[Federal Register Volume 86, Number 135 (Monday, July 19, 2021)]
[Notices]
[Pages 38025-38033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15238]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB149]


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

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

ACTION: Notice; request for comments on proposed renewal incidental 
harassment authorization.

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SUMMARY: NMFS received a request from the United States Navy (Navy) for 
the renewal of their currently active incidental harassment 
authorization (IHA) to take marine mammals incidental to the Service 
Pier Extension (SPE) Project at Naval Base Kitsap Bangor in Silverdale, 
Washington. These activities are identical with activities that were 
covered by the current authorization, but will not be completed prior 
to its expiration. Pursuant to the Marine Mammal Protection Act, prior 
to issuing the currently active IHA, NMFS requested comments on both 
the proposed IHA and the potential for renewing the initial 
authorization if certain requirements were satisfied. The renewal 
requirements have been satisfied, and NMFS is now providing an 
additional 15-day comment period to allow for any additional comments 
on the proposed renewal not previously provided during the initial 30-
day comment period.

DATES: Comments and information must be received no later than August 
3, 2021.

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

[[Page 38026]]

information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, renewal request, 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/action/incidental-take-authorization-service-pier-extension-project-naval-base-kitsap-bangor. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (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 proposed or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization is 
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 here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed 
modification IHA (85 FR 74989; November 24, 2020), NMFS described the 
circumstances under which we would consider issuing a renewal for this 
activity, and requested public comment on a potential renewal under 
those circumstances. Specifically, 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 Detailed Description of Specified 
Activities section of the initial IHA issuance notice is planned or (2) 
the activities as described in the Detailed Description of Specified 
Activities section of the initial IHA issuance notice would not be 
completed by the time the initial IHA expires and a renewal would allow 
for completion of the activities beyond that described in the DATES 
section of the notice of issuance of the initial IHA, provided all of 
the following conditions are met:
    (1) 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).
    (2) The request for renewal must include the following:
     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).
     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.
    (3) 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.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested renewal, and agency responses will be 
summarized in the final notice of our decision.

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 issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental harassment authorizations 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 determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review.

History of Request

    On June 28, 2018, NMFS published a notice of our issuance of an IHA 
to the United States Navy (Navy) authorizing take of five species of 
marine mammals by Level A and Level B harassment incidental to the pile 
installation and removal activities (by impact pile driving and 
vibratory pile driving) for the Service Pier Extension (SPE) Project at 
Naval Base Kitsap Bangor in Silverdale, Washington (83 FR 30406). 
Species authorized for take included killer whales (Orcinus orca; 
transient stock only), harbor porpoise (Phocoena phocoena vomerina), 
California sea lions (Zalophus californianus), Steller sea lions 
(Eumetopias jubatus monteriensis), and harbor seals (Phoca vitulina 
richardii). The effective dates of

[[Page 38027]]

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 (83 FR 30406; June 28, 2018) had occurred and no marine 
mammals had been taken during the effective dates of the original IHA, 
and 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 
no other changes. NMFS re-issued this IHA on July 3, 2019 (84 FR 
31844).
    On October 14, 2020, NMFS received a request from the Navy for a 
modification to the re-issued IHA due to an elevated harbor seal take 
rate. The Navy felt that without an increase in authorized take of 
harbor seals, they would be forced to repeatedly shutdown whenever 
animals entered into the specified Level A harassment zones. This would 
likely prolong the duration of in-water construction activities and add 
increased costs to the project. Following a 30-day public comment 
period, NMFS issued a modified IHA, including revisions to mitigation 
and increased authorized takes by Level A harassment for harbor seals 
(85 FR 86538, December 30, 2020), and kept the same July 15, 2021 
expiration date that was initially published in the reissuance (84 FR 
31844; July 3, 2019).
    On April 26, 2021, NMFS received an application for a renewal of 
the current IHA (85 FR 86538; December 30, 2020). As described in the 
application for renewal IHA, the activities for which incidental take 
is requested consist of activities that are covered by the modified IHA 
but will not be completed prior to its expiration, and the take 
estimates for all species are based on the 2018 initial IHA and 
subsequent 2020 modification (for harbor seals only). As required, the 
applicant also provided a preliminary monitoring report (available at 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-service-pier-extension-project-naval-base-kitsap-bangor) which confirms 
that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted. This application was considered adequate and 
complete on June 15, 2021.
    Worth noting and as stated above, NMFS has previously issued an IHA 
and subsequent reissuances and modifications to the Navy for the subset 
of activities contained in the Navy's 2021 renewal IHA request. Because 
the full scope of activities were originally addressed in the initial 
2018 IHA (83 FR 30406; June 28, 2018) and the 2020 modified IHA (85 FR 
86538), any discussion regarding the scope of analysis and evaluations 
in this document relating specifically to the issuance of the renewal 
are explained in more detail in the initial IHA (83 FR 30406; June 28, 
2018), in the subsequently proposed modified (85 FR 74989; November 24, 
2020), and in the final modified IHA (85 FR 86538; December 30, 2020).

Description of the Specified Activities and Anticipated Impacts

    The Navy will be unable to complete all the planned work during the 
160-day in-water work window (125 days for the steel pile installation 
and extraction using a combination of vibratory and impact methods, and 
35 days for the concrete impact pile installation) described in the 
2018 IHA at Naval Base Kitsap Bangor before the expiration date of July 
15, 2021. Therefore, they have requested a renewal IHA to authorize 
take of marine mammals for the subset of the initially planned work 
that is not expected to be completed.
    As described in the renewal application and conducted under the 
IHAs to date, the Navy planned to install 203 36-inch (90 centimeter 
(cm)) diameter steel piles and 50 24-inch (60 cm) diameter steel pipe 
support piles). Both of these would have been completed using vibratory 
and impact ``proofing'' methods (using an impact hammer to test the 
functionality of the pile installation). The Navy also planned to 
temporarily install and subsequently extract 27 36-inch (90 cm) 
diameter steel falsework piles by vibratory hammer with impact 
``proofing''. Thirty-six creosote timber piles (19 18-inch (45 cm) 
diameter and 17 15-inch (38 cm) diameter piles) would have been removed 
using a vibratory hammer. Lastly, 103 18-inch (45 cm) square concrete 
fenders piles would have been installed via impact pile driving. The 
Monitoring Report submitted by the Navy described only a fraction of 
these activities of which take was authorized under the current IHA 
occurred, as determined by their project engineers. These include the 
removal of 22 18-inch creosote-treated timber piles, the installation 
of 11 24-inch steel piles for the small craft and mooring dolphins, and 
the installation of 176 36-inch steel piles for the pier and wave 
screen attachment.
    The only work that remains is the installation of the 103 18-inch 
square concrete fender piles by impact pile driving. These activities 
were not able to occur during the current IHA. The Navy expects that 
this will require 35 days during a specified in-water work window (July 
16 through January 15) during the year allowed by the renewal IHA. This 
work window is the same as discussed in the 2018 IHA where work is 
targeted to avoid conducting activities when ESA-listed juvenile 
salmonids are likely to be present in the area (February-July; USACE, 
2015).
    The mitigation and monitoring would be identical to that included 
in the 2018 IHA (83 FR 30406; June 28, 2018), with the exception of 
specified shutdown parameters due to the presence of harbor seals added 
in the modified IHA (85 FR 86538; December 30, 2020). All documents 
associated with the 2018 IHA (i.e., the IHA application, the proposed 
IHA, the public comments, the final IHA, references, and the monitoring 
reports) can be found on NMFS's website: https://www.fisheries.noaa.gov/action/incidental-take-authorization-service-pier-extension-project-naval-base-kitsap-bangor. All documents 
associated with the subsequent reissuances and modifications (Federal 
Register notices, draft and final IHAs, and public comments) can be 
found at this location.
    Anticipated impacts, which would include both Level A and Level B 
harassment of marine mammals, would also be identical to those analyzed 
and authorized in the 2018 IHA (though fewer, since this project is 
comprised of a subset of activities). Species with the expected 
potential to be present during all or a portion of the in-water work 
window include the killer whale, the harbor porpoise, the California 
sea lion, the Steller sea lion, and the harbor seal. Monitoring results 
from the 2020-2021 construction activities (Table 1) indicate that 
observed exposures above Level A and Level B harassment thresholds were 
below the amount authorized in association with the amount of work 
conducted (see the Marine Mammal Monitoring Report on NMFS's website). 
Thus, a subset of Level A and Level B harassment takes remaining from 
those authorized under the 2018 IHA (and subsequent reissuances and 
modifications) will be sufficient to cover the 2021-2022 concrete pile 
installation activities during the 2021 renewal IHA.

[[Page 38028]]



 Table 1--Take Authorized by Species and Stock in 2020-2021 IHA and Observed Take in the 2020-2021 Construction
                                                     Window
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                                                    Authorized      Authorized
                                                      Level A         Level B     Observed Level  Observed Level
            Species                   Stock         harassment      harassment     A  harassment   B  harassment
                                                       takes           takes           takes           takes
----------------------------------------------------------------------------------------------------------------
Killer whale..................  West coast                     0              48               0           \2\ 0
                                 transient.
Harbor porpoise...............  Washington                     0           2,728               0             451
                                 inland waters.
California sea lion...........  United States...               0           7,816               0             251
Steller sea lion..............  Eastern United                 0             503               0              16
                                 States.
Harbor seal...................  Hood Canal......         \1\ 509       \1\ 5,216             129             429
----------------------------------------------------------------------------------------------------------------
\1\ Changed per public comments addressed on the notice of the final modified IHA (85 FR 86538; December 30,
  2020).
\2\ Observed by Protected Species Observers (PSOs; also referred to as Marine Mammal Observers (MMOs) in the
  2018 IHA) outside of pile driving and removal activities; subsequently not taken during this project. Further
  information on Marine Mammal Monitoring Report can be found on NMFS's website.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed here may be found in the notices of the proposed and 
final IHAs for the 2018 authorization. The work would be identical to a 
subset of the activities analyzed in the 2018 IHA and include impact 
pile driving for the installation of concrete piles.
    All piles for which take was originally authorized in the 2018 IHA 
were expected to be installed/removed during the 2020-2021 in-water 
work window from July 16 through January 15. Vibratory pile driving 
activities (i.e., pile removal) began on July 16, 2020. Impact pile 
driving began on September 11, 2020. However, due to construction 
schedule delays, designated work was only conducted on a portion of 
those days designated for pile installation and/or extraction during 
the 2018 IHA. Observers were on site for a total of 99 days, of which 
95 of those days contained monitoring effort (644 hours; inclusive of 
periods of active pile driving and periods between pile driving 
events). Observers did not conduct monitoring on October 21, 2020 or on 
the 14th, 15th, and 16th of September 2020 because no pile driving 
occurred on those dates. The Marine Mammal Monitoring Report states 
that monitoring days were limited due to low visibility from local 
wildfires in the area. Further information can be found in the 
Monitoring Report on NMFS's website.
    Table 2 shows the activities under the 2018 IHA (and subsequent 
reissuance and modification) that were completed from the 2020-2021 
construction period and the subset of work that remains for the 2021-
2022 construction period under this renewal IHA. The concrete pile 
driving activities would be timed to occur within the standard NMFS 
work window for Endangered Species Act (ESA)-listed fish species (July 
16 through January 15).

 Table 2--Pile Installations Completed During the 2020-2021 Construction Period Under the Reissued IHA (84 FR 31844; July 3, 2019) and Remaining Subset
                                          Planned for the 2021-2022 Construction Window During the Renewal IHA
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                                                                                                                             Number of    Number of pile
                                                        Pile installation    Numbers of      Number of piles  completed        piles       driving days
       SPE project feature             Pile type        and/or extraction  piles included         during 2020-2021         requested for   for 2021-2022
                                                             method          in 2018 IHA      construction period \2\      2021 renewal    construction
                                                                                                                            application       period
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Pile removal from existing wave   15-inch (38 cm) to   Vibratory.........              36  22 (18-inch only)............               0               0
 screen and pier.                  18-inch (45 cm)
                                   creosote-treated
                                   timber.
Temporary Falsework.............  36-inch steel (30    Vibratory                       27  0............................               0               0
                                   cm).                 installation and
                                                        removal with
                                                        potential
                                                        ``proofing''.
Small craft mooring and dolphins  24-inch steel (60    Vibratory with                  50  11...........................               0               0
                                   cm).                 ``proofing''.
Pier and wave screen attachment.  36-inch steel (90    Vibratory with                 203  176..........................               0               0
                                   cm).                 ``proofing''.
Fender piles....................  18-in concrete (45   Impact............             103  0............................             103              35
                                   cm).
                                                                          ------------------------------------------------------------------------------
    Total.......................  ...................  ..................             419  \1\ 209......................             103              35
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\1\ Some of these piles were installed and some were removed per the specific project activity. Some of the total piles were temporarily installed and
  subsequently removed after installation. A total of 209 piles were utilized in construction activities during 2020-2021, in which 187 piles were
  installed, 22 piles were removed, and 0 piles were installed temporarily and then subsequently removed.
\2\ Per the Navy's submitted Monitoring Report, not all piles for which take was originally authorized were installed or removed.

    The proposed renewal would be effective from the date of issuance 
to July 15, 2022. A detailed description of the impact pile 
construction activities for which take is proposed here may be found in 
the notices of the proposed and final IHAs for the initial 
authorization. The location, timing, and nature of the activities, 
including the types of

[[Page 38029]]

equipment planned for use, 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 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
notices of the proposed and final IHAs for the initial authorization. 
NMFS has reviewed the monitoring data from the initial 2018 IHA, recent 
draft Stock Assessment Reports (SARs), information on relevant Unusual 
Mortality events, and other scientific literature, and determined that 
neither this nor any new information affects which species or stocks 
have the potential to be affected or the pertinent information in the 
Description of the Marine Mammals in the Area of Specified Activities 
contained in the supporting documents for the 2018 IHA. The only 
changes from the 2018 IHA are an increase in the stock abundance of 
west coast transient killer whales (from 243 in 2009 to 349 in 2018), a 
decrease in the abundance of United States stock California sea lions 
(from 296,750 in 2011 to 257,606 in 2014), and an increase in the stock 
abundance of Steller sea lions of the eastern United States stock (from 
41,638 in 2015 to 43,201 in 2017) (Carretta et al., 2018, Muto et al., 
2019, Muto et al., 2020). Preliminary determinations concluded from 
this updated information do not change the findings or conclusions from 
the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the notices of the proposed and final 
IHAs for the initial 2018 authorization. NMFS has reviewed the 
monitoring data from the reissued IHA (83 FR 30406; June 28, 2018) and 
the modified IHA (85 FR 86538; December 30, 2020), recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and other scientific literature, and determined that neither this nor 
any other new information affects our initial analysis of impacts on 
marine mammals and their habitat.

Estimated Take

    As stated above in the Description of the Specified Activities and 
Anticipated Impacts section, the purpose of this renewal IHA is to 
authorize take of marine mammals for the subset of the initially 
planned work that could not be completed before the expiration of the 
current IHA (July 15, 2021). The work completed in 2020-2021 and the 
subset that is left to be completed during the 2021-2022 construction 
window is listed in Table 2.
    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed (83 FR 10689; March 12, 2018) and final (83 FR 30406; June 28, 
2018) IHAs for the initial authorization, and for Level A harassment of 
harbor seals in the subsequent 2020 modification (85 FR 86538; December 
30, 2020). Specifically, the source levels, days of operation (specific 
to the 35-days for the concrete pile installation), and marine mammal 
density and occurrence data applicable to this authorization remain 
unchanged from the previously issued IHA and modification, just the 
new, lesser remaining level of activity has been applied. Similarly, 
the stocks taken, methods of take, and types of take remain unchanged 
from the previously issued 2018 IHA. The only difference would be the 
take numbers to be authorized during the 2021-2022 project, which would 
be composed of a subset of take previously authorized per the previous 
methods discussed in the 2018 IHA and subsequent modification.
    Of note, as described in the notice of the proposed (85 FR 74989; 
November 24, 2020) and final modified IHA (85 FR 86538; December 30, 
2020), at the time of the modification, PSOs had reported up to eight 
individually identifiable harbor seals that were frequenting the 
project site and believed to be habituated by varying degrees to in-
water construction activities. The Navy's recent Monitoring Report for 
work conducted under the reissued and modified IHAs reported nine 
individually identifiable harbor seals; however, in consideration of 
the Navy's monitoring data overall, NMFS expects that the previous 
Level A harassment take calculation for harbor seals was already 
conservative, and did not recalculate using an estimated nine Level A 
harassment takes per day.
    These proposed amounts of Level A and Level B harassment are 
indicated below in Table 3.

      Table 3--Proposed Take of Marine Mammal Stocks and Percentage of Stock or Population for the Renewal IHA During the 2021-2022 Project Period
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Proposed        Proposed      Percent of stock proposed to
                                                                                            authorized      authorized               be taken
               Species                      Scientific name               Stock               Level A         Level B    -------------------------------
                                                                                            harassment      harassment        Level A         Level B
                                                                                               take            take         harassment      harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale.........................  Orcinus orca............  West coast transient...               0               0               0           \3\ 0
Harbor porpoise......................  Phocoena phocoena         Washington inland                     0               0               0           \3\ 0
                                        vomerina.                 waters.
California sea lion..................  Zalophus californianus..  United States..........               0           1,710               0             0.7
Steller sea lion.....................  Eumetopias jubatus        Eastern United States..               0             110               0             0.3
                                        monteriensis.
Harbor seal..........................  Phoca vitulina richardii  Hood Canal.............         \1\ 280           1,225         \2\ n/a         \2\ n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Level A harassment take is associated with impact pile driving of the 18-inch concrete square pile, which was not conducted in 2020-2021 as planned
  and is part of the subset of work to be completed in 2021-2022.
\2\ Because the stock information is not considered current, there are no minimum abundance estimates to use for calculation.
\3\ Take of harbor porpoise and killer whale was included in the 2020 modified IHA (85 FR 86538; December 30, 2020); however, we do not take of either
  species to occur as a result of the remaining work that would be conducted under this renewal IHA.


[[Page 38030]]

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Federal Register notice announcing the issuance of the 
modified IHA (85 FR 86538; December 30, 2020), and the discussion of 
the least practicable adverse impact included in that document and the 
Notices of the proposed IHAs remains accurate. This IHA, if issued, 
would be valid from the date of issuance through July 15, 2022 with 
construction activities occurring only during the pre-designated work 
window (July 16 through January 15). The following requirements, 
mitigation measures, monitoring, and reporting requirements are 
proposed for this renewal, as were previously included in the initial 
IHA and subsequent modification:
    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 presence (USACE, 2015), July 16 
to 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 after sunset, to protected foraging marbled murrelets 
during the nesting season (April 15-September 23). Sunrise and sunset 
are to be determined based on National Oceanic and Atmospheric 
Administration data, which can be found at http://www.srrb.noaa.gov/highlights/sunrise/sunrise.html.
    Soft-Start--The use of a soft start procedure is believed to 
provide additional protection to marine mammals by warning or providing 
a chance to leave the area prior to the hammer operating at full 
capacity, and typically involves a requirement to initiate sound from 
the hammer at reduced energy followed by a 30 second waiting period, 
then two subsequent reduced energy strike sets. (The reduced energy of 
an individual hammer cannot be quantified because it varies by 
individual drivers. Also, the number of strikes will vary at reduced 
energy because raising the hammer at less than full power and then 
releasing it results in the hammer ``bouncing'' as it strikes the pile, 
resulting in multiple ``strikes.'')
    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--To the 
extent possible, the Navy will record and report on any marine mammal 
occurrences, including behavioral disturbances, beyond 100 m for 
concrete pile installation. The Navy will monitor and record marine 
mammal observations within zones and extrapolate these values across 
the entirety of the Level B harassment zone as part of the final 
monitoring report.
    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 concrete piles with impact techniques. 
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 meters (m; 33 feet (ft)) to 
prevent injury from physical interaction of marine mammals with 
construction equipment.
    During all pile driving, the shutdown, Level A harassment, and 
Level B harassment zones as shown in Table 4 will be monitored out to 
the greatest extent possible with a focus on monitoring within 100 m 
for concrete pile installation.
    The isopleths delineating shutdown, Level A harassment, and Level B 
harassment zones during impact driving of all concrete piles are shown 
in Table 4. The shutdown, Level A harassment, and Level B harassment 
isopleths for concrete impact driving remain unchanged from the notice 
of the issuance of the initial IHA (83 FR 30406; June 28, 2018). Note 
that the Shutdown Zone is larger than the Level A harassment isopleth 
which is larger than the Level B harassment isopleth for cetaceans, and 
that the Shutdown Zone is larger than the Level A harassment isopleth 
for harbor seals and sea lions.

 Table 4--Shutdown, Level A Harassment, and Level B Harassment Isopleths During Impact Driving of Concrete Piles
----------------------------------------------------------------------------------------------------------------
                                           Level B         Level A
                                         harassment      harassment     Shutdown zone   Minimum monitoring zone
         Marine mammal group              isopleth        isopleth        (meters)        for  concrete piles
                                          (meters)        (meters)
----------------------------------------------------------------------------------------------------------------
Cetaceans \1\........................              46              74             100  100 meters.\2\
Harbor seal..........................              46              19              35
Sea Lions............................              46               1              15
----------------------------------------------------------------------------------------------------------------
\1\ The take of harbor porpoise and killer whale was included in the 2020 modified IHA (85 FR 86538; December
  30, 2020); however, we do not take of either species to occur as a result of the remaining work that would be
  conducted under this renewal IHA. Because of this, the Level A and B harassment isopleths and the Shutdown
  Zone for cetaceans is not likely to be relevant for this project.
\2\ The Navy has noted in their renewal application that they will be monitoring a 100 meter radii from the
  project site, as practicable, in addition to the specified Level A and B harassment isopleths and the Shutdown
  Zone for each marine mammal group.

    Further, note that the radii of the disturbance zones may be 
adjusted if in-situ acoustic monitoring is conducted by the Navy to 
establish actual distances to the thresholds for a specific pile type 
and installation method. However, any proposed acoustical monitoring 
plan must be pre-approved by NMFS. The results of any acoustic 
monitoring plan must be reviewed and approved by NMFS before the radii 
of any disturbance zones may be revised.
    As described above, and in the notice proposed (85 FR 74989; 
November 24, 2020) and final modified IHA (85 FR 86538; December 30, 
2020), at the time of the modification to the initial IHA, PSOs had 
reported up to eight

[[Page 38031]]

individually identifiable harbor seals that were frequenting the 
project site and believed to be habituated by varying degrees to in-
water construction activities. Based on the preliminary monitoring 
report provided by the Navy with their renewal application, a ninth 
seal has been noted in the area; however this seal has not been noted 
as an individual seen ``daily'' and therefore not necessitated any 
changes to the harbor seal-specific mitigation measures mentioned 
below.
    Even with a 35 m shutdown zone during impact driving, the Navy is 
still concerned that they would experience frequent work stoppages due 
to frequent visits by habituated harbor seals. This could result in 
continued schedule delays and cost overruns and could potentially 
require an extra year of in-water construction activities. Given this 
information, the Navy has indicated that it is not practicable for them 
to shut down or delay pile driving activities every time a harbor seal 
is observed in a shutdown zone. Therefore, they have proposed to apply 
identical measures to those in the modified IHA (85 FR 86538; December 
30, 2020), in which 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; although the Navy 
must still shut down for these harbor seals if they occur within 10 m 
of the pile-driving site. 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 mitigation measures described above should reduce marine 
mammals' potential exposure to underwater noise levels which could 
result in injury or behavioral harassment. Based on our evaluation of 
the applicant's proposed measures, as well as other measures considered 
by NMFS, NMFS has preliminarily determined that the proposed mitigation 
measures provide the means effecting the least practicable impact on 
the affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring Measures

    Visual monitoring--PSOs will be positioned at the best practicable 
vantage points, taking into consideration security, safety, and space 
limitations. Each PSO location will have a minimum of one dedicated PSO 
(not including boat operators). There will be 3-5 PSOs working 
depending on the location, site accessibility and line of sight for 
adequate coverage. Additional standards required for visual monitoring 
include:
    (a) Independent observers (i.e., not construction personal) are 
required;
    (b) At least one observer must have prior experience working as an 
observer;
    (c) Other observers may substitute education (degree in biological 
science or related field) or training for experience;
    (d) 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; and
    Monitoring will be conducted by qualified observers, who will 
monitor for marine mammals and implement shutdown/delay procedures when 
applicable by calling for the shutdown to the hammer operator. 
Qualified observers are trained biologists, with the following minimum 
qualifications:
    (a) 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;
    (b) Advanced education in biological science or related field 
(undergraduate degree or higher required);
    (c) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
    (d) Experience or training in the field identification of marine 
mammals, including the identification of behaviors;
    (e) Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    (f) Writing skills sufficient to prepare a report of observations 
including but not limited to the number and species of marine mammals 
observed; dates and times when in-water construction activities were 
conducted; dates and times when in-water construction activities were 
suspended to avoid potential incidental injury from construction sound 
of marine mammals observed within a defined shutdown zone; and marine 
mammal behavior; and
    (g) Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    PSOs will survey the disturbance zone 15 minutes prior to 
initiation of pile driving through 30 minutes after completion of pile 
driving to ensure there are no marine mammals present. In case of 
reduced visibility due to weather or sea state, the PSOs must be able 
to see the shutdown zones or pile driving will not be initiated until 
visibility in these zones improves to acceptable levels. MMO Record 
forms (Appendix A of the original 2018 application; see NMFS's website) 
will be used to document observations. Survey boats engaged in marine 
mammal monitoring will maintain speeds equal to or less than 10 knots.
    PSOs will use binoculars and the naked eye to search continuously 
for marine mammals and will have a means to communicate with each other 
to discuss relevant marine mammal information (e.g., animal sighted but 
submerged with direction of last sighting). PSOs will have the ability 
to correctly measure or estimate the animals distance to the pile 
driving equipment such that records of any takes are accurate relevant 
to the pile size and type.
    Shutdown shall occur if a species for which authorization has not 
been granted or for which the authorized numbers of takes have been 
met. The Navy shall then contact NMFS within 24 hours.
    If marine mammal(s) are present within or approaching a shutdown 
zone prior to pile driving, the start of these activities will be 
delayed until the animal(s) have left the zone voluntarily and have 
been visually confirmed beyond the shutdown zone, or 15 minutes has 
elapsed without re-detection of the animal.
    If animal is observed within or entering the Level B harassment 
zone during pile driving, a take would be recorded, behaviors 
documented. However, that pile segment would be completed without 
cessation, unless the animal approaches or enters the Shutdown Zone, at 
which point all pile driving activities will be halted. The PSOs shall 
immediately radio to alert the monitoring coordinator/construction 
contractor. This action will require an immediate ``all-stop'' on pile 
operations. Once a shutdown has been initiated, pile driving will be 
delayed until the

[[Page 38032]]

animal has voluntarily left the Shutdown Zone and has been visually 
confirmed beyond the Shutdown Zone, or 15 minutes have passed without 
re-detection of the animal (i.e., the zone is deemed clear of marine 
mammals).
    All marine mammals observed within the disturbance zones during 
pile driving activities will be recorded by PSOs. These animals will be 
documented as Level A harassment or Level B harassment takes as 
appropriate. Additionally, all shutdowns shall be recorded.
    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 project activities, the Navy will follow the protocols 
described in the Section 3 of Marine Mammal Monitoring Report (Appendix 
D of the original 2018 application).

Proposed Reporting

    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) and the modified IHA (85 FR 86538; December 30, 
2020). 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 project activities, the Navy will follow the protocols 
described in the Section 3 of Marine Mammal Monitoring Report (Appendix 
D of the application).

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA for 
the initial IHA (83 FR 10689; March 12, 2018) and modified IHA (85 FR 
74989; November 24, 2020) and solicited public comments on both our 
proposal to issue the initial IHA (83 FR 30406; June 28, 2018) and 
modified IHA (85 FR 86538; December 30, 2020) for pile driving and 
removal activities and on the potential for a renewal IHA, should 
certain requirements be met. All public comments were addressed in the 
notice announcing the issuance of the initial IHA (83 FR 30406; June 
28, 2018) and the modified IHA (85 FR 86538; December 30, 2020). Below, 
we describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
renewal of the 2018 IHA (83 FR 30406; June 28, 2018) and the modified 
IHA (85 FR 86538; December 30, 2020).
    Comment: The Commission requested clarification of certain issues 
associated with NMFS's notice that one-year renewals could be issued in 
certain limited circumstances and expressed concern that the renewal 
process, as proposed, would bypass the public notice and comment 
requirements. The Commission also suggested that NMFS should discuss 
the possibility of renewals through a more general route, such as a 
rulemaking, instead of notice in a specific authorization. The 
Commission further recommended that if NMFS did not pursue a more 
general route, that the agency provide the Commission and the public 
with a legal analysis supporting our conclusion that this process is 
consistent with the requirements of section 101(a)(5)(D) of the MMPA.
    Response: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019, and 85 FR 53342, August 28, 2020), NMFS 
has explained how the Renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
Renewal process.

Preliminary Determinations

    The proposed action of this renewal IHA for the installation of 
concrete piles by impact pile driving would be identical to a subset of 
the activities previously analyzed in the 2018 IHA (83 FR 30406; June 
28, 2018), as listed in Table 2. Based on the analysis detailed in the 
notice of the final IHA for the 2018 authorization and subsequent 2020 
modification, of the likely effects of the specified activity on marine 
mammals and their habitat, and taking into consideration the 
implementation of the monitoring and mitigation measures, NMFS found 
that the total marine mammal take from the activity will have a 
negligible impact on all affected marine mammal species or stocks.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA (83 FR 30406; June 28, 2018). This includes 
consideration of the estimated abundance of the stocks for Steller sea 
lions (Eastern United States) and killer whales (West Coast transient), 
increasing slightly, and the estimated abundance for the stock of 
California sea lions (United States) decreasing slightly. Based on the 
information and analysis contained here and in the referenced 
documents, NMFS has determined the following:
    (1) The required mitigation measures will effect the least 
practicable impact on marine mammal species or stocks and their 
habitat;
    (2) The authorized takes will have a negligible impact on the 
affected marine mammal species or stocks;
    (3) The authorized takes represent small numbers of marine mammals 
relative to the affected stock abundances;
    (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

    No incidental take of ESA-listed species is proposed for 
authorization 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.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to the Navy for conducting impact pile driving at 
Naval Base Kitsap Bangor in Silverdale, Washington during the in-water 
construction window of July 16 through January 15, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed and final initial IHA can be 
found at https://www.fisheries.noaa.gov/action/incidental-take-authorization-service-pier-extension-project-naval-base-kitsap-bangor. 
We request comment on

[[Page 38033]]

our analyses, the proposed renewal IHA, and any other aspect of this 
Notice. Please include with your comments any supporting data or 
literature citations to help inform our final decision on the request 
for MMPA authorization.

    Dated: July 14, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-15238 Filed 7-16-21; 8:45 am]
BILLING CODE 3510-22-P