[Federal Register Volume 85, Number 227 (Tuesday, November 24, 2020)]
[Notices]
[Pages 74989-74995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25953]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA639]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Service Pier Extension Project 
on Naval Base Kitsap Bangor, Washington

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

ACTION: Notice; proposed modification of an incidental harassment 
authorization; request for comments.

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SUMMARY: NMFS received a request from the United States Navy (Navy) on 
October 14, 2020, for a modification to the incidental harassment 
authorization (IHA) that was issued on July 3, 2019 due to an elevated 
harbor seal take rate that was unanticipated. A small group of harbor 
seals (Phoca vitulina) repeatedly entered into and remained within the 
Level A harassment zone, resulting in a take rate that was projected to 
exceed the authorized limit for this species. The Navy felt that 
without an increase in authorized take of harbor seal they would be 
forced to repeatedly shut down whenever animals entered into specified 
Level A harassment zones, which would impede their ability to get the 
work done in the time needed. Therefore, NMFS is proposing to modify 
the IHA to increase authorized take by Level A harassment of harbor 
seal. NMFS is also proposing to revise the shutdown mitigation 
provisions for harbor seals in the modified IHA. The monitoring and 
reporting measures remain the same as prescribed in the initial IHA and 
no additional take was requested for other species. NMFS will consider 
public comments on the requested modification prior to making any final 
decision and agency responses will be summarized in the final notice of 
our decision.

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

[[Page 74990]]


ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are 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 such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.

History of Request

    On June 28, 2018, NMFS published a notice of our issuance of an IHA 
authorizing take of five species of marine mammals by Level A and Level 
B harassment incidental to the Service Pier Extension project (83 FR 
30406). Species authorized for take included killer whale (Orcinus 
orca), harbor porpoise (Phocoena phocoena), California sea lion 
(Zalophus californianus), Steller sea lion (Eumetopias jubatus), and 
harbor seal (Phoca vitulina). The effective dates of that IHA were July 
16, 2019, through July 15, 2020. On February 4, 2019, the Navy informed 
NMFS that the project was being delayed by one full year. None of the 
work identified in the initial IHA had occurred and no marine mammals 
had been taken before the effective date of the initial IHA (July 16, 
2019 through July 15, 2020). Therefore, the Navy submitted a formal 
request for reissuance of the initial IHA with new effective dates of 
July 16, 2020, through July 15, 2021, and NMFS re-issued the IHA (84 FR 
31844; July 3, 2019). The IHA covered construction and demolition work 
identical to what was analyzed and authorized through the initial IHA.
    On October 14, 2020, NMFS received a request from the Navy for a 
modification to the current IHA due to an elevated harbor seal take 
rate. The Navy felt that without an increase in authorized take of 
harbor seal they would be forced to repeatedly shut down whenever 
animals entered into specified Level A harassment zones. This would 
likely prolong the duration of in-water construction activities and add 
increased costs to the project. Therefore, the Navy is requesting and 
NMFS is proposing to modify the IHA to increase authorized take of 
harbor seal by Level A harassment. Furthermore, NMFS is proposing 
revise the shutdown mitigation provisions as part of the modified IHA 
which would still expire on July 15, 2021. The monitoring and reporting 
measures remain the same as prescribed in the initial IHA and no 
additional take is requested or proposed for species other than harbor 
seal.

Description of the Proposed Activity and Anticipated Impacts

    The modified IHA would include the same construction activities 
(i.e., impact pile driving, vibratory pile driving, vibratory pile 
removal) in the same locations that were described in the initial IHA. 
The monitoring and reporting measures remain the same as prescribed in 
the initial IHA, while revisions to the required mitigation measures 
have been proposed. NMFS refers the reader to the documents related to 
the initial IHA issued on June 28, 2018 (83 FR 30406), for more 
detailed description of the project activities. Other relevant 
documents include the notice of proposed IHA and request for comments 
(83 FR 10689; March 12, 2018) and notice of reissued IHA (84 FR 31844, 
July 3, 2019).

Detailed Description of the Action

    A detailed description of the survey activities is found in these 
previous documents. The location, timing, and nature of the activities, 
including the types of piles and methods of installation and removal 
are identical to those described in the previous notices.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to this 
modified IHA as well. In addition, NMFS has reviewed recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and recent scientific literature, and determined that no new 
information affects our original analysis of impacts under the initial 
IHA.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the initial IHA, which remains applicable to the issuance of 
this modified IHA. With the exception of harbor seal exposures, there 
is no new information on potential effects.
    For harbor seals, observations indicate that a group of eight 
individuals is regularly present in relatively close proximity to the 
pile driving operations.

[[Page 74991]]

Given this, there is a higher likelihood than initially considered that 
these animals may incur permanent threshold shift (PTS) at a low-
moderate level due to the repeated, longer-duration exposure to higher 
levels of sound.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notice of issuance of 
the IHA for the initial authorization (83 FR 30406; June 28, 2018). The 
types and sizes of piles, installation methods, and marine mammal 
stocks taken remain unchanged from the previously initial IHA. The 
number of authorized takes is also identical with the exception of 
harbor seal.
    The in-water work window (when Endangered Species Act (ESA)-listed 
salmonids are least likely to be present) runs from July 16, 2020 
through January 15, 2021. Pile installation started September 4, 2020 
with both vibratory and impact pile drivers being employed. After in-
water work commenced, protected species observers (PSOs) began 
recording a specific group of harbor seals that consistently entered 
and remained in the Level A harassment zone. (Note that the term PSO 
has replaced marine mammal observer (MMO) in this notice as well as the 
draft modified IHA, although the functions and duties of each are 
identical.) This has resulted in excessive shutdowns. Due to these 
frequent shutdowns pile installation is behind schedule. PSOs have 
identified at least eight harbor seals that frequent the project area 
and have become habituated to the in-water construction work. These 
seals include four pups and four adults which have all been 
individually identified. Three of the pups are seen in the project area 
on almost a daily basis. The pups approach the work site repeatedly 
during the day and stay in the work area for up to 90 minutes. Two of 
the pups and all of the adults have had occasional behavioral reactions 
to pile driving activity. For example, PSOs have recorded seals 
occasionally exhibiting behaviors such as startled response and fast 
swimming away from the activity.
    NMFS had authorized 125 takes by Level A harassment of harbor seal 
under the current IHA. As of October 27, 2020, 54 days of in-water work 
had been completed with the PSOs reporting 87 takes of harbor seal by 
Level A harassment. With 80 in-water working days remaining between 
October 28, 2020 and January 15, 2021, the Navy expected, and NMFS 
concurred, that they would likely exceed authorized take. Note that the 
number of in-water work days was originally scheduled to be 125 days in 
the initial IHA. However, due to delays and shutdowns the total 
estimated number of work days has been updated to 134.
    The Navy used NMFS User Spreadsheet to calculate the Level A 
harassment isopleths associated with project activities. Inputs to the 
model for the initial IHA are shown in Table 1. This model calculated a 
217-m Level A harassment isopleth for phocids (i.e. harbor seals) 
during impact driving of 36-in steel piles. The size of this PTS 
harassment zone for 36-steel pile impact driving is relatively large 
compared to PTS zones for both impact and vibratory driving of other 
pile types and sizes. The large zone size and habituation of a limited 
number of seals has contributed to a greater phocid take rate than was 
initially calculated.

 Table 1--Inputs for Determining Distances to Cumulative PTS Thresholds
------------------------------------------------------------------------
                            36'' steel impact
-------------------------------------------------------------------------
                                       E.1) Impact pile driving
    Spreadsheet tab used     -------------------------------------------
                               Initial IHA inputs       Modified IHA
------------------------------------------------------------------------
Source Level (Single Strike/  173 dB (assumes 8 dB  177 dB (assumes 8 dB
 shot SEL).                    attenuation) \1\.     attenuation) \2\
Weighting Factor Adjustment   Weighting override    Weighting override
 (kHz) \3\.                    (Grebner et al.       (Grebner et al.
                               2016).                2016)
Number of strikes per day...  1,600...............  1,600.
Number of piles per day       2...................  2.
 within 24-h period.
Propagation (xLogR).........  15..................  25.
Distance of source level      10..................  10.
 measurement (meters).
------------------------------------------------------------------------
\1\ Navy 2015.
\2\ Wood et al. 2020.
\3\ For impact driving, the Transmission Loss model described above
  incorporated frequency weighting adjustments by applying the auditory
  weighting function over the entire 1-second SEL spectral data sets.
  Additional information may be found in the Federal Register notice of
  issuance of a final IHA (83 FR 30420; June 28, 2018).

    The Navy conducted sound source verification (SSV) testing in 
September 2020 and compared the results to values generated by the NMFS 
User Spreadsheet in the initial IHA. Due to some of assumptions built 
into the model, the User Spreadsheet generates PTS isopleths that are 
potentially overestimates. Testing was conducted during impact driving 
of four 36-in steel piles both with and without bubble curtains and 
recorded values were inserted into the use spreadsheet. The acoustic 
data for each pile strike were frequency weighted for phocidae 
following NMFS guidance (2016) and then averaged. This resulted in an 
average phocid weighted single strike SEL of 177 dB re 1[mu]Pa2s at 10 
m. Using the measured transmission loss of 25 (far field) and an 
assumption of 1,600 strikes per day, the resulting isopleth for phocids 
was 92 meters (Wood et al. 2020)
    With NMFS' approval, the Navy retroactively utilized the revised 
Level A harassment isopleth of 92 m and recalculated the harbor seal 
take. Distances to each taken animal were recorded as part of the 
marine mammal monitoring plan. This reduced the total take count by 29, 
bringing the revised total from 87 to 58 takes. Approximately 33 
percent of total takes occurred during impact driving outside the 92 m 
zone. A reduction in shutdown zone size based on SSV data in 
combination with a retroactive recalculation of take would allow 
continuation of in-water construction during the public comment period 
and while the modified IHA is being finalized if we were to issue it.

[[Page 74992]]

    While vibratory is the preferred method of installation, impact 
driving has been needed daily due at the project site, largely due to 
sediment conditions. Additionally, there is a 30-m shut down zone (26 
m-injury zone) during vibratory driving. The PSOs report that three 
habituated individuals frequently approach in close proximity to the 
piles within the 30-m shutdown zone during vibratory driving. Given 
these factors, additional takes would still be needed, even if the 
Level A harassment isopleth during impact driving is reduced from 217 m 
to 92 m.
    PSOs report that up to eight animals frequent the project site and 
are believed to be habituated by varying degrees to in-water 
construction activities. Some of them regularly enter and remain within 
Level A harassment and shutdown zones. Three of these individuals 
already noted above appear daily in the Level A harassment zone, while 
the remainder of the group of eight are observed less frequently (every 
other or every third day). All eight seals have been observed in the 
previous Level A harassment zone on some occasions, with an average of 
five to six seen on each day. However, we also note that the area 
ensonified above the Level A harassment threshold has been reduced by 
approximately 33 percent. The Navy requested that NMFS authorize an 
additional four takes by Level A harassment per day. This would allow 
for one take per day by Level A harassment for each of the three daily 
visitors (three takes per day), as well as one additional Level A 
harassment take per day that could be incurred by any of the other five 
individuals if one of them entered the shutdown zone each day prior to 
detection, or if a few of them entered every few days. Based on the 
information provided, NMFS estimates an average of four harbor seal 
takes per day by Level A harassment would occur.
    Based upon pile installation rates achieved to date, all of the 
days remaining within the in-water work window (80) will be needed to 
complete this segment of the project before the current work window 
closes. NMFS is proposing to increase authorized takes of harbor seal 
by Level A harassment by 320 (4 takes/day * 80 days) between now and 
January 15 in addition to the initial 125 takes, for a total of 445, 
most of which will occur to a smaller number of habituated individuals.
    The total numbers of incidental takes by Level A and Level B 
harassment, including proposed updated harbor seal Level A harassment 
and as a percentage of population, is shown in Table 2 below. The total 
number of takes (Level A and Level B harassment combined) has not 
changed because the new Level A takes are assumed to occur to animals 
that would have previously been counted as taken by Level B harassment. 
Therefore, NMFS is proposing to reduce authorized Level B harassment 
take of harbor seal from 5,600 to 5,280.

 Table 2--Total Numbers of Authorized Takes by Level A and Level B Harassment and as a Percentage of Population
----------------------------------------------------------------------------------------------------------------
                                                                          Authorized take
                             Species                             --------------------------------     Percent
                                                                      Level A         Level B       population
----------------------------------------------------------------------------------------------------------------
Killer whale....................................................               0              48            19.7
Harbor porpoise.................................................               0           2,728            24.3
Steller sea lion................................................               0             503             1.2
California sea lion.............................................               0           7,816             2.6
Harbor seal.....................................................             445           5,280             n/a
----------------------------------------------------------------------------------------------------------------

    Since the total number of combined takes by Level A and Level B 
harassment remains unchanged (5,725) from the number authorized in the 
existing IHA, the rationale supporting our small numbers determination 
for the Hood Canal stock of harbor seal is applicable here and remains 
valid.

Description of Mitigation, Monitoring and Reporting Measures

    With the exception of the revised shutdown provisions for harbor 
seals discussed below, the monitoring, and reporting measures described 
here are identical to those included in the Federal Register notice 
announcing the initial IHA (83 FR 30406; June 28, 2018).
    Use of Vibratory Installation--The Navy will employ vibratory 
installation to the greatest extent possible when driving steel piles 
to minimize high sound pressure levels associated with impact pile 
driving. Impact driving of steel piles will only occur when required by 
geotechnical conditions or to proof load-bearing piles driven by 
vibratory methods.
    Timing Restrictions--To minimize the number of fish exposed to 
underwater noise and other construction disturbance, in-water work will 
occur during the in-water work window previously described when ESA-
listed salmonids are least likely to be present (USACE, 2015), July 16-
January 15.
    All in-water construction activities will occur during daylight 
hours (sunrise to sunset) except from July 16 to September 15, when 
impact pile driving will only occur starting 2 hours after sunrise and 
ending 2 hours before sunset, to protect foraging marbled murrelets 
during the nesting season (April 15-September 23).
    Use of Bubble Curtain--A bubble curtain will be employed during 
impact installation or proofing of steel piles where water depths are 
greater than 0.67 m (2 ft). A noise attenuation device is not required 
during vibratory pile driving. If a bubble curtain or similar measure 
is used, it will distribute air bubbles around 100 percent of the 
piling perimeter for the full depth of the water column. Any other 
attenuation measure must provide 100 percent coverage in the water 
column for the full depth of the pile. The lowest bubble ring shall be 
in contact with the mudline for the full circumference of the ring. The 
weights attached to the bottom ring shall ensure 100 percent mudline 
contact. No parts of the ring or other objects shall prevent full 
mudline contact.
    A performance test of the bubble curtain shall be conducted prior 
to initial use for impact pile driving. The performance test shall 
confirm the calculated pressures and flow rates at each manifold ring. 
The contractor shall also train personnel in the proper balancing of 
air flow to the bubblers. The contractor shall submit an inspection/
performance report to the Navy for approval within 72 hours following 
the performance test. Corrections to the noise attenuation device to 
meet the performance stands shall occur prior to use for impact 
driving.
    Soft-Start--During impact driving the Navy is required to initiate 
sound from the hammer at reduced energy followed

[[Page 74993]]

by a 30 second waiting period, then two subsequent reduced energy 
strike sets.
    A soft-start procedure will be used for impact pile driving at the 
beginning of each day's in-water pile driving or any time impact pile 
driving has ceased for more than 30 minutes.
    Establishment of Shutdown Zones and Disturbance Zones--For all 
impact and vibratory pile driving of piles, shutdown and disturbance 
zones will be established and monitored. All shutdown and disturbance 
zones remain the same as those included in the initial IHA, except for 
the shutdown zone for harbor seals during impact driving of steel piles 
for which the modifications are described below. The Navy will focus 
observations within 1,000 m for all species during these activities but 
will record all observations. During impact driving of concrete piles 
the Navy will focus on monitoring within 100 m but will record all 
observations. The Navy will monitor and record marine mammal 
observations within zones and extrapolate these values across the 
entirety of the Level B zone as part of the final monitoring report. To 
the extent possible, the Navy will record and report on any marine 
mammal occurrences, including behavioral disturbances, beyond 1,000 m 
for steel pile installation and 100 m for concrete pile installation.
    The shutdown zones are based on the distances from the source 
predicted for each threshold level. Although different functional 
hearing groups of cetaceans and pinnipeds were evaluated, the threshold 
levels used to develop the disturbance zones were selected to be 
conservative for cetaceans (and therefore at the lowest levels); as 
such, the disturbance zones for cetaceans were based on the high 
frequency threshold (harbor porpoise). The shutdown zones are based on 
the maximum calculated Level A harassment radius for pinnipeds and 
cetaceans during installation of 36-inch steel and concrete piles with 
impact techniques, as well as during vibratory pile installation and 
removal. These actions serve to protect marine mammals, allow for 
practical implementation of the Navy's marine mammal monitoring plan 
and reduce the risk of a take. The shutdown zone during any non-pile 
driving activity will always be a minimum of 10 m (33 ft) to prevent 
injury from physical interaction of marine mammals with construction 
equipment.
    During impact pile driving of steel piles, the shutdown, Level A, 
and Level B zones as shown in Table 3 will be monitored out to the 
greatest extent possible with a focus on monitoring within 1,000 m for 
steel pile and 100 m for concrete pile installation.
    The Navy's IHA allows for the modification of shutdown zones if 
hydroacoustic monitoring is conducted. The Navy conducted a SSV test 
since the initial IHA was issued and it indicates that the Level A 
harassment isopleth for harbor seals occurs at 92 m instead of 217 m. 
Therefore, at the Navy's request and with concurrence from NMFS, the 
shutdown zone has been reduced from 220 m to 95 m during impact driving 
of all steel piles (i.e., both 36-in and 24-in steel piles). This is 
the only change to Level A or Level B harassment zone size proposed as 
part of this modified IHA.

        Table 3--Shutdown, Level A, and Level B Harassment Isopleths During Impact Driving of Steel Piles
----------------------------------------------------------------------------------------------------------------
         Marine mammal group               Level B isopleth         Level A isopleth          Shutdown zone
----------------------------------------------------------------------------------------------------------------
Cetaceans............................  541 meters.............  740 meters.............  750 meters.
Harbor Seal..........................  541 meters.............  92 meters..............  95 meters.
Sea Lions............................  541 meters.............  12 meters..............  15 meters.
----------------------------------------------------------------------------------------------------------------

    The shutdown, Level A, and Level B isopleths for all other impact 
driving remains unchanged from the notice of the issuance of the 
initial IHA (83 FR 30406; June 28, 2018).
    The reduced size of the shutdown zone for harbor seals along with 
the increase in authorized take by Level A harassment should preclude 
the Navy from exceeding its authorized take limit for this species. 
However, even with a 95-m shutdown zone during impact driving and a 30-
m shutdown zone during vibratory driving, it is highly likely that the 
Navy will continue to experience frequent work stoppages due to 
frequent visits by habituated harbor seals. This will result in 
continued schedule delays and cost overruns and may potentially require 
an extra year of in-water construction activities. Given this 
information, it is not practicable for the Navy to shut down or delay 
pile driving activities every time a harbor seal is observed in a 
shutdown zone.
    Therefore, shutdowns will be initiated for harbor seals when 
observed approaching or entering the Level A harassment zones as 
described above, except when one or more of the three habituated harbor 
seals identified as daily visitors approaches or enters an established 
shutdown zone. In such cases, a single take by Level A harassment shall 
be recorded for each individual seal for the entire day and operations 
will be allowed to continue without interruption. The behavior of these 
three daily visitors will be monitored and recorded as well as the 
duration of time spent within the harassment zones. This information 
will be recorded individually for each of the three seals. If any other 
seals, including the five habituated seals identified as frequent 
visitors, approaches or enters into a Level A harassment zone, shutdown 
must occur.
    The minimum shutdown zone during any pile driving activity will 
always be a minimum of 10 m (33 ft). Shutdown is mandatory whenever an 
animal is within 10 m of pile driving location regardless of the 
exception noted above. In such instances, in-water pile driving 
operations may only continue after 15 minutes have passed or the animal 
is seen heading away from the 10-m shutdown zone.
    The revisions in the mitigation, including the shutdown exception 
for habituated harbor seals, are necessary to allow for the practicable 
completion of the Navy's specified activities. Although the predicted 
Level A harassment take numbers are higher than initially projected 
because of the behavior of the eight habituated animals, the likelihood 
of Level A take of other individuals is lower than initially expected 
because the Level A harassment zone is smaller than initially predicted 
based on the new SSV. NMFS has considered the revised mitigation 
measures for harbor seals and determined that they will effect the 
least practicable adverse impact on harbor seals and their habitat. 
Nothing has changed since the initial IHA for other species or stocks 
and our analysis and conclusions remain the same.
    Visual Monitoring--Monitoring must be conducted by qualified 
protected PSOs with minimum qualifications described in the Federal 
Register notice of the issuance of the initial IHA (83 FR 30406; June 
28, 2018). During pile driving, there will be three-five PSOs working 
depending on the location, site

[[Page 74994]]

accessibility and line of sight for adequate coverage.
    Reporting--PSOs must record specific information as described in 
the Federal Register notice of the issuance of the initial IHA (83 FR 
30406; June 28, 2018). Within 90 days after completion of pile driving 
and removal activities, the Navy must provide NMFS with a monitoring 
report which includes summaries of recorded takes and estimates of the 
number of marine mammals that may have been harassed. If no comments 
are received from NMFS within 30 days, the draft final report will 
constitute the final report. If comments are received, a final report 
addressing NMFS comments must be submitted within 30 days after receipt 
of comments.
    In the unanticipated event that: (1) The specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury, serious injury or mortality; (2) an 
injured or dead animal is discovered and cause of death is known; or 
(3) an injured or dead animal is discovered and cause of death is not 
related to the authorized activities, the Navy will follow the 
protocols described in the Section 3 of Marine Mammal Monitoring Report 
(Appendix D of the application).
    Based on our evaluation of the applicant's measures in 
consideration of the increased estimated take for harbor seals, as well 
as the modified shutdown provisions for harbor seals, NMFS has re-
affirmed the determination that the required mitigation measures 
provide the means effecting the least practicable impact on harbor 
seals and their habitat.

Preliminary Determinations

    With the exception of the revised harbor seal shutdown provisions, 
the Navy's in-water construction activities as well as monitoring and 
reporting requirements are unchanged from those in the initial IHA. The 
effects of the activity on the affected species and stocks, taking into 
consideration the modified mitigation and related monitoring measures, 
remain unchanged, notwithstanding the increase to the authorized amount 
of harbor seal take by Level A harassment. The nature of the pile 
driving project precludes the likelihood of serious injury or 
mortality. While injury could occur in a small group of habituated 
animals (eight or fewer), it would likely be limited to PTS at lower 
frequencies where pile driving energy is concentrated, and unlikely to 
result in significant impacts to individual fitness, reproduction, or 
survival of these individuals whose best hearing is in a higher 
frequency range.
    With approximately 80 in-water construction days remaining, NMFS is 
proposing to increase authorized harbor seal take by Level A harassment 
to 445. Even in consideration of the increased numbers of take by Level 
A harassment, the impacts of these exposures, as noted above, may 
result in moderate injury to a limited number of harbor seals but are 
not expected to accrue to the degree that the fitness of any 
individuals is markedly impacted. Further, given the small number of 
individuals potentially impacted in this manner, no impacts on annual 
rates of recruitment or survival are likely to result.
    Separately, as described previously, the increase in Level A 
harassment take corresponds to a commensurate decrease in the predicted 
number of Level B harassment and the total number of takes remains 
unchanged. Therefore, we re-affirm that small numbers of harbor seals 
will be taken relative to the population size of the Hood Canal stock 
of harbor seal.
    In conclusion, there is no new information suggesting that our 
negligible impact analysis or finding for harbor seals should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily reaffirmed the following: (1) The 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) small numbers of marine mammals will be 
taken relative to the affected stock abundances; and (4) the Navy's 
activities will not have an unmitigable adverse impact on taking for 
subsistence purposes, as no relevant subsistence uses of marine mammals 
are implicated by this action; and (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

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 review our proposed action (i.e., the modification of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the issuance of the modified IHA 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Proposed Authorization

    NMFS proposes to modify the IHA to the Navy for in-water 
construction associated with the SPE project on Naval Base Kitsap 
Bangor, Washington effective until July 15, 2021. The only change is an 
increase in the authorized take of harbor seal take by Level A 
harassment from 125 to 445. A draft of the proposed modified IHA can be 
found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Request for Public Comments

    We request comment on our proposed modification of the IHA for the 
Navy's in-water construction activities associated with the SPE 
project. We also request comment on the potential for renewal of this 
modified IHA as described in the paragraph below. Please include with 
your comments any supporting data or literature citations to help 
inform our final decision on the request for MMPA authorization or 
subsequent Renewal IHA.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
Renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical, or nearly identical, activities as described in the 
Description of the Proposed Activity and Anticipated Impacts section of 
this notice is planned or (2) the activities as described in the 
Description of the Proposed Activity and Anticipated Impacts section of 
this notice would not be completed by the time the IHA expires and a 
Renewal would allow for completion of the activities beyond that

[[Page 74995]]

described in this notice, provided all of the following conditions are 
met:
     A request for renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for Renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: November 19, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-25953 Filed 11-23-20; 8:45 am]
BILLING CODE 3510-22-P