cease activities if a species for which take 
has not been authorized or for which the authorized number of takes has 
been met is observed approaching or within the Level B harassment zone. 
All authorizations state explicitly the species authorized for taking 
and the numbers, by type (e.g., Level A or B harassment), of take 
incidents authorized, while also explicitly stating that the 
authorization is limited to those species and numbers. Separately, all 
authorizations already contain the redundant admonition that any taking 
of a type more severe than authorized or exceeding the stated numbers 
is prohibited. Therefore, the Commission's recommended language is 
doubly redundant.
    Comment: The Commission recommends that NMFS (1) include in the 
preamble and any issued LOA the

[[Page 10315]]

modeled extents of the Level B harassment zones for impact installation 
of 12-in piles and vibratory removal of the 12-in piles and 24-in steel 
pipe piles based on Table 6-4 in the application and (2) include in the 
preamble and regulatory text of the final rule a reporting requirement 
to extrapolate the numbers of Level B harassment takes, not only to 
those portions of the Level B harassment zones that the PSOs are unable 
to monitor within Anaheim Bay during the various activities but also 
those portions outside the bay when the 12-in I-beams are removed.
    Response: We concur with and adopt the recommendation to include 
the referenced modeled Level B harassment zones. Please see Table 5. We 
do not adopt the recommended reporting requirement. The Navy has 
committed to monitoring the extent of waters within Anaheim Bay (or the 
extent of the Level B harassment zone, when encompassing a smaller area 
within Anaheim Bay), so no extrapolation is necessary within that area. 
Regarding the suggestion that take is expected to occur within waters 
outside of Anaheim Bay and, therefore, extrapolation is necessary in 
order to estimate total take, we described in detail in the preamble to 
the proposed rule the basis for our assumption that no take would occur 
beyond the waters of Anaheim Bay. The Commission does not address this 
assumption in their letter.
    As noted by the Commission, the modeled distance to the Level B 
harassment isopleths for vibratory driving of 12-in steel beams outside 
of the planned breakwater is approximately 1.5 kilometers (km), meaning 
that, depending on location within the outer waters of Anaheim Bay, 
such isopleths could extend as much as approximately 1 km outside of 
the Bay. However, this assumption ignores the realistic environmental 
context of this location. As we described in the preamble to the 
proposed rule, the Anaheim Bay entrance is located approximately 8 km 
from the Ports of Los Angeles/Long Beach, which together form one of 
the busiest container ports in the world, and is situated between the 
entrances to the Huntington Beach and Alamitos/Long Beach marinas, 
which together have more than 2,000 boat slips. Additionally, an 
offshore petroleum extraction platform is located approximately 1.4 km 
offshore from the Anaheim Bay entrance. Although appropriate background 
noise measurements are not available for the immediate vicinity of the 
Anaheim Bay entrance, it is likely that, at times, the noise from this 
vibratory driving activity may not exceed the level of extant 
background noise. Moreover, given the narrow entrance to jetty-enclosed 
Anaheim Bay, only a narrow strip of ensonified area could potentially 
extend beyond that entrance. When coupled with the short duration of 
this specific activity component (less than two hours per day for two 
days), there is a very low likelihood that any animal could be exposed 
to this noise. Finally, and most importantly, considering the thousands 
of ship transits passing nearby per year, near-constant activity of 
pilot vessels, tug boats, and recreational vessels, and noise from 
moored vessels and the production platform, we reasonably assume the 
noise environment in waters immediately adjacent to the Anaheim Bay 
entrance to be sufficiently loud that the addition of another, similar 
low-level industrial continuous noise source is not reasonably likely 
to cause an exposed animal to respond in a manner appropriately equated 
to ``take,'' as defined under the MMPA.
    In summary, there is a very low likelihood that any animal could be 
exposed to noise exceeding the harassment threshold outside of Anaheim 
Bay and, in the event that such exposure occurred, we have determined 
it not reasonably likely that the exposed animal would respond in a way 
equivalent to harassment under the MMPA. Therefore, there is no need to 
estimate take that may occur outside of Anaheim Bay.
    Comment: The Commission recommends that NMFS ensure that the Navy 
keeps a running tally of the total takes for each species to comply 
with the regulations.
    Response: We agree that the Navy must ensure they do not exceed 
authorized takes. However, NMFS is not responsible for ensuring that 
the Navy does not operate in violation of an issued Letter of 
Authorization.
    Comment: The Commission recommends that NMFS include in the final 
rule reporting requirements consistent with certain specific 
authorizations cited in their letter.
    Response: We have revised the specific reporting language 
referenced by the Commission as recommended. Please see ``Changes from 
Proposed to Final Regulations'' below for a description of the change 
and ``Monitoring and Reporting'' for additional detail regarding these 
requirements.

Changes From Proposed to Final Regulations

    The only changes from the proposed to final regulations are those 
described in the responses to comments, including increases to certain 
authorized take numbers, clarification that impact pile driving must 
cease or be delayed if shutdown zone visibility is impaired, and minor 
revisions to descriptions of information that must be included in 
required reporting.
    As recommended by the Commission, we have increased the annual 
numbers of cetacean takes from 220 to 336 for bottlenose dolphins, 336 
to 454 for common dolphins, and 7 to 11 takes for gray whales in the 
final rule.
    As recommended by the Commission, we have revised descriptions of 
information that must be included in required reporting. These 
requirements were described as follows in the proposed rule:
     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.
    Descriptions of these requirements have been revised as follows:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
driven or removed and by what method (i.e., impact or vibratory);
     Weather parameters and water conditions during each 
monitoring period (e.g., wind speed, percent cover, visibility, sea 
state);
     The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting;
     Age and sex class, if possible, of all marine mammals 
observed;
     PSO locations during marine mammal monitoring;
     Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);

[[Page 10316]]

     Description of any marine mammal behavior patterns during 
observation, including direction of travel;
     Number of individuals of each species (differentiated by 
month as appropriate) detected within the monitoring zone, and 
estimates of number of marine mammals taken, by species (a correction 
factor may be applied to total take numbers, as appropriate);
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any;
     Description of attempts to distinguish between the number 
of individual animals taken and the number of incidences of take, such 
as ability to track groups or individuals; and
     An extrapolation of the estimated takes by Level B 
harassment based on the number of observed exposures within the Level B 
harassment zone and the percentage of the Level B harassment zone that 
was not visible, when applicable.

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.

                                      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):

[[Page 10317]]

 
    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. Additional detail regarding 
the affected species and stocks, including local occurrence data, was 
provided in our Notice of Proposed Rulemaking (84 FR 67404; December 
10, 2019) and is not repeated here.

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 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 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 ``Mitigation'' 
section, to draw conclusions regarding the likely impacts of these 
activities on the

[[Page 10318]]

reproductive success or survivorship of individuals and from that on 
the affected marine mammal populations. We also provided additional 
description of sound sources in our Notice of Proposed Rulemaking (84 
FR 67404; December 10, 2019).

Estimated Take

    This section provides an estimate of the number of incidental takes 
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

    We provided discussion of relevant sound thresholds in our Notice 
of Proposed Rulemaking (84 FR 67404; December 10, 2019) and do not 
repeat the information here. Generalized acoustic thresholds based on 
received level are used to estimate the onset of Level B harassment. 
These thresholds are 160 dB rms (intermittent sources) and 120 dB rms 
(continuous sources). Please see Table 2 for Level A harassment 
(auditory injury) criteria.

                                 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--We provided discussion of relevant propagation 
considerations in our Notice of Proposed Rulemaking (84 FR 67404; 
December 10, 2019) and do not repeat the information here. As discussed 
in the proposed rule, 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 modeling approach accounts for factors such as depth, 
substrate, and frequency-dependency, and was performed for propagation 
associated with impact driving of 24-in concrete piles and 12-in steel 
beams, and for vibratory driving of 30-in steel piles (as proxy for 
vibratory installation of 12-in steel beams and removal of 24-in steel 
piles). Propagation loss associated with vibratory removal of 24-in 
timber piles was not modeled, but rather represented through an 
assumption of practical spreading loss (4.5 dB reduction in sound level 
for each doubling of distance).
    The above-referenced 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. 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. However, when accounting for the expected noise 
environment outside of Anaheim Bay, we assume that any sound above 
harassment thresholds that could propagate outside of the confines of 
Anaheim Bay would either not generally be discernible to marine 
mammals, or would not present a sufficiently great signal to noise 
ratio such that behavioral harassment would be the likely outcome. 
Therefore, we assume that potential incidental take of marine mammals 
resulting from the specified activity may occur only within Anaheim 
Bay. Assumed isopleth distances are given in Table 5.
    Sound Source Levels--We provided discussion of source level 
considerations in our Notice of Proposed Rulemaking (84 FR 67404; 
December 10, 2019) and do not repeat the information here. No changes 
have been made to the source level selections described in the proposed 
rule and shown in Table 3.

                                         Table 3--Assumed Source Levels
----------------------------------------------------------------------------------------------------------------
            Method                    Type           Size (in)     SPL (rms) \1\  SPL (peak) \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

[[Page 10319]]

 
                                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
                                                                   Installation  -------------------------------
                      Pile type and method                         rate per day       Average      Average daily
                                                                                   strikes/pile   duration (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. 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. As discussed 
in detail in the Notice of Proposed Rulemaking (84 FR 67404; December 
10, 2019), delineation of potential injury zones on the basis of the 
cumulative SEL metric for vibratory driving was performed using the 
NMFS User Spreadsheet. This relatively simple approach will typically 
result in higher predicted exposures for broadband sounds, since 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, which is an additional conservative assumption.
    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). Please note that 
Table 5 in the proposed rule included calculated rather than modeled 
distances for certain piles. As recommended by the Commission, Table 5 
is revised to include only the relevant modeled distances. 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.

                                           Table 5--Assumed 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  \2\ 424-430
24-in steel............................  Vibratory.................      n/a       17      n/a      <10      n/a       27      n/a      <10          770
12-in steel............................  Vibratory.................      n/a       19      n/a      <10      n/a       32      n/a      <10     \2\ 821-
                                                                                                                                                   1,498
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; topography constrains actual zones and all zones are assumed restricted to Anaheim Bay.
\2\ Modeled distances are provided for specific notional pile locations. Therefore, a range is presented.

Exposure Estimates

    Available information regarding marine mammal occurrence at NWS 
Seal Beach, based on local observational effort, was summarized in the 
Notice of Proposed Rulemaking (84 FR 67404; December 10, 2019). 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 5-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,

[[Page 10320]]

the Navy assumes 112 pile driving days per year for 3 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/5 days per week/4 weeks per 
month x assumed number of 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 required mitigation 
measures further reduce the low likelihood that any incidents of Level 
A harassment would occur, and none may be authorized under these 
regulations.
    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 1 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 336 incidents of take, and 1,008 
over the duration of the rule. Here we present an example calculation: 
112 days of annual pile driving/5 days pile driving per week/4 weeks 
per month x 10 animals present on 6 days per month = 336 incidents of 
take per year. 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 454 incidents of take, and 1,361 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 eleven incidents of take, and 34 over 
the duration of the rule.
    The total numbers of take for authorization for all species is 
summarized in Table 6 below. These numbers were revised on the basis of 
comment from the Commission, as discussed in ``Comments and 
Responses.'' No authorization of take by Level A harassment is 
expected, nor may take by Level A harassment be authorized under the 
rule.

                           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..............................................             336           1,008            74.2
Common dolphin..................................................             454           1,361        <0.1/0.4
Gray whale......................................................              11              34            <0.1
----------------------------------------------------------------------------------------------------------------
\1\ Reflects annual take number.

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 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

[[Page 10321]]

harassment and to monitor Level B harassment.
    In addition to the specific measures described later in this 
section, the Navy will 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 will 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 determinations and is not included in the 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 will 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 will 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 ``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 will 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 will 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.
    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 will 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

[[Page 10322]]

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, i.e., 
the entire shutdown zone must remain visible during impact pile 
driving.
    (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 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 determined that the 
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.

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;
     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); and
     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 
will monitor all shutdown zones at all times, and would monitor 
disturbance zones as conditions allow. The Navy will conduct monitoring 
before, during, and after pile driving, with observers located at the 
best practicable vantage points.
    As described in ``Mitigation'' and based on our requirements, the 
Navy will implement the following procedures for pile driving:
     Marine mammal observers will be located at the best 
vantage point(s) in order to properly see the entire shutdown zone and 
as much of the disturbance zone as possible;
     During all observation periods, observers will use 
binoculars and the

[[Page 10323]]

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 will be halted; and
     The shutdown zone around the pile will 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:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
driven or removed and by what method (i.e., impact or vibratory);
     Weather parameters and water conditions during each 
monitoring period (e.g., wind speed, percent cover, visibility, sea 
state);
     The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting;
     Age and sex class, if possible, of all marine mammals 
observed;
     PSO locations during marine mammal monitoring;
     Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);
     Description of any marine mammal behavior patterns during 
observation, including direction of travel;
     Number of individuals of each species (differentiated by 
month as appropriate) detected within the monitoring zone, and 
estimates of number of marine mammals taken, by species (a correction 
factor may be applied to total take numbers, as appropriate);
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any;
     Description of attempts to distinguish between the number 
of individual animals taken and the number of incidences of take, such 
as ability to track groups or individuals; and
     An extrapolation of the estimated takes by Level B 
harassment based on the number of observed exposures within the Level B 
harassment zone and the percentage of the Level B harassment zone that 
was not visible, when applicable.

Reporting

    A draft report must 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 a 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 will 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 
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 required 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

[[Page 10324]]

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 required 
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 required monitoring and 
mitigation measures, we 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 expect 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 for authorization is less 
than one percent for all stocks other than the California coastal 
bottlenose dolphin, for which the 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 
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 annual take levels would be of small numbers for all 
stocks.
    Based on the analysis contained herein of the specified activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS 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

[[Page 10325]]

such species or stocks for taking for subsistence purposes.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Navy construction activities contain an adaptive management component.
    The reporting requirements associated with this 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.

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 determined 
that the action qualifies to be categorically excluded from further 
NEPA review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
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 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this action will not 
have a significant economic impact on a substantial number of small 
entities. Navy is the sole entity that would be subject to the 
requirements of these regulations, and the U.S. Navy is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. No comments were received regarding this 
certification. As a result, a regulatory flexibility analysis is not 
required and none has been prepared.
    This 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: February 13, 2020.
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 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 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 March 25, 2020, 
through March 25, 2025.


Sec.  218.32   Permissible methods of taking.

    Under LOAs issued pursuant to Sec. Sec.  216.106 of this chapter 
and 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.


Sec.  218.33   Prohibitions.

    Notwithstanding takings contemplated in Sec.  218.32 and authorized 
by an LOA issued under Sec. Sec.  216.106 of this chapter and 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. Sec.  216.106 
of this chapter and 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

[[Page 10326]]

    (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. Sec.  
216.106 of this chapter and 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. Sec.  216.106 of this chapter and 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. Sec.  216.106 of this chapter and 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) During conditions where the entire shutdown zone is not visible 
(e.g., dark, fog, heavy rain), impact pile driving must be delayed 
until the PSO is confident marine mammals within the shutdown zone 
could be detected.
    (6) 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) 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. These reports shall contain, at minimum, the 
following:
    (i) Dates and times (begin and end) of all marine mammal 
monitoring;
    (ii) Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
driven or removed and by what method (i.e., impact or vibratory);
    (iii) Weather parameters and water conditions during each 
monitoring period (e.g., wind speed, percent cover, visibility, sea 
state);
    (iv) The number of marine mammals observed, by species, relative to 
the pile location and if pile driving or removal was occurring at time 
of sighting;
    (v) Age and sex class, if possible, of all marine mammals observed;
    (vi) PSO locations during marine mammal monitoring;
    (vii) Distances and bearings of each marine mammal observed to the 
pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);

[[Page 10327]]

    (viii) Description of any marine mammal behavior patterns during 
observation, including direction of travel;
    (ix) Number of individuals of each species (differentiated by month 
as appropriate) detected within the monitoring zone, and estimates of 
number of marine mammals taken, by species (a correction factor may be 
applied to total take numbers, as appropriate);
    (x) Detailed information about any implementation of any mitigation 
triggered (e.g., shutdowns and delays), a description of specific 
actions that ensued, and resulting behavior of the animal, if any;
    (xi) Description of attempts to distinguish between the number of 
individual animals taken and the number of incidences of take, such as 
ability to track groups or individuals; and,
    (xii) An extrapolation of the estimated takes by Level B harassment 
based on the number of observed exposures within the Level B harassment 
zone and the percentage of the Level B harassment zone that was not 
visible, when applicable.
    (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. Sec.  216.106 of this chapter and 
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. Sec.  216.106 of this chapter and 
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. Sec.  216.106 
of this chapter and 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.  Sec.  218.38-218.39   [Reserved]

[FR Doc. 2020-03291 Filed 2-21-20; 8:45 am]
BILLING CODE 3510-22-P