Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Marine Structure Maintenance and Pile Replacement in Washington, 15963-15986 [2019-07513]

Download as PDF Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations (b) Identification of sources. The MOA and related Federal plan apply to all affected SSI units for which construction commenced on or before October 14, 2010. (c) Effective date of delegation. The delegation became fully effective on May 17, 2019. [FR Doc. 2019–06487 Filed 4–16–19; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 218 [Docket No. 170919913–9271–02] RIN 0648–BH27 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS, upon request of the U.S. Navy (Navy), hereby issues regulations to govern the unintentional taking of marine mammals incidental to conducting construction activities related to marine structure maintenance and pile replacement at facilities in Washington, over the course of five years. These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. DATES: Effective from May 17, 2019 through May 17, 2024. ADDRESSES: A copy of the Navy’s application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.fisheries.noaa.gov/ action/incidental-take-authorization-usnavy-marine-structure-maintenanceand-pile-replacement-wa. In case of problems accessing these documents, please call the contact listed below. FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected Resources, NMFS, (301) 427–8401. amozie on DSK9F9SC42PROD with RULES VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 Purpose and Need for Regulatory Action These regulations establish a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of marine mammals incidental to the Navy’s construction activities related to marine structure maintenance and pile replacement at facilities in Washington. We received an application from the Navy requesting five-year regulations and authorization to take multiple species of marine mammals. Take is expected to occur by Level A and Level B harassment incidental to impact and vibratory pile driving. Please see ‘‘Background’’ below for definitions of harassment. Legal Authority for the Action Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Marine Structure Maintenance and Pile Replacement in Washington SUMMARY: SUPPLEMENTARY INFORMATION: Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the ‘‘least practicable adverse impact’’ on the affected species or stocks and their habitat (see the discussion below in the ‘‘Mitigation’’ section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I, provide the legal basis for issuing this rule containing five-year regulations, and for any subsequent LOAs. As directed by this legal authority, the regulations contain mitigation, monitoring, and reporting requirements. Summary of Major Provisions Within the Regulations Following is a summary of the major provisions of the regulations regarding Navy construction activities. These measures include: • Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities. • Shutdown of construction activities under certain circumstances to avoid injury of marine mammals. • Soft start for impact pile driving to allow marine mammals the opportunity PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 15963 to leave the area prior to beginning impact pile driving at full power. Background Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 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, regulations are issued, and notice is provided to the public. An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. The MMPA states that the term ‘‘take’’ means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Except with respect to certain activities not pertinent here, the MMPA defines ‘‘harassment’’ as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Summary of Request On July 24, 2017, we received an adequate and complete request from the Navy for authorization to take marine mammals incidental to construction activities related to marine structure maintenance and pile replacement at six Naval installations in Washington inland waters. On August 4, 2017 (82 FR 36359), we published a notice of receipt of the Navy’s application in the Federal Register, requesting comments and information related to the request for thirty days. We received comments from Whale and Dolphin Conservation E:\FR\FM\17APR1.SGM 17APR1 15964 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations (WDC). The comments received from WDC were considered in development of the proposed rule and are available online at: www.fisheries.noaa.gov/ action/incidental-take-authorization-usnavy-marine-structure-maintenanceand-pile-replacement-wa. We subsequently published a notice of proposed rulemaking in the Federal Register on March 5, 2018 (83 FR 9366). Comments received during the public comment period on the proposed regulations are addressed in ‘‘Comments and Responses.’’ The Navy plans to conduct construction necessary for maintenance of existing in-water structures at the following facilities: Naval Base Kitsap (NBK) Bangor, NBK Bremerton, NBK Keyport, NBK Manchester, Zelatched Point, and Naval Station Everett (NS Everett). These repairs include use of impact and vibratory pile driving, including installation and removal of steel, concrete, plastic, and timber piles. Hereafter (unless otherwise specified or detailed) we use the term ‘‘pile driving’’ to refer to both pile installation and pile removal. The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in harassment of marine mammals. The Navy requests authorization to take individuals of 10 species by Level B harassment. Take by Level A harassment is anticipated only for the harbor seal. These regulations are valid for five years (2019–2024). amozie on DSK9F9SC42PROD with RULES Description of the Specified Activity Overview Maintaining existing wharfs and piers is vital to sustaining the Navy’s mission and ensuring readiness. To ensure continuance of necessary missions at the six installations, the Navy must conduct annual maintenance and repair activities at existing marine waterfront structures, including removal and replacement of piles of various types and sizes. The Navy refers to this program as the Marine Structure Maintenance and Pile Replacement (MPR) program. Exact timing and amount of necessary in-water work is unknown, but the Navy estimates replacing up to 822 structurally unsound piles over the 5-year period, including individual actions currently planned and estimates for future marine structure repairs. Construction will include use of impact and vibratory pile driving, including removal and installation of steel, concrete, plastic, and timber piles. Aspects of construction activities other than pile driving are not anticipated to have the VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 potential to result in incidental take of marine mammals because they are either above water or do not produce levels of underwater sound with likely potential to result in take of marine mammals. The Navy’s waterfront inspection program prioritizes deficiencies in marine structures and plans those maintenance and repairs for design and construction. The Navy’s planned activities include individual projects (where an existing need has been identified and funds have been requested) and estimates for emergent or emergency repairs. The latter are also referred to as contingency repairs. Estimates of activity levels for contingency repairs are based on Navy surveys of existing structures, which provide assessments of structure condition and estimates of numbers of particular pile types that may require replacement (at an assumed 1:1 ratio) over the 5-year duration of these regulations. Additional allowance is made for the likelihood that future waterfront inspections will reveal unexpected damage, or that damage caused by severe weather events and/or incidents caused by vessels will result in need for additional contingency repairs. LOAs could be issued for projects conducted at any of the six facilities if they fit within the structure of the programmatic analysis provided herein and are able to meet the requirements described in the regulations. The Navy will meet with NMFS on an annual basis prior to the start of in-water work windows to review upcoming projects, required monitoring plans, and the results of relevant projects conducted in the preceding in-water work window. The intent is to utilize lessons learned to better inform potential effects of future MPR activities and in any followup consultations. Dates and Duration These regulations are valid for a period of five years (2019–2024). The specified activities may occur at any time during the five-year period of validity of the regulations, subject to existing timing restrictions. These timing restrictions, or in-water work windows, are typically designed to protect fish species listed under the Endangered Species Act (ESA). For NBK Bangor and Zelatched Point (located in Hood Canal), in-water work may occur from July 16 through January 15. At the remaining four facilities (located in Puget Sound), in-water work may occur from July 16 through February 15. Impact or vibratory driving could occur on any work day within in-water work PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 windows during the period of validity of these regulations. For many projects the design details are not known; thus, it is not possible to state the number of pile driving days that will be required. Days of pile driving at each site were based on the estimated work days using a slow production rate, i.e., one pile removed per day and one pile installed per day for contingency pile driving and an average production rate of six piles per day for fender pile replacement. These conservative rates give the following estimates of total days at each facility over the 5-year duration: NBK Bangor, 119 days; Zelatched Point, 20 days; NBK Bremerton, 168 days; NBK Keyport, 20 days; NBK Manchester, 50 days; and NS Everett, 78 days. These totals include both extraction and installation of piles, and represent a conservative estimate of pile driving days at each facility. In a real construction situation, pile driving production rates would be maximized when possible and actual daily production rates may be higher, resulting in fewer actual pile driving days. Specified Geographical Region The six installations are located within the inland waters of Washington State. Two facilities are located within Hood Canal, while the remainder are located within Puget Sound. Please see Figure 1–1 of the Navy’s application for a regional map. NBK Bangor and Zelatched Point are located in the Hood Canal, a long, narrow, fjord-like basin of western Puget Sound. Please see Figures 1–2 and 1–6 of the Navy’s application. NBK Bremerton is located on the north side of Sinclair Inlet in southern Puget Sound. Please see Figure 1–3 of the Navy’s application. NBK Keyport is located on the eastern shore of the Kitsap Peninsula. Please see Figure 1–4 of the Navy’s application. NBK Manchester is located on Orchard Point, approximately 6.4 km due east of Bremerton. Please see Figure 1–5 of the Navy’s application. NS Everett is located in Port Gardner Bay in Puget Sound’s Whidbey Basin. Please see Figure 1–7 of the Navy’s application. For additional detail regarding the specified geographical region, please see our notice of proposed rulemaking (83 FR 9366; March 5, 2018) and Section 2 of the Navy’s application. Detailed Description of Activities As described above, the Navy requested incidental take regulations for its MPR program, which includes maintenance and repair activities at marine waterfront structures at six E:\FR\FM\17APR1.SGM 17APR1 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations installations within Washington inland waters. In order to address identified deficiencies in existing marine structures at the six facilities, the Navy plans to replace up to 822 structurally unsound piles over the 5-year period using both impact and vibratory pile driving. Existing marine structures at the six facilities are identified in Table 1–2 of the Navy’s application. The MPR program includes pile repair, extraction, and installation, all of which may be accomplished through a variety of methods. However, only pile extraction and installation using vibratory and impact pile drivers is expected to have the potential to result in incidental take of marine mammals. A detailed description of the Navy’s planned activities was provided in our notice of proposed rulemaking (83 FR 9366; March 5, 2018) and is not repeated here. No changes have been made to the specified activities described therein. Steel piles are typically vibratorydriven for their initial embedment depths or to refusal and finished with an impact hammer for proofing or until the pile meets structural requirements, as necessary. Non-steel piles (concrete, timber, or plastic) are typically impactdriven for their entire embedment depth, in part because non-steel piles are often displacement piles (as opposed to pipe piles) and require some impact to allow substrate penetration. Pile 15965 installation can typically take a minute or less to 60 minutes depending on pile type, pile size, and conditions (i.e., bedrock, loose soils, etc.) to reach the required tip elevation. Impact or vibratory pile driving could occur on any day, but would not occur simultaneously. Location-specific pile totals are given in Table 1 and described below. These totals assume a 1:1 replacement ratio; however, the actual number installed may result in a replacement ratio of less than 1:1. Please see Table A–1 of the Navy’s application for additional detail regarding expectations for both planned work and possible contingency work. amozie on DSK9F9SC42PROD with RULES TABLE 1—PILE TYPES AND MAXIMUM ANTICIPATED NUMBER TO BE REPLACED AT EACH INSTALLATION Installation Existing piles to be replaced Anticipated piles to be installed NBK Bangor ....................................................... NBK Bremerton .................................................. 44 concrete, 75 steel and/or timber ................. 75 steel and/or timber, 460 timber .................. NBK Keyport ....................................................... NBK Manchester ................................................ Zelatched Point .................................................. NS Everett .......................................................... 20 steel and/or concrete .................................. 50 timber and/or plastic ................................... 20 timber .......................................................... 1 steel, 2 concrete, and 75 timber ................... 119 steel or concrete. 100 steel (14-in diameter and sheet piles), 435 concrete. 20 steel. 50 concrete, timber, and/or plastic. 20 steel, concrete, and/or timber. 1 steel and 77 concrete and/or timber. Steel piles would be a maximum size of 36-inch (in) diameter except at NBK Bremerton where they would be 14-in diameter. Concrete piles will be a maximum of 24-in diameter and timber/ plastic piles will be a maximum of 18-in diameter. For purposes of analysis, it is assumed that any unknown pile type would be steel, since this provides a worst-case scenario in terms of noise levels produced. All concrete, timber, and plastic piles are assumed to be installed entirely by impact pile driver, and all steel piles are assumed to require some use of an impact driver. This is a conservative assumption, as all steel piles would be initially driven with a vibratory driver until they reach a point of refusal (where substrate conditions make use of a vibratory hammer ineffective) or engineering specifications require impact driving to verify load-bearing capacity. Therefore, some steel piles may not in fact require use of the impact driver during installation. Of 822 piles expected to be installed as replacement piles, 121 have been identified as steel piles. These piles will be installed over the 5-year duration at NBK Bremerton, NBK Keyport, and NS Everett. In addition, another 139 piles that would be installed at NBK Bangor (119) and Zelatched Point (20) have not been identified as to pile type and could be steel, concrete, timber, or plastic. For VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 this analysis, it is assumed all 139 of these would be steel piles. Therefore, 260 piles are assumed to be steel, with 100 of these 14-in and the remainder assumed to be 36-in diameter. A total of 435 replacement piles have been identified as concrete (NBK Bremerton). The remaining 127 replacement piles (NBK Manchester and NS Everett) could ultimately be concrete, timber, or plastic, but are assumed for purposes of analysis to be concrete, which is a more conservative noise scenario. Comments and Responses We published a notice of proposed rulemaking in the Federal Register on March 5, 2018 (83 FR 9366). During the 30-day comment period, we received letters from the Marine Mammal Commission (Commission) and WDC. The comments and our responses are described below. For full detail of the comments and recommendations, please see the comment letters, which are available online at: www.fisheries.noaa.gov/action/ incidental-take-authorization-us-navymarine-structure-maintenance-and-pilereplacement-wa. Comment: The Commission recommends that NMFS should consult with scientists and acousticians to determine the appropriate accumulation time that action proponents should use to determine the extent of Level A harassment zones based on the PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 associated cumulative sound exposure level (cSEL) thresholds in such situations. The Commission further recommends that NMFS consult with both internal and external scientists and acousticians to determine the appropriate accumulation time that action proponents should use to determine the extent of the Level A harassment zones based on the associated cSEL thresholds for the various types of sound sources, including stationary sound sources, when simple area x density methods are employed. Response: NMFS appreciates the Commission’s interest in these issues, and we agree that these are important issues needing further consideration. Therefore, NMFS will continue to consider and refine our approach to assessing the appropriate calculation of Level A harassment through future actions as more information and experience is available. However, we also note that the Commission itself has a nine-member Committee of Scientific Advisors, including experts on the very topics mentioned, in addition to a professional staff including subject matter experts on marine mammal behavior and acoustics. As such, we would welcome in the future any more substantive recommendations relating to these issues that the Commission wishes to provide. E:\FR\FM\17APR1.SGM 17APR1 amozie on DSK9F9SC42PROD with RULES 15966 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations In addition, as described in NMFS’s 2018 Revision to Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2018), NMFS is committed to re-examining the default 24-hour accumulation period and has convened a working group to investigate alternative means of identifying appropriate accumulation periods. Comment: The Commission recommends NMFS share its criteria for rounding take estimates with the Commission. Response: On June 27, 2018, NMFS provided the Commission with its internal guidance on rounding and the consideration of additional factors in take estimation. Comment: WDC recommends that NMFS and the Navy consult on the status of marine mammal populations on a yearly basis at minimum, and with greater frequency regarding southern resident killer whales (SRKW). In addition, WDC suggests that the Navy must communicate and coordinate with Washington State on the status of localized impacts to SRKW for each project site, during the time of each construction project. Response: We appreciate WDC’s comments and share, generally, their concern regarding the status of the endangered SRKW population. However, as discussed herein and as separately evaluated through NMFS’s consultation under section 7 of the ESA, the Navy’s construction actions (and NMFS’s potential issuance of LOAs for take of marine mammals incidental to those actions) do not present meaningful concern relating to impacts on SRKW. In most locations, SRKW are not expected to be present and, where they could be encountered, the Navy has committed to robust monitoring and mitigation requirements. As such, the requirement to meet annually (as proposed) is sufficient for information exchange regarding ongoing and future actions associated with the Navy’s MPR program. With regard to the need to consult with Washington State, it is outside NMFS’s jurisdiction to require such consultation of the Navy. The Navy will consult with Washington State in accordance with applicable state law. Comment: WDC disagrees with statements in our notice of proposed rulemaking regarding the likely presence of SRKW individuals in the vicinity of Navy facilities, and suggests that the estimated taking of SRKW as a result of the specified activities is underestimated. WDC supports this recommendation in part by stating that VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 the occurrence of SRKW in Puget Sound, which is likely determined by the presence and abundance of seasonally-preferred salmon runs, has been highly variable in recent years. WDC recommends reconsideration of the number of SRKW that may be taken by the specified activity. Response: We first clarify that WDC apparently misunderstands our previous statement relating to expected SRKW occurrence. Rather than stating that SRKW occur ‘‘only rarely and unpredictably’’ in the Puget Sound region as a whole, as WDC comments, we noted that SRKW (among other species considered herein) occur only rarely and unpredictably in the vicinity of Navy facilities. Reiterating our discussion in the notice of proposed rulemaking, SRKW have not been reported in Hood Canal (NBK Bangor and Zelatched Point) since 1995. The most recent confirmed sighting of SRKW near NBK Bremerton and Keyport was in Dyes Inlet in 1997. SRKW occur only rarely in far southern Puget Sound, near NBK Manchester. We acknowledged that SRKW are more likely to occur in the vicinity of NS Everett. Even at these latter two facilities (NBK Manchester and NS Everett), a density-based analysis would lead to an assumption that SRKW takes are unlikely, given the generally small acoustic harassment zones (other than when vibratory driving steel piles) and low number of expected days on which pile driving would occur under the MPR. Further, the robust monitoring requirements that will be required of the Navy—including a commitment to monitor local sightings networks and avoid pile driving when SRKW are known to be in the vicinity of a facility—in conjunction with the Navy’s commitment to cease pile driving if SRKW (and cetaceans in general) are detected at any distance strengthen the conclusion that take of SRKW is unlikely. However, in recognition that it is possible that SRKW could briefly enter a harassment zone undetected during vibratory pile driving of steel piles (when harassment zones are largest), we include analysis of a precautionary amount of take (equivalent to two occurrences of J pod or one occurrence of L pod). The best available information supports a conclusion that this amount of take by Level B harassment is sufficient, and WDC provides no specific information to the contrary. Comment: WDC similarly suggests that the take number provided for transient killer whales is underestimated, citing take estimates PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 produced for previous incidental take authorizations for Navy construction activities in Hood Canal. Response: As for SRKW, the best available information, including local sightings data—described in our notice of proposed rulemaking—suggest that transient killer whales are unlikely to occur in the vicinity of Navy construction activities. The take estimate considered herein considers available information regarding group size and a reasonable estimate of days on which transient killer whales may be present, given their rarity, small acoustic harassment zones for most pile driving, and few days on which pile driving is expected to occur. The incidental take authorization cited by WDC (83 FR 10689; March 12, 2018) included an extremely precautionary take estimate, as has occurred for other past Navy authorization requests for construction activities specific to the Hood Canal. We note that, although relatively large amounts of take have been authorized for transient killer whales in association with such activities—since 2010, nine IHAs have been issued to the Navy for construction activities at NBK Bangor in Hood Canal—no killer whale observations have ever been reported during construction activities, and no actual takes are believed to have occurred. Overall, with regard to both SRKW and transient killer whales, we believe that the take estimates analyzed herein reasonably reflect the available information and should be expected to be reasonably reflective of the actual potential for killer whale occurrence in the vicinity of Navy facilities during the specified construction activities. However, these regulations also include an adaptive management component that will allow Navy and NMFS to evaluate on an annual basis whether these assumptions remain accurate. Comment: With regard to mitigation and monitoring, WDC recommends ensuring that the Navy uses adequate numbers and placement of marine mammal observers to detect killer whales at all project sites, to ensure awareness regarding updated information on killer whale presence, and to utilize citizen sightings networks on a daily basis to monitor for presence and activity of killer whales in the area before construction activities begin. WDC also recommends ensuring that observers have sufficient training to differentiate between resident and transient killer whales. Response: We agree with WDC regarding these measures, all of which were included in our notice of proposed rulemaking and are carried forward in E:\FR\FM\17APR1.SGM 17APR1 15967 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations these final regulations. However, we do caution that identification of transient versus resident killer whales may be difficult, although observers will be required to have sufficient training and experience to make such determinations, within reason. Comment: WDC encourages ‘‘extensive use of the proposed hydroacoustic system’’ to detect the presence of marine mammals. In addition, WDC states that this unspecified system should be used to measure localized levels of underwater noise at project sites and, in conjunction with a threshold level to be determined, that construction activities not be allowed to proceed if background noise levels are above some predetermined level. Response: Overall, this proposal is too vague to reasonably be acted upon. It is unclear what ‘‘proposed hydroacoustic system’’ WDC is referring to, and significantly greater detail would need to be provided with regard to the technical specifications of such a system as well as with regard to the data to be collected and its monitoring in order to meaningfully evaluate such a proposal. It is also unclear what WDC suggests as an appropriate threshold for background noise. Moreover, even if we assume that a passive acoustic monitoring system exists in conjunction with the capacity to monitor data in real-time, the proposal to not allow construction activities if background noise is above a specified threshold would likely be considered impracticable, as the level of background noise is outside the Navy’s control, such a requirement could significantly constrain Navy’s ability to conduct necessary construction activities, and the requirement would be of uncertain benefit to affected marine mammals. Description of Marine Mammals in the Area of the Specified Activity We have reviewed the Navy’s species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of the Navy’s application, instead of reprinting the information here. Additional information regarding population trends and threats may be found in NMFS’s Stock Assessment Reports (SAR; www.fisheries.noaa.gov/topic/ population-assessments#marinemammals) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website (www.fisheries.noaa.gov/find-species). Table 2 lists all species with expected potential for occurrence in the specified geographical region where the Navy proposes to conduct the specified activities and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2017). PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is considered in concert with known sources of ongoing anthropogenic mortality (as described in NMFS’s SARs). Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. All managed stocks in the specified geographical region are assessed in either NMFS’s U.S. Alaska SARs or U.S. Pacific SARs. All values presented in Table 2 are the most recent available at the time of writing, including updated information provided in the draft 2018 SARs (available online at: www.fisheries.noaa.gov/national/ marine-mammal-protection/draftmarine-mammal-stock-assessmentreports). Ten species (with 13 managed stocks) are considered to have the potential to co-occur with Navy activities. There are several species or stocks that occur in Washington inland waters, but which are not expected to occur in the vicinity of the six Naval installations. These species may occur in waters of the Strait of Juan de Fuca or in more northerly waters in the vicinity of the San Juan Islands and areas north to the Canadian border, and include the Pacific whitesided dolphin (Lagenorhynchus obliquidens) and the northern resident stock of killer whales. In addition, the sea otter is found in coastal waters, with the northern (or eastern) sea otter (Enhydra lutris kenyoni) found in Washington. However, sea otters are managed by the U.S. Fish and Wildlife Service and are not considered further in this document. Two populations of gray whales are recognized, eastern and western North Pacific (ENP and WNP). As discussed in greater detail in our notice of proposed rulemaking (83 FR 9366; March 5, 2018), there is no indication that WNP whales occur in waters of Hood Canal or southern Puget Sound, and it is extremely unlikely that a gray whale in close proximity to Navy construction activity would be one of the few WNP whales that have been documented in the eastern Pacific. The likelihood that a WNP whale would be present in the vicinity of Navy construction activities is insignificant and discountable, and WNP gray whales are omitted from further analysis. TABLE 2—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF NAVY CONSTRUCTION ACTIVITIES Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR Annual M/SI 3 amozie on DSK9F9SC42PROD with RULES Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae:. Gray whale .................... Family Balaenopteridae (rorquals): Humpback whale ........... Minke whale ................... VerDate Sep<11>2014 Eschrichtius robustus ........... Eastern North Pacific ............ -; N 26,960 (0.05; 25,849; 2016) Megaptera novaeangliae kuzira. Balaenoptera acutorostrata scammoni. California/Oregon/Washington (CA/OR/WA). CA/OR/WA ............................ E/D; Y -; N 16:23 Apr 16, 2019 Jkt 247001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 801 138 2,900 (0.03; 2,784; 2014) ..... 16.7 7 ≥38.6 636 (0.72; 369; 2014) ........... 3.5 ≥1.3 E:\FR\FM\17APR1.SGM 17APR1 15968 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations TABLE 2—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF NAVY CONSTRUCTION ACTIVITIES—Continued Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 3 PBR Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Killer whale .................... Family Phocoenidae (porpoises): Harbor porpoise ............. Dall’s porpoise ............... Orcinus orca 4 ....................... West Coast Transient 5 ......... Eastern North Pacific Southern Resident. -; N E/D; Y 243 (n/a; 2009) ..................... 77 (n/a; 2017) ....................... 2.4 0.13 0 0 Phocoena phocoena vomerina. Phocoenoides dalli dalli ........ Washington Inland Waters ... -; N 11,233 (0.37; 8,308; 2015) ... 66 ≥7.2 CA/OR/WA ............................ -; N 25,750 (0.45; 17,954; 2014) 172 0.3 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): California sea lion .......... Steller sea lion ............... Zalophus californianus .......... Eumetopias jubatus monteriensis. United States ........................ Eastern U.S. ......................... -; N -; N 257,606 (n/a; 233,515; 2014) 41,638 (n/a; 2015) ................ 14,011 2,498 ≥319 108 Family Phocidae (earless seals): Harbor seal .................... Phoca vitulina richardii ......... -; N 11,036 (0.15; 7,213; 1999) ... Undet. 9.8 Northern elephant seal .. ............................................... ............................................... Mirounga angustirostris ........ Washington Northern Inland Waters 6. Southern Puget Sound 6 Hood Canal 6 California Breeding ............... -; N -; N -; N 1,568 (0.15; 1,025; 1999) ..... 1,088 (0.15; 711; 1999) ........ 179,000 (n/a; 81,368; 2010) Undet. Undet. 4,882 3.4 0.2 8.8 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For two stocks of killer whales, the abundance values represent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated CV. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge of the species’ (or similar species’) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore. 3 These values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented in the draft 2018 SARs. 4 Transient and resident killer whales are considered unnamed subspecies (Committee on Taxonomy, 2017). 5 The abundance estimate for this stock includes only animals from the ‘‘inner coast’’ population occurring in inside waters of southeastern Alaska, British Columbia, and Washington—excluding animals from the ‘‘outer coast’’ subpopulation, including animals from California—and therefore should be considered a minimum count. For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now considered outdated, was 354. 6 Abundance estimates for these stocks are not considered current. PBR is therefore considered undetermined for these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available information for use in this document. 7 This stock is known to spend a portion of time outside the U.S. EEZ. Therefore, the PBR presented here is the allocation for U.S. waters only and is a portion of the total. The total PBR for humpback whales is 33.4 (one half allocation for U.S. waters). Annual M/SI presented is for U.S. waters only. Additional detail regarding the affected species and stocks, including local occurrence data for each of the six Navy facilities, was provided in our notice of proposed rulemaking (83 FR 9366; March 5, 2018) and is not repeated here. amozie on DSK9F9SC42PROD with RULES Marine Mammal Hearing Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with an exception for lower limits for lowfrequency cetaceans where the result was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group): • Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hz and 35 kHz; • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz; • High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is E:\FR\FM\17APR1.SGM 17APR1 15969 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations estimated to occur between approximately 275 Hz and 160 kHz; • Pinnipeds in water; Phocidae (true seals): Functional hearing is estimated to occur between approximately 50 Hz to 86 kHz; • Pinnipeds in water; Otariidae (eared seals): Functional hearing is estimated to occur between 60 Hz and 39 kHz for Otariidae. For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Ten marine mammal species (six cetacean and four pinniped (two otariid and two phocid) species) have the potential to co-occur with Navy construction activities. Please refer to Table 2. Of the six cetacean species that may be present, three are classified as low-frequency cetaceans (i.e., all mysticete species), one is classified as a mid-frequency cetacean (i.e., killer whales), and two are classified as high-frequency cetaceans (i.e., porpoises). rulemaking (83 FR 9366; March 5, 2018). Therefore, we do not reprint the information here but refer the reader to that document. That document included a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat, as well as general background information on sound. The ‘‘Estimated Take’’ section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The ‘‘Negligible Impact Analysis and Determination’’ section considers the content of this section and the material it references, the ‘‘Estimated Take’’ section, and the ‘‘Mitigation’’ section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. Potential Effects of the Specified Activity on Marine Mammals and Their Habitat We provided discussion of the potential effects of the specified activity on marine mammals and their habitat in our Federal Register notice of proposed Estimated Take This section provides an estimate of the number of incidental takes for authorization, which will inform both NMFS’s consideration of whether the number of takes is ‘‘small’’ and the negligible impact determination. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines ‘‘harassment’’ as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Take of marine mammals incidental to Navy construction activities could occur as a result of Level A or Level B harassment. Below we describe how the potential take is estimated. Acoustic Thresholds We provided discussion of relevant sound thresholds in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018) and do not repeat the information here. Generalized acoustic thresholds based on received level are used to estimate the onset of Level B harassment. These thresholds are 160 dB rms (intermittent sources) and 120 dB rms (continuous sources). Please see Table 3 for Level A harassment (auditory injury) criteria. TABLE 3—EXPOSURE CRITERIA FOR AUDITORY INJURY Peak pressure 1 (dB) Hearing group Low-frequency cetaceans ............................................................................................................ Mid-frequency cetaceans ............................................................................................................. High-frequency cetaceans ........................................................................................................... Phocid pinnipeds ......................................................................................................................... Otariid pinnipeds .......................................................................................................................... 1 Referenced 2 Referenced Cumulative sound exposure level 2 Impulsive (dB) 219 230 202 218 232 Non-impulsive (dB) 183 185 155 185 203 199 198 173 201 219 to 1 μPa; unweighted within generalized hearing range. to 1 μPa2-s; weighted according to appropriate auditory weighting function. Zones of Ensonification Sound Propagation—We provided discussion of relevant propagation considerations in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018) and do not repeat the information here. As is common practice in coastal waters, here we assume practical spreading loss (4.5 dB reduction in sound level for each doubling of distance). Practical spreading is a compromise that is often used under conditions where water depth increases as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Sound Source Levels—We provided discussion of source level considerations in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018) and do not repeat the information here. No changes have been made to the source level selections described in that notice and shown in Table 4. amozie on DSK9F9SC42PROD with RULES TABLE 4—ASSUMED SOURCE LEVELS Size (in) Method Type Impact ........................... Plastic .......................... Timber ......................... Concrete ...................... VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 PO 00000 SPL (rms) 1 13 12/14 18 24 Frm 00021 156 170 170 178 Fmt 4700 .............................. .............................. .............................. .............................. Sfmt 4700 SPL (peak) 1 2 Not available ............... Not available ............... 184 .............................. 189 .............................. E:\FR\FM\17APR1.SGM 17APR1 SEL 1 3 Not available. Not available. 159. 166. 15970 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations TABLE 4—ASSUMED SOURCE LEVELS—Continued Method Vibratory ........................ Size (in) Type SPL (rms) 1 Steel pipe .................... 12/13 14 24 30 36 Timber ......................... Steel pipe .................... 12 13/14 13/14 16/24 30/36 Steel sheet .................. n/a SPL (peak) 1 2 177 .............................. 184 .............................. 193 .............................. 195 .............................. 194 (Bangor); 192 (others). 153 .............................. 155 .............................. 155 .............................. 161 .............................. 166 (Bangor); 167 (others). 163 .............................. SEL 1 3 192 200 210 216 211 .............................. .............................. .............................. .............................. .............................. n/a n/a n/a n/a n/a ............................... ............................... ............................... ............................... ............................... n/a ............................... 167. 174. 181. 186. 181 (Bangor); 184 (others). n/a. n/a. n/a. n/a. n/a. n/a. 1 Source levels presented at standard distance of 10 m from the driven pile. Peak source levels are not typically evaluated for vibratory pile driving, as they are lower than the relevant thresholds for auditory injury. SEL source levels for vibratory driving are equivalent to SPL (rms) source levels. The Navy will use bubble curtains when impact driving steel piles of 24in diameter and greater, except at NBK Bremerton and NBK Keyport (see Mitigation for further discussion). For the reasons described in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018), we assume here that use of the bubble curtain would result in a reduction of 8 dB from the assumed SPL (rms) and SPL (peak) source levels for these pile sizes, and reduce the applied source levels accordingly. For determining distances to the cumulative SEL injury thresholds, auditory weighting functions were applied to the attenuated one-second SEL spectra for steel pipe piles (see Appendix E of the Navy’s application). Level A Harassment—In order to assess the potential for injury on the basis of the cumulative SEL metric, one must estimate the total strikes per day (impact driving) or the total driving duration per day (vibratory driving). Estimates of total strikes per day and total driving duration per day, shown in Table 5, were described in detail in our notice of proposed rulemaking, and are unchanged (83 FR 9366; March 5, 2018). Table 5 presents an estimate of average strikes per day; average strikes per day and average daily duration values are used in the exposure analyses. For vibratory driving of piles less than 16in, a daily duration of 0.5 hours was assumed; for vibratory driving of larger piles a daily duration of 2.25 hours was assumed. TABLE 5—ESTIMATED DAILY STRIKES AND DRIVING DURATION Estimated duration Pile type and method Installation rate per day 14-in steel; impact ....................................... 24- to 30-in steel; impact ............................ 18- to 24-in concrete; impact ...................... 13-in steel; vibratory .................................... 24- to 30-in steel; vibratory ......................... No data ..................................... 1–6 ........................................... 1–11 ......................................... 2–17 ......................................... 1–6 ........................................... Average strikes/day Average daily duration 1 <<1,000 .................................. 1,000 ........................................ 2 4,000 ...................................... n/a ............................................ n/a ............................................ No data. 4.5 minutes to 1.5 hours. 3 minutes to 4 hours. 0–31 minutes.3 10 minutes to 4.5 hours.4 amozie on DSK9F9SC42PROD with RULES 1 All 14-in piles are expected to be vibratory driven for full embedment depth. In the event that conditions requiring impact driving are encountered, very few strikes are expected to be necessary. 2 Estimate based on data from 272 piles installed at NBK Bremerton. 3 Estimate based on data from 70 piles installed at NBK Bremerton. 4 Estimate based on data from 809 piles installed at NBK Bangor. Maximum assumes six piles advanced at a rate of 45 minutes per pile. Delineation of potential injury zones on the basis of the peak pressure metric was performed using the SPL(peak) values provided in Table 4 above. Source levels for peak pressure are unweighted within the generalized hearing range, while SEL source levels are weighted according to the appropriate auditory weighting function. As discussed in detail in the notice of proposed rulemaking (83 FR 9366; March 5, 2018), delineation of potential injury zones on the basis of the cumulative SEL metric for vibratory driving was performed using the NMFS User Spreadsheet. This relatively simple VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 approach will typically result in higher predicted exposures for broadband sounds, since only one frequency is being considered, compared to exposures associated with the ability to fully incorporate the Technical Guidance’s weighting functions. Because use of the WFA typically results in an overestimate of zone size, the Navy took an alternative approach to delineating potential injury zones for impact driving of 24- and 36-in steel piles and 24-in concrete piles. Note that, because data is not available for all pile sizes and types, we conservatively assume the following in using the PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 available data for 24- and 36-in steel piles and 24-in concrete piles: (1) Injury zones for impact driving 14- and 24-in piles are equivalent to the zones for 24in piles with no bubble curtain; (2) injury zones for impact driving plastic and timber piles and for 18-in concrete piles are equivalent to the zones for 24in concrete piles; and (3) injury zones for impact driving 30-in steel piles are equivalent to the zones calculated for 36-in piles (both with and without bubble curtain). This approach, described in detail in Appendix E of the Navy’s application, incorporated frequency weighting E:\FR\FM\17APR1.SGM 17APR1 15971 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations adjustments by applying the auditory weighting function over the entire onesecond SEL spectral data sets from impact pile driving. If this information for a particular pile size was not available, the next highest source level was used to produce a conservative estimate of areas above threshold values. Sound level measurements from construction activities during the 2011 Test Pile Program at NBK Bangor were used for evaluation of impact-driven steel piles, and sound level concrete piles, notional radial distances to relevant thresholds were calculated (Table 6). However, these distances are sometimes constrained by topography. Actual notional ensonified zones at each facility are shown in Tables 6–1 to 6– 6b of the Navy’s application. These zones are modeled on the basis of a notional pile located at the seaward end of a given structure in order to provide a conservative estimate of ensonified area. measurements from construction activities during the 2015 Intermediate Maintenance Facility Pier 6 Fender Pile Replacement Project at NBK Bremerton were used for evaluation of impactdriven concrete piles. In consideration of the assumptions relating to propagation, sound source levels, and the methodology applied by the Navy towards incorporating frequency weighting adjustments for delineation of cumulative SEL injury zones for impact driving of steel and TABLE 6—CALCULATED DISTANCES TO LEVEL A HARASSMENT ZONES PW Pile OW LF MF HF Driver pk 24-in concrete 1 ......... 24-in steel 2 ............... 24-in steel 2 ............... 36-in steel 2 ............... 36-in steel 2 ............... 12- to 14-in timber 3 .. 16- and 24-in steel 4 .. 30- and 36-in steel (Bangor) 4. 30- and 36-in steel (others) 4. Sheet steel 4 .............. cSEL pk cSEL pk cSEL pk cSEL pk cSEL Impact ....................... Impact; BC ................ Impact; no BC ........... Impact; BC ................ Impact; no BC ........... Vibratory ................... Vibratory ................... Vibratory ................... 0 1 3 1 3 n/a n/a n/a 34 25 86 158 736 1 7 15 0 0 0 0 0 n/a n/a n/a 2 1.4 5 9 46 <1 1 11 0 1 3 1 3 n/a n/a n/a 216 136 159 736 2,512 2 12 25 0 0 0 0 1 n/a n/a n/a 3 3 6 10 63 <1 1 2 1 10 34 12 40 n/a n/a n/a 136 185 342 541 2,512 3 17 37 Vibratory ................... n/a 18 n/a 1 n/a 30 n/a 3 n/a 43 Vibratory ................... n/a 10 n/a 1 n/a 16 n/a 1 n/a 24 amozie on DSK9F9SC42PROD with RULES PW = Phocid; OW = Otariid; LF = low frequency; MF = mid frequency; HF = high frequency; pk = peak pressure; cSEL = cumulative SEL; BC = bubble curtain 1 Assumes 4,000 strikes per day. 2 Assumes 1,000 strikes per day. Bubble curtain will be used for 24-, 30-, and 36-in steel piles except at NBK Bremerton and NBK Keyport. Steel piles will not be installed at NBK Manchester. 3 Assumes 30 minute daily driving duration. 4 Assumes 2.25 hour daily driving duration. Summary—Here, we summarize facility-specific information about piles to be removed and installed. In general, it is likely that pile removals may be accomplished via a combination of methods (e.g., vibratory driver, cut at mudline, direct pull). However, for purposes of analysis we assume that all removals would be via vibratory driver. In addition, we assume that installation of all steel piles larger than 14-in would require use of both impact and vibratory drivers, although it is likely that some of these piles would be installed solely via use of the vibratory driver. All concrete, timber, and plastic piles would be installed solely via impact driver. Steel sheet piles and steel pipe piles of 14-in diameter and smaller would be installed solely via vibratory driver. All piles removed are assumed to be replaced at a 1:1 ratio, although it is likely that a lesser number of replacement piles would be required. For full details, please see Appendix A of the Navy’s application. • NBK Bangor: The Navy anticipates ongoing maintenance work at the older Explosives Handling Wharf (EHW–1), including removal and replacement of VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 up to 44 piles. Replacement of up to 75 piles is anticipated for contingency repairs at any existing structure. Piles to be removed would be steel, timber, and/ or concrete, and replacement piles would be steel and/or concrete. As a conservative scenario, all piles are assumed to be 36-in steel for purposes of analysis. • Zelatched Point: Replacement of up to 20 piles is anticipated for contingency repairs. Piles to be removed would be 12-in timber piles, while replacement piles could be steel, timber, and/or concrete. As a conservative scenario, all replacement piles are assumed to be 36-in steel for purposes of analysis. • NBK Bremerton: The Navy anticipates ongoing maintenance work at multiple existing structures. At Pier 5, 360 timber fender piles would be removed and replaced with concrete piles. Timber piles are assumed to be 14-in diameter, and concrete piles are assumed to be 24-in. At Pier 4, 80 timber fender piles would be replaced with steel piles—timber and steel piles are assumed to be 14-in diameter. Anticipated repairs to other piers would PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 require removal of up to 20 timber piles, followed by installation of steel sheet piles. Replacement of up to 75 piles is anticipated for contingency repairs at any existing structure. Piles to be removed would be steel and/or timber, and replacement piles would be 24-in concrete. The largest estimated Level B harassment zone of influence (ZOI) results from vibratory driving of sheet piles, which is expected to occur for only twenty of the estimated total of 168 activity days. The Navy has elected to assume this largest estimated ZOI for all 168 activity days as a conservative scenario. • NBK Keyport: Replacement of up to 20 piles is anticipated for contingency repairs. Piles to be removed would be steel and/or concrete (up to 18-in), while replacement piles would be steel. As a conservative scenario, all replacement piles are assumed to be 36in steel for purposes of analysis. • NBK Manchester: Replacement of up to 50 piles is anticipated for contingency repairs. Piles to be removed would be timber and/or plastic (up to 18-in), while replacement piles could be timber, plastic, and/or concrete. As a E:\FR\FM\17APR1.SGM 17APR1 15972 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations conservative scenario, all replacement piles are assumed to be 24-in concrete for purposes of analysis. • NS Everett: The Navy anticipates minor repairs at the North Wharf, requiring replacement of two concrete piles (assumed to be 24-in). Replacement of up to 76 piles is anticipated for contingency repairs. Piles to be removed would include one steel pile and 75 timber piles. The one steel pile would be replaced by a 36-in steel pile, while the timber piles could be replaced by concrete and/or timber piles. As a conservative scenario, these replacement piles are assumed to be 24in concrete for purposes of analysis. Level B harassment zones and associated areas of ensonification are identified in Table 7 below. Although not all zones are applied to the exposure analysis, these may be effected as part of the required monitoring. Ensonified areas vary based on topography in the vicinity of the facility and are provided for each relevant facility. TABLE 7—RADIAL DISTANCES TO RELEVANT BEHAVIORAL ISOPLETHS AND ASSOCIATED ENSONIFIED AREAS Pile size and type Impact (160-dB rms) 1 Ensonified Area 2 Vibratory 120-dB) 3 Ensonified area 2 Plastic (13-in) .................... Timber (12-in) .................... 5 ........................................ 46 ...................................... 0.001 ................................. 0.01 ................................... n/a ..................................... 1.6 ..................................... Timber (13⁄14-in) 4 ............... 46 ...................................... 0.01 ................................... 2.2 ..................................... Concrete (24-in) 4 .............. Steel (14-in) ....................... Steel (24-in; BC) ................ 159 .................................... 398 .................................... 464 .................................... n/a ..................................... 2.2 ..................................... n/a ..................................... Steel (24-in; no BC) 5 ........ 1,585 ................................. 0.08 ................................... 0.5 (Bremerton) ................. 0.54 (Bangor); 0.48 (Zelatched Point). 2.09 (Keyport) ................... n/a. 3.8 (Manchester Finger Pier); 4.6 (Manchester Fuel Pier). 6.8 (Bremerton); 5.9 (Manchester Finger Pier); 7.8 (Manchester Fuel Pier);6 9.4 (Everett). n/a. 6.8 (Bremerton) n/a. Steel (30-in; BC) ................ 631 .................................... Steel (30-in; no BC) .......... Steel (36-in; BC) ................ 2,154 ................................. 541 (Bangor); 398 (others) Steel (36-in; no BC) .......... Sheet steel ........................ 5.4 ..................................... n/a ..................................... Same as 36-in ................... n/a ..................................... Same as 36-in. n/a. 1,359 ................................. 0.91 (Bangor); 0.85 (Zelatched Point); 1.2 (Everett). 1.94 (Keyport) ................... 0.7 (Bangor); 0.36 (Zelatched Point); 0.5 (Everett). 0.42 (Keyport) ................... 26.8 (Bangor); 4.9 (Keyport); 37.9 (Zelatched Point). n/a. 11.7 (Bangor); 13.6 (others). n/a ..................................... n/a ..................................... 7.4 ..................................... 4.9 (Keyport); 75.24 (Zelatched Point); 117.8 (Everett); 40.9 (Bangor). 15.0 (Bremerton). BC = bubble curtain. 1 Radial distance to threshold in meters. 2 Ensonified area in square kilometers. 3 Radial distance to threshold in kilometers. 4 Zones for impact driving of 18-in concrete piles are equivalent to those for impact driving of timber piles. Zones for vibratory removal of up to 18-in diameter plastic/timber piles are assumed to be equivalent to those for 13⁄14-in timber piles. 5 Zones for vibratory driving of 16-in steel piles assumed equivalent to those for 24-in steel piles. 6 Worst-case values for vibratory extraction of timber/plastic piles at NBK Manchester, where piles to be removed are a maximum 18-in diameter. amozie on DSK9F9SC42PROD with RULES Marine Mammal Occurrence Available information regarding marine mammal occurrence in the vicinity of the six installations includes density information aggregated in the Navy’s Marine Mammal Species Density Database (NMSDD; Navy, 2015) or sitespecific survey information from particular installations (e.g., local pinniped counts). More recent density estimates for harbor porpoise are available in Smultea et al. (2017). First, for each installation we describe anticipated frequency of occurrence and the information deemed most appropriate for the exposure estimates. For all facilities, large whales (humpback whale, minke whale, and gray whale), killer whales (transient and resident), and the elephant seal are VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 considered as occurring only rarely and unpredictably, on the basis of past sighting records. For these species, average group size is considered in concert with expected frequency of occurrence to develop the most realistic exposure estimate. Although certain species are not expected to occur at all at some facilities—for example, resident killer whales are not expected to occur in Hood Canal—the Navy has developed an overall take estimate and request for these species that would apply to activities occurring over the 5-year duration at all six installations. • NBK Bangor: In addition to the species described above, the Dall’s porpoise is considered as a rare, unpredictably occurring species. A density-based analysis is used for the harbor porpoise, while data from site- PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 specific abundance surveys is used for the California sea lion, Steller sea lion, and harbor seal. • Zelatched Point: In addition to the species described above, the Dall’s porpoise is considered as a rare, unpredictably occurring species. A density-based analysis is used for the harbor porpoise, California sea lion, Steller sea lion, and harbor seal. • NBK Bremerton: A density-based analysis is used for the harbor porpoise, Dall’s porpoise, and Steller sea lion, while data from site-specific abundance surveys is used for the California sea lion and harbor seal. • NBK Keyport: A density-based analysis is used for the harbor porpoise, Dall’s porpoise, California sea lion, Steller sea lion, and harbor seal. E:\FR\FM\17APR1.SGM 17APR1 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations • NBK Manchester: A density-based analysis is used for the harbor porpoise, Dall’s porpoise, and harbor seal, while data from site-specific abundance surveys is used for the California sea lion and Steller sea lion. • NS Everett: A density-based analysis is used for the harbor porpoise, 15973 Dall’s porpoise, and Steller sea lion, while data from site-specific abundance surveys is used for the California sea lion and harbor seal. TABLE 8—MARINE MAMMAL DENSITIES Density (June–February) Species Region Harbor porpoise ....................................................................... Hood Canal (Bangor, Zelatched Point) ................................... East Whidbey (Everett) ........................................................... Bainbridge (Bremerton, Keyport) ............................................ Vashon (Manchester) .............................................................. Puget Sound ............................................................................ Puget Sound ............................................................................ Dabob Bay ............................................................................... Puget Sound ............................................................................ Dabob Bay ............................................................................... Everett ..................................................................................... Keyport/Manchester ................................................................ Dabob Bay ............................................................................... Dall’s porpoise ......................................................................... Steller sea lion ......................................................................... California sea lion .................................................................... Harbor seal .............................................................................. 0.44 0.75 0.53 0.25 0.039 0.0368 0.0251 0.1266 0.279 2.2062 1.219 9.918 amozie on DSK9F9SC42PROD with RULES Sources: Navy, 2015; Smultea et al., 2017 (harbor porpoise). Exposure Estimates To quantitatively assess exposure of marine mammals to noise from pile driving activities, we use three methods, determined by the species’ spatial and temporal occurrence. For species with rare or infrequent occurrence at a given installation during the in-water work window, the likelihood of interaction was reviewed on the basis of past records of occurrence (described in detail in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018)) and the potential maximum duration of work days at each installation, as well as total work days for all installations. Occurrence of the species in this category (i.e., large whales, killer whales, elephant seal (all installations), and Dall’s porpoise (Hood Canal)) would not be anticipated to extend for multiple days. For the large whales and killer whales, the duration of occurrence was set to two days, expected to be roughly equivalent to one transit in the vicinity of a project site. The calculation for species with rare or infrequent occurrence is: Exposure estimate = expected group size × probable duration For species that occur regularly but for which site-specific abundance information is not available, density estimates (Table 8) were used to determine the number of animals potentially exposed on any one day of pile driving or extraction. The calculation for density-based analysis of species with regular occurrence is: Exposure estimate = N (density) × ZOI (area) × maximum days of pile driving For remaining species, site-specific abundance information (i.e., average VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 monthly maximum over the time period when pile driving will occur) was used: Exposure estimate = Abundance × maximum days of pile driving Large Whales—For each species of large whale (i.e., humpback whale, minke whale, and gray whale), we assume rare and infrequent occurrence at all installations. For all three species, if observed, they typically occur singly or in pairs. Therefore, for all three species, we assume that a pair of whales may occur in the vicinity of an installation for a total of two days. We do not expect that this would happen multiple times, and cannot predict where such an occurrence may happen, so would authorize a total of four takes by Level B harassment of each species in total for the 5-year duration (across all installations). It is important to note that the Navy will implement a shutdown of pile driving activity if any large whale is observed within any defined harassment zone (see Mitigation section below). Therefore, the take number is intended to provide insurance against the event that whales occur within Level B harassment zones that cannot be fully observed by monitors. As a result of this mitigation, we do not believe that Level A harassment is a likely outcome upon occurrence of any large whale. While the calculated Level A harassment zone is as large as 2.5 km for impact driving of 36-in steel piles without a bubble curtain (ranging from 136–736 m for other impact driving scenarios), this requires that a whale be present at that range for the full assumed duration of 1,000 pile strikes (expected to require 1.5 hours). Given the Navy’s commitment to shut down upon observation of a large whale, and the PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 likelihood that the presence of a large whale in the vicinity of any Navy installation would be known due to reporting via Orca Network (see Monitoring and Reporting), we do not expect that any whale would be present within a Level A harassment zone for sufficient duration to actually experience permanent threshold shift (PTS). Killer Whales—For killer whales, the take number is derived via the same process described above for large whales. For transient killer whales, we assume an average group size of six whales occurring for a period of two days. The resulting total take number of 12 would also account for the low probability that a larger group occurred once. For resident killer whales, we assume an average group size of 20 whales occurring for two days. This is equivalent to the expected pod size for J pod, which is most likely to occur in the vicinity of Navy installations, but would also account for the unlikely occurrence of L pod (with a size of approximately 40 whales) once in the vicinity of any Navy installation. As with large whales, the Navy will implement shutdown of pile driving activity at any time that any killer whale is observed within any calculated harassment zone. We expect this to minimize the extent and duration of any Level B harassment. Given the small size of calculated Level A harassment zones—maximum of 63 m for the worstcase scenario of impact-driven 36-in steel piles with no bubble curtain, other scenarios range from 1–10 m—we do not anticipate any potential for Level A harassment of killer whales. Dall’s Porpoise—Using the density given in Table 8, the largest appropriate E:\FR\FM\17APR1.SGM 17APR1 amozie on DSK9F9SC42PROD with RULES 15974 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations ZOI for each of the four installations in Puget Sound, and the number of days associated with each of these installations (as indicated in harbor porpoise section below), the total estimated exposure of Dall’s porpoises above Level B harassment thresholds is 146. Dall’s porpoises are not expected to occur in Hood Canal. Dall’s porpoises are not expected to occur frequently in the vicinity of Navy installations and have not been reported in recent years. This total take authorization number (146) is applied to all installations over the 5-year duration. The Navy will implement shutdown of pile driving activity at any time if a Dall’s porpoise is observed in any harassment zone. Therefore, the take estimate is precautionary in accounting for potential occurrence in areas that cannot be visually observed or in the event that porpoises appear within Level B harassment zones before shutdown can be implemented. As was described for large whales, as a result of this mitigation, we do not believe that Level A harassment is a likely outcome. While the calculated Level A harassment zone is as large as 2.5 km for impact driving of 36-in steel piles without a bubble curtain (ranging from 136–541 m for other impact driving scenarios), this requires that a porpoise be present at that range for the full assumed duration of 1,000 pile strikes (expected to require 1.5 hours). Given the Navy’s commitment to shut down upon observation of a porpoise, and the likelihood that a porpoise would engage in aversive behavior prior to experiencing PTS, we do not expect that any porpoise would be present within a Level A harassment zone for sufficient duration to actually experience PTS. Harbor Porpoise—Level B harassment estimates for harbor porpoise were calculated for each installation using the appropriate density given in Table 8, the largest appropriate ZOI for each installation, and the appropriate number of days. • NBK Bangor: Using the Hood Canal sub-region density, 119 days of pile driving, and the largest ZOI calculated for pile driving at this location (40.9 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of 2,142 incidents of Level B harassment exposure for harbor porpoise. • Zelatched Point: Using the Hood Canal sub-region density, 20 days of pile driving, and the largest ZOI calculated for pile driving at this location (75.24 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of 662 incidents of Level B harassment exposure for harbor porpoise. VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 • NBK Bremerton: Using the Bainbridge sub-region density, 168 days of pile driving, and the largest ZOI calculated for pile driving at this location (15 km2 for vibratory installation of sheet steel piles) produces an estimate of 1,336 incidents of Level B harassment exposure for harbor porpoise. • NBK Keyport: Using the Bainbridge sub-region density, 20 days of pile driving, and the largest ZOI calculated for pile driving at this location (4.9 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of 52 incidents of Level B harassment exposure for harbor porpoise. • NBK Manchester: Using the Vashon sub-region density, 50 days of pile driving, and the largest ZOI calculated for vibratory removal of timber piles (7.8 km2 for vibratory extraction of timber piles) produces an estimate of 98 incidents of Level B harassment exposure for harbor porpoise. • NS Everett: Using the East Whidbey sub-region density, 78 days of pile driving, and the largest ZOI calculated for vibratory extraction of timber piles (9.4 km2) produces an estimate of 552 incidents of Level B harassment exposure for harbor porpoise. Although some vibratory installation is anticipated for a single steel pile, we anticipate this would occur for only a brief period. Therefore, use of the assumed zone for vibratory extraction of timber piles is appropriate in accounting for reasonably expected marine mammal exposure at this location. The Navy will implement shutdown of pile driving activity at any time if a harbor porpoise is observed in any harassment zone. Therefore, the take estimate is precautionary in accounting for potential occurrence in areas that cannot be visually observed or in the event that porpoises appear within Level B harassment zones before shutdown can be implemented. As was described for large whales, as a result of this mitigation, we do not believe that Level A harassment is a likely outcome. While the calculated Level A harassment zone is as large as 2.5 km for impact driving of 36-in steel piles without a bubble curtain (ranging from 136–541 m for other impact driving scenarios), this requires that a porpoise be present at that range for the full assumed duration of 1,000 pile strikes (expected to require 1.5 hours). Given the Navy’s commitment to shut down upon observation of a porpoise, and the likelihood that a porpoise would engage in aversive behavior prior to experiencing PTS, we do not expect that any porpoise would be present within a PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 Level A harassment zone for sufficient duration to actually experience PTS. Steller Sea Lion—Level B harassment exposure estimates for Steller sea lions were calculated for each installation using the appropriate density given in Table 8 or site-specific abundance, the largest appropriate ZOI for each installation, and the appropriate number of days. Additional detail regarding sitespecific abundance information was provided in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018). • NBK Bangor: The average of the monthly maximum counts during the in-water work window provides an estimate of three Steller sea lions present per day. Using this value for 119 days results in an estimate of 357 incidents of Level B harassment exposure. • Zelatched Point: Using the Dabob Bay density value (Table 8), 20 days of pile driving, and the largest ZOI calculated for pile driving at this location (75.24 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of 38 incidents of Level B harassment exposure for Steller sea lions. • NBK Bremerton: Using the Puget Sound density value (Table 8), 168 days of pile driving, and the largest ZOI calculated for pile driving at this location (15 km2 for vibratory installation of sheet steel piles) produces an estimate of 93 incidents of Level B harassment exposure for Steller sea lions. • NBK Keyport: Using the Puget Sound density value (Table 8), 20 days of pile driving, and the largest ZOI calculated for pile driving at this location (4.9 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of four incidents of Level B harassment exposure for Steller sea lions. • NBK Manchester: Site-specific occurrence data indicate that 10 Steller sea lions may be present on any given day. Using this average value for 50 days results in an estimate of 500 incidents of Level B harassment exposure. • NS Everett: Using the Puget Sound density value (Table 8), 78 days of pile driving, and the largest ZOI calculated for this location (9.4 km2) produces an estimate of 27 incidents of Level B exposure for Steller sea lion. Given the small size of calculated Level A harassment zones—maximum of 43 m for the worst-case scenario of impact-driven 36-in steel piles with no bubble curtain, other scenarios range from 1–11 m—we do not anticipate any E:\FR\FM\17APR1.SGM 17APR1 amozie on DSK9F9SC42PROD with RULES Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations potential for Level A harassment of Steller sea lions. California Sea Lions—Level B harassment exposure estimates for California sea lions were calculated for each installation using the appropriate density given in Table 8 or site-specific abundance, the largest appropriate ZOI for each installation, and the appropriate number of days. Additional detail regarding site-specific abundance information was provided in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018). • NBK Bangor: The average of the monthly maximum counts during the in-water work window provides an estimate of 49 California sea lions per day. Using this value for 119 days results in an estimate of 5,831 incidents of Level B harassment exposure. • Zelatched Point: Using the Dabob Bay density value (Table 8), 20 days of pile driving, and the largest ZOI calculated for pile driving at this location (75.24 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of 420 incidents of Level B harassment exposure for California sea lions. • NBK Bremerton: The average of the monthly maximum counts during the in-water work window provides an estimate of 69 California sea lions per day. Using this value for 168 days results in an estimate of 11,592 incidents of Level B harassment exposure. • NBK Keyport: Using the Puget Sound density value (Table 8), 20 days of pile driving, and the largest ZOI calculated for pile driving at this location (4.9 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of 12 incidents of Level B harassment exposure for California sea lions. • NBK Manchester: Site-specific occurrence data indicate that 43 California sea lions may be present on any given day. Using this average value for 50 days results in an estimate of 2,150 incidents of Level B harassment exposure. • NS Everett: The average of the monthly maximum counts during the in-water work window provides an estimate of 66 California sea lions per day. Using this value for 78 days results in an estimate of 5,148 incidents of Level B harassment exposure. Given the small size of calculated Level A harassment zones—maximum of 43 m for the worst-case scenario of impact-driven 36-in steel piles with no bubble curtain, other scenarios range from 1–11 m—we do not anticipate any VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 potential for Level A harassment of California sea lions. Harbor Seal—Harbor seals are expected to occur year-round at all installations, with the greatest numbers expected at installations with nearby haul-out sites. Level B harassment exposure estimates for harbor seals were calculated for each installation using the appropriate density given in Table 8 or site-specific abundance, the largest appropriate ZOI for each installation, and the appropriate number of days. Additional detail regarding site-specific abundance information was provided in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018). Harbor seals are expected to be the most abundant marine mammal at all installations, often occurring in and around existing in-water structures in a way that may restrict observers’ ability to adequately observe seals and subsequently implement shutdowns. In addition, the calculated Level A harassment zones are significantly larger than those for sea lions, which may also be abundant at various installations at certain times of year. For harbor seals, the largest calculated Level A harassment zone is 736 m (compared with a maximum zone of 43 m for sea lions), calculated for the worst-case scenario of impact-driven 36-in steel piles without use of the bubble curtain. Other scenarios range from 25–158 m. Therefore, we assume that some Level A harassment is likely to occur for harbor seals and provide installation-specific estimates below. • NBK Bangor: Site-specific occurrence data indicate that as many as 28 harbor seals hauled out per day under Marginal Wharf (or were observed swimming in adjacent waters). Assuming a few other individuals may be present elsewhere on the Bangor waterfront, we estimate that 35 harbor seals may be present per day near the installation during summer and early fall, which are expected to be months with greatest abundance of seals. Using this value for 119 days results in an estimate of 4,165 incidents of Level B harassment exposure. Considering the largest Level A harassment zone expected to typically occur at NBK Bangor (158 m), and assuming as a precaution that one seal per day could remain within the calculated zone for a sufficient period to accumulate enough energy to result in PTS, we estimate 119 incidents of take by Level A harassment. It is important to note that the estimate of potential Level A harassment for NBK Bangor is expected to be an overestimate, as planned projects are not expected to PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 15975 occur near Marginal Wharf—the location where most harbor seal activity occurs. • Zelatched Point: Using the Dabob Bay density value (Table 8), 20 days of pile driving, and the largest ZOI calculated for pile driving at this location (75.24 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of 14,925 incidents of Level B harassment exposure for harbor seals. The largest calculated Level A harassment zone at Zelatched Point would be 158 m. However, because harbor seals are not known to haul out or congregate in the vicinity of in-water structures, as is the case at NBK Bangor, we do not anticipate that Level A harassment will occur at Zelatched Point and will not authorize such take. • NBK Bremerton: Site-specific occurrence data indicate that approximately 11 harbor seals may be present per day. Using this value for 168 days results in an estimate of 1,848 incidents of Level B harassment exposure. The largest Level A harassment zone at NBK Bremerton would be 86 m and, given the lack of regular presence of harbor seals in close proximity to existing in-water structures, we do not anticipate that Level A harassment will occur at NBK Bremerton and will not authorize such take. • NBK Keyport: No harbor seal haulouts have been identified at this installation. Using the Puget Sound density value (Table 8), 20 days of pile driving, and the largest ZOI calculated for pile driving at this location (4.9 km2 for vibratory installation of 30- or 36-in steel piles) produces an estimate of 119 incidents of Level B harassment exposure for harbor seals. Given the lack of haul-outs and of regular harbor seal presence at this installation, we do not anticipate that Level A harassment will occur at NBK Keyport and will not authorize such take. • NBK Manchester: No harbor seal haul-outs have been identified at this installation. Using the appropriate density value (Table 8), 50 days of pile driving, and the largest ZOI calculated for vibratory extraction of timber piles (7.8 km2) produces an estimate of 477 incidents of Level B harassment exposure for harbor seals. Given the lack of haul-outs and of regular harbor seal presence at this installation, we do not anticipate that Level A harassment will occur at NBK Manchester and will not authorize such take. • NS Everett: The average of the monthly maximum counts during the in-water work window provides an estimate of 212 seals per day. Using this E:\FR\FM\17APR1.SGM 17APR1 15976 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations value for 78 days results in an estimate of 16,536 incidents of Level B harassment exposure. The largest Level A harassment zone calculated for NS Everett (158 m) would occur for only one day during impact driving of the single 36-in steel pile. During the remainder of pile driving at this installation, the largest Level A harassment zone would be 34 m (impact driving of 24-in concrete piles). Given the abundant seal population at this site, we assume that some portion of the seal population may be present and unobserved within these zones for a sufficient period to accumulate enough energy to result in PTS. For the larger zone, we assume that 11 seals (five percent of animals present) may occur within the Level A harassment zone for such a duration, while for the smaller zone associated with concrete piles, we assume that two seals (one percent of animals present) of the population may occur within the zone for such a duration. Therefore, we estimate a total number of 165 incidents of take by Level A harassment (i.e., two seals on each of the 77 concrete pile driving days in addition to 11 seals on the one day on which a steel pile would be installed). Northern Elephant Seal—Northern elephant seals are considered rare visitors to Puget Sound. However, solitary juvenile elephant seals have been known to sporadically haul out to molt in Puget Sound during spring and summer months. Because there are occasional sightings in Puget Sound, we reason that exposure of up to one seal to noise above Level B harassment thresholds could occur for a two-day duration. This event could occur at any installation over the 5-year duration of these regulations. The total amount of take by Level B harassment that may be authorized for all species and installations is summarized in Table 9 below. Take by Level A harassment may be authorized only for harbor seals occurring at NBK Bangor and NS Everett (a total of 284 such incidents, as detailed above). TABLE 9—ESTIMATED TAKE BY LEVEL B HARASSMENT Species Bangor Zelatched Point Keyport Manchester Everett Percent 1 Total Humpback whale ............................................................. Applies across all installations 4 0.2 Minke whale .................................................................... Applies across all installations 4 0.02 Gray whale ...................................................................... Applies across all installations 4 0.6 Killer whale (transient) .................................................... Applies across all installations 12 4.9 Killer whale (resident) ..................................................... Applies across all installations 40 48.2 Dall’s porpoise ................................................................. Applies across all installations 146 0.6 4,842 1,019 25,153 38,585 43.1 2.4 8.5 n/a 2 0.001 Harbor porpoise .............................................................. Steller sea lion ................................................................ California sea lion ........................................................... Harbor seal ...................................................................... 2,142 357 5,831 4,680 662 38 420 14,925 Elephant seal .................................................................. 1 Please 1,336 93 11,592 1,848 52 4 12 119 98 500 2,150 477 Applies across all installations 552 27 5,148 16,536 see Small Numbers Analysis for more details about these percentages. Mitigation amozie on DSK9F9SC42PROD with RULES Bremerton Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (‘‘least practicable adverse impact’’). NMFS does not have a regulatory definition for ‘‘least practicable adverse impact.’’ However, NMFS’s implementing regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, we carefully consider two primary factors: (1) The manner in which, and the degree to which, implementation of the measure(s) is expected to reduce impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses. This analysis will consider such things as the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the likelihood of successful implementation. (2) The practicability of the measure for applicant implementation. Practicability of implementation may consider such things as cost, impact on operations, personnel safety, and practicality of implementation. The mitigation strategies described below largely follow those required and successfully implemented under previous incidental take authorizations PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 issued in association with similar construction activities. Measurements from similar pile driving events were coupled with practical spreading loss and other relevant information to estimate ZOIs (see ‘‘Estimated Take’’); these ZOI values were used to develop mitigation measures for pile driving activities at the six installations. Background discussion related to underwater sound concepts and terminology was provided in our Federal Register notice of proposed rulemaking (83 FR 9366; March 5, 2018). The ZOIs were used to inform the mitigation zones that would be established to prevent Level A harassment and to minimize Level B harassment for all cetacean species, while providing estimates of the areas within which Level B harassment might occur. During installation of steel piles, the Navy will use vibratory driving to the maximum extent practicable. In addition to the specific measures described later in this section, the Navy will conduct briefings for construction E:\FR\FM\17APR1.SGM 17APR1 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations supervisors and crews, the marine mammal monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures. Other mitigation requirements committed to by the Navy but not relating to marine mammals (e.g., construction best management practices) are described in section 11 of the Navy’s application. amozie on DSK9F9SC42PROD with RULES Timing As described previously, the Navy will adhere to in-water work windows designed for the protection of fish. These timing windows would also benefit marine mammals by limiting the annual duration of construction activities. At NBK Bangor and Zelatched Point, the Navy will adhere to a July 16 through January 15 window, while at the remaining facilities this window is extended to February 15. On a daily basis, in-water construction activities will occur only during daylight hours (sunrise to sunset) except from July 16 to September 15 when impact pile driving will only occur starting two hours after sunrise and ending two hours before sunset in order to protect marbled murrelets (Brachyramphus marmoratus) during the nesting season. Monitoring and Shutdown for Pile Driving The following measures apply to the Navy’s mitigation through shutdown and disturbance zones: Shutdown Zone—The purpose of a shutdown zone is to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of a marine mammal entering the defined area), thus preventing some undesirable outcome, such as auditory injury or behavioral disturbance of sensitive species (serious injury or death are unlikely outcomes even in the absence of mitigation measures). For all pile driving activities, the Navy will establish a minimum shutdown zone with a radial distance of 10 m. This minimum zone is intended to prevent the already unlikely possibility of physical interaction with construction equipment and to establish a precautionary minimum zone with regard to acoustic effects. Relevant information regarding Level A harassment zones was provided in Tables 3–5 and calculated isopleth distances were provided in Table 6. In many cases, especially for vibratory driving, the minimum shutdown zone of VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 10 m is expected to contain the area in which auditory injury could occur. In all circumstances where the predicted Level A harassment zone exceeds the minimum zone, the Navy shall implement a shutdown zone equal to the predicted Level A harassment zone (see Table 6). In addition, the Navy will implement shutdown upon observation of any cetacean within a calculated Level B harassment zone (see Table 7). Disturbance Zone—Disturbance zones are the areas in which sound pressure levels equal or exceed 160 and 120 dB rms (for impact and vibratory pile driving, respectively). Disturbance zones provide utility for monitoring conducted for mitigation purposes (i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones and, as noted above, the disturbance zones act as de facto shutdown zones for cetaceans. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone, and thus prepare for potential shutdowns of activity. For cetaceans, the Navy will implement shutdowns upon observation of any cetacean within a disturbance zone (while acknowledging that some disturbance zones are too large to practicably monitor)—these will also be recorded as incidents of harassment. For pinnipeds, the primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail later (see ‘‘Monitoring and Reporting’’). Nominal radial distances for disturbance zones are shown in Table 7. In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer’s location and the location of the pile being driven will be known, and the location of the animal may be estimated as a distance from the observer and then compared to the location from the pile. It may then be estimated whether the animal was exposed to sound levels constituting incidental harassment on the basis of predicted distances to relevant thresholds in post-processing of observational data, and a precise accounting of observed incidents of harassment created. This information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes, in cases where the entire zone was not monitored. Monitoring Protocols—Monitoring will be conducted before, during, and after pile driving activities. In addition, PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 15977 observers will record all incidents of marine mammal occurrence, regardless of distance from activity, and monitors will document any behavioral reactions in concert with distance from piles being driven. Observations made outside the shutdown zone will not result in shutdown; that pile segment will be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities would be halted. Monitoring will take place from 15 minutes prior to initiation through 30 minutes post-completion of pile driving activities. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes. Prior to the start of pile driving on any day, the Navy will contact and/or review the latest sightings data from the Orca Network and/or Center for Whale Research to determine the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 residents, scientists, and government agency personnel in the United States and Canada, and includes passive acoustic detections. The presence of a killer whale in the vicinity of any of the six installations would likely be a notable event, drawing public attention and media scrutiny. With this level of coordination in the region of activity, the Navy should be able to effectively receive real-time information on the presence or absence of whales, sufficient to inform the day’s activities. Pile driving will not occur if there is a risk of incidental harassment of a southern resident killer whale. The following additional measures apply to visual monitoring: (1) Monitoring will be conducted by qualified, trained protected species observers, who will be placed at the best vantage point(s) practicable (i.e., from a small boat, construction barges, on shore, or any other suitable location) to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Observers shall have no other construction-related tasks while conducting monitoring. Observers should have the following minimum qualifications: • Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water’s surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target; E:\FR\FM\17APR1.SGM 17APR1 amozie on DSK9F9SC42PROD with RULES 15978 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations • Ability to conduct field observations and collect data according to assigned protocols; • Experience or training in the field identification of marine mammals, including the identification of behaviors; • Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; • Writing skills sufficient to document observations including, but not limited to: the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury of marine mammals from construction noise within a defined shutdown zone; and marine mammal behavior; and • Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary. Observer teams employed by the Navy in satisfaction of the mitigation and monitoring requirements described herein must meet the following additional requirements: • Independent observers (i.e., not construction personnel) are required. • At least one observer must have prior experience working as an observer. • Other observers may substitute education (degree in biological science or related field) or training for experience. • Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer. (2) Prior to the start of pile driving activity, the shutdown zone will be monitored for 15 minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; marine mammals will be allowed to remain in the shutdown zone (i.e., must leave of their own volition), and their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible (i.e., when not obscured by dark, rain, fog, etc.). In addition, if such conditions should arise during impact pile driving that is already underway, the activity will halt. (3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile and for thirty minutes following the conclusion of pile driving. Soft Start The use of a soft start procedure is believed to provide additional protection to marine mammals by warning marine mammals or providing them with a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in ‘‘bouncing’’ of the hammer as it strikes the pile, resulting in multiple ‘‘strikes.’’ The Navy will utilize soft start techniques for impact pile driving. We require an initial set of three strikes from the impact hammer at reduced energy, followed by a 30second waiting period, then 2 subsequent 3-strike sets. Soft start will be required at the beginning of each day’s impact pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer; the requirement to implement soft start for impact driving is independent of whether vibratory driving has occurred within the prior 30 minutes. Bubble Curtain Sound levels can be greatly reduced during impact pile driving using sound attenuation devices, including bubble curtains, which create a column of air bubbles rising around a pile from the substrate to the water surface. The air bubbles absorb and scatter sound waves emanating from the pile, thereby reducing the sound energy. Bubble curtains may be confined or unconfined. Cushion blocks are also commonly used by construction contractors in order to protect equipment and the driven pile; use of cushion blocks typically reduces emitted sound pressure levels to some extent. The literature presents a wide array of observed attenuation results for bubble curtains (see Appendix B of the Navy’s application). The variability in attenuation levels is due to variation in design, as well as differences in site PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 conditions and difficulty in properly installing and operating in-water attenuation devices. As a general rule, reductions of greater than 10 dB cannot be reliably predicted. Prior monitoring by the Navy during a project at NBK Bangor reported a range of measured values for realized attenuation mostly within 6 to 12 dB, but with an overall average of 9 dB in effective attenuation (Illingworth and Rodkin, 2012). The Navy will use a bubble curtain during impact driving of all steel piles greater than 14-in diameter in water depths greater than 2 ft (0.67 m), except at NBK Bremerton and Keyport. Bubble curtains will not be used during impact driving of smaller steel piles or other pile types due to the relatively low source levels, as the requirement to deploy the curtain system at each driven pile results in a significantly lower production rate. Where a bubble curtain is used, the contractor will be required to turn it on prior to the soft start in order to flush fish from the area closest to the driven pile. Bubble curtains cannot be used at NBK Bremerton and Keyport due to the risk of disturbing contaminated sediments at these sites. Sediment contamination within Sinclair Inlet, including the project areas at NBK Bremerton, includes a variety of metals and organic chemicals originating from human sources. The marine sediments have been affected by past shipyard operations, leaching from creosotetreated piles, and other activities in Sinclair Inlet. Sediments at the project sites and adjacent to the piers at Bremerton have a pollution control plan for various metals, polycyclic aromatic hydrocarbons, polychlorinated biphenyls, and other semivolatile organic compounds (SVOC), and active cleanup is occurring pursuant to the terms of an agreement developed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in cooperation with the U.S. Environmental Protection Agency and the Washington Department of Ecology. The sediment at and near Keyport in Liberty Bay also has a pollution control plan, for multiple heavy metals, polychlorinated aromatic hydrocarbons, phthalates, and various other SVOCs. The Navy will assess the use of bubble curtains at NBK Keyport on a project-by-project basis. To avoid loss of attenuation from design and implementation errors, the Navy will require specific bubble curtain design specifications, including testing requirements for air pressure and flow at each manifold ring prior to initial impact hammer use, and a requirement for placement on the E:\FR\FM\17APR1.SGM 17APR1 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations substrate. The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column. The lowest bubble ring shall be in contact with the mudline for the full circumference of the ring, and 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. The contractor shall also train personnel in the proper balancing of air flow to the bubblers, and must 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 standards shall occur prior to use for impact driving. We have carefully evaluated the Navy’s planned mitigation measures and considered a range of other measures in the context of ensuring that we prescribe the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Based on our evaluation of these measures, we have determined that the planned mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses. amozie on DSK9F9SC42PROD with RULES Monitoring and Reporting In order to issue an LOA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of the authorized taking. NMFS’s MMPA implementing regulations further describe the information that an applicant should provide when requesting an authorization (50 CFR 216.104(a)(13)), including the means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on populations of marine mammals. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of significant interactions with marine mammal species in action area (e.g., animals that came close to the vessel, contacted the gear, or are otherwise rare or displaying unusual behavior). VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas). • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors. • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks. • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or important physical components of marine mammal habitat). • Mitigation and monitoring effectiveness. Coordination and Plan Development An installation-specific marine mammal monitoring plan for each year’s anticipated work will be developed by the Navy and presented each year for approval by NMFS prior to the start of construction. Final monitoring plans will be prepared and submitted to NMFS within 30 days following receipt of comments on the draft plans from NMFS. Please see Appendix D of the Navy’s application for a marine mammal monitoring plan template. During each in-water work period covered by an LOA, the Navy will periodically update NMFS on the progress of ongoing projects, as needed. Visual Marine Mammal Observations The Navy will collect sighting data and behavioral responses to pile driving activity for marine mammal species observed in the region of activity during the period of activity. The number and location of required observers will be determined specific to each installation on an annual basis, depending on the nature of work anticipated (including the size of zones to be monitored). All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Navy will monitor all shutdown zones at all times, and will monitor disturbance zones to the extent practicable (some zones are too large to fully observe (Table 7)). The PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 15979 Navy will conduct monitoring before, during, and after pile driving, with observers located at the best practicable vantage points. As noted above, the Navy plans to monitor the full shutdown zone with appropriate marine mammal monitors. By developing monitoring plans based on specific project details, an adequate number of observers will be assigned to provide full coverage of the shutdown zones. Survey boats will be utilized for all projects that have monitoring zones extending beyond the visual survey range of shoreline monitors. As described in ‘‘Mitigation’’ and based on our requirements, the Navy will implement the following procedures for pile driving: • Marine mammal observers will be located at the best vantage point(s) in order to properly see the entire shutdown zone and as much of the disturbance zone as possible. • During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals. • If the shutdown zones are obscured by fog or poor lighting conditions, pile driving at that location will not be initiated until that zone is visible. Should such conditions arise while impact driving is underway, the activity will halt. • The shutdown zone around the pile will be monitored for the presence of marine mammals before, during, and after all pile driving activity, while disturbance zone monitoring will be implemented according to the schedule described here. Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. Monitoring biologists will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to the protocol will be coordinated between NMFS and the Navy. Data Collection We require that observers use standardized data forms. Among other pieces of information, the Navy will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and a description of specific actions that ensued and resulting behavior of the animal, if any. We require that, at a minimum, the following information be collected on the sighting forms: • Date and time that monitored activity begins or ends; • Construction activities occurring during each observation period; E:\FR\FM\17APR1.SGM 17APR1 15980 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations • Weather parameters (e.g., wind speed, percent cloud cover, visibility); • Water conditions (e.g., sea state, tide state); • Species, numbers, and, if possible, sex and age class of marine mammals; • Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity; • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; • Description of implementation of mitigation measures (e.g., shutdown or delay). • Locations of all marine mammal observations; and • Other human activity in the area. The Navy will note in behavioral observations, to the extent practicable, if an animal has remained in the area during construction activities. Therefore, it may be possible to identify if the same animal or different individuals are being exposed. Acoustic Monitoring The Navy will conduct hydroacoustic monitoring for a subset of impact-driven steel piles for projects including more than three piles where a bubble curtain is used. The USFWS has imposed requirements relating to impact driving of steel piles, including restrictions on unattenuated driving of such piles, as a result of concern regarding impacts to the ESA-listed marbled murrelet. If USFWS allows the Navy to conduct minimal driving of steel piles without the use of the bubble curtain, baseline sound measurements of steel pile driving will occur prior to the implementation of noise attenuation to evaluate the performance of the device. Impact pile driving without noise attenuation will be limited to the number of piles necessary to obtain an adequate sample size for each project. amozie on DSK9F9SC42PROD with RULES Marine Mammal Surveys Subject to funding availability, the Navy will continue pinniped haul-out survey counts at specific installations. Biologists conduct counts of seals and sea lions at NBK Bremerton, Bangor, Manchester, and NS Everett. Counts are conducted several times per month, depending on the installation. All animals are identified to species where possible. This information aids in determination of seasonal use of each site and trends in the number of animals. Reporting The Navy will submit a draft annual report to NMFS within 90 days of the VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 completion of each year’s monitoring effort. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within 30 days following resolution of comments on the draft report. The Navy will also submit a comprehensive summary report covering all activities conducted under the incidental take regulations. Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ by mortality, serious injury, and Level A or Level B harassment, we consider other factors, such as the likely nature of any behavioral responses (e.g., intensity, duration), the context of any such responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality). Pile driving activities associated with the maintenance projects have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 disturbance) only (for all species other than the harbor seal) from underwater sounds generated from pile driving. Potential takes could occur if individual marine mammals are present in the ensonified zone when pile driving is happening. No serious injury or mortality would be expected even in the absence of the planned mitigation measures. For all species other than the harbor seal, no Level A harassment is anticipated given the nature of the activities, i.e., much of the anticipated activity would involve vibratory driving and/or installation of small-diameter, non-steel piles, and measures designed to minimize the possibility of injury. The potential for injury is small for cetaceans and sea lions, and is expected to be essentially eliminated through implementation of the planned mitigation measures—use of the bubble curtain for larger steel piles at most installations, soft start (for impact driving), and shutdown zones. Impact driving, as compared with vibratory driving, has source characteristics (short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks) that are potentially injurious or more likely to produce severe behavioral reactions. Given sufficient notice through use of soft start, marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious or resulting in more severe behavioral reactions. Environmental conditions in inland waters are expected to generally be good, with calm sea states, and we expect conditions would allow a high marine mammal detection capability, enabling a high rate of success in implementation of shutdowns to avoid injury. As described previously, there are multiple species that should be considered rare in the project areas and for which we would authorize only nominal and precautionary take of a single group for a minimal period of time (two days). Therefore, we do not expect meaningful impacts to these species (i.e., humpback whale, gray whale, minke whale, transient and resident killer whales, and northern elephant seal) and find that the total marine mammal take from each of the specified activities will have a negligible impact on these marine mammal species. For remaining species, we discuss the likely effects of the specified activities in greater detail. Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to E:\FR\FM\17APR1.SGM 17APR1 amozie on DSK9F9SC42PROD with RULES Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff, 2006; HDR, Inc., 2012; Lerma, 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. The pile driving activities analyzed here are similar to, or less impactful than, numerous other construction activities conducted in San Diego Bay, San Francisco Bay, and in the Puget Sound region, which have taken place with no known long-term adverse consequences from Level B harassment. The Navy has conducted multi-year activities potentially affecting marine mammals, and typically involving greater levels of activity than is contemplated here in various locations such as San Diego Bay and some of the installations considered herein (NBK Bangor and NBK Bremerton). Reporting from these activities has similarly shown no apparently consequential behavioral reactions or long-term effects on marine mammal populations (Lerma, 2014; Navy, 2016). Repeated exposures of individuals to relatively low levels of sound outside of preferred habitat areas are unlikely to significantly disrupt critical behaviors. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring. While vibratory driving associated with some project components may produce sound at distances of many kilometers from the pile driving site, thus intruding on higher-quality habitat, the project sites themselves and the majority of sound fields produced by the specified activities are within industrialized areas. Therefore, we expect that animals annoyed by project sound would simply avoid the area and use more-preferred habitats. In addition to the expected effects resulting from authorized Level B harassment, we anticipate that harbor seals may sustain some limited Level A harassment in the form of auditory injury at two locations (NBK Bangor and VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 NS Everett), assuming they remain within a given distance of the pile driving activity for the full number of pile strikes. However, seals in these locations that experience PTS would likely only receive slight PTS, i.e., minor degradation of hearing capabilities within regions of hearing that align most completely with the energy produced by pile driving (the low-frequency region below 2 kHz), not severe hearing impairment or impairment in the regions of greatest hearing sensitivity. If hearing impairment occurs, it is most likely that the affected animal would lose a few decibels in its hearing sensitivity, which in most cases is not likely to meaningfully affect its ability to forage and communicate with conspecifics. As described above, we expect that marine mammals would be likely to move away from a sound source that represents an aversive stimulus, especially at levels that would be expected to result in PTS, given sufficient notice through use of soft start. In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of serious injury or mortality may reasonably be considered discountable; (2) as a result of the nature of the activity in concert with the planned mitigation requirements, injury is not anticipated for any species other than the harbor seal; (3) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; (4) the additional impact of PTS of a slight degree to few individual harbor seals at two locations is not anticipated to increase individual impacts to a point where any population-level impacts might be expected; (5) the absence of any significant habitat within the industrialized project areas, including known areas or features of special significance for foraging or reproduction; and (6) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In addition, although affected humpback whales may be from DPSs that are listed under the ESA, and southern resident killer whales are depleted under the MMPA as well as listed as endangered under the ESA, it is unlikely that minor noise effects in a small, localized area of sub-optimal habitat would have any effect on the stocks’ ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 15981 minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the planned monitoring and mitigation measures, we find that the total marine mammal take from the Navy’s maintenance construction activities will have a negligible impact on the affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(A) of the MMPA for specified activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. Please see Table 9 for information relating to this small numbers analysis. We would authorize incidental take of 12 marine mammal stocks. The total amount of taking that could be authorized under these regulations is less than one percent for five of these, less than five percent for an additional two stocks, and less than ten percent for another stock, all of which we consider relatively small percentages and we find are small numbers of marine mammals relative to the estimated overall population abundances for those stocks. For the southern resident killer whale (in addition to the humpback whale, gray whale, minke whale, transient killer whale, and northern elephant seal), we would authorize take resulting from a brief exposure of one group of the stock. We believe that a single incident of take of one group of any of these species represents take of small numbers for that species. For the two affected stocks of harbor seal (Hood Canal and Northern Inland Waters), no recent abundance estimate is available. The most recent abundance estimates for harbor seals in Washington inland waters are from 1999, and it is generally believed that harbor seal populations have increased significantly during the intervening years (e.g., Mapes, 2013). However, we anticipate E:\FR\FM\17APR1.SGM 17APR1 amozie on DSK9F9SC42PROD with RULES 15982 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations that takes estimated to occur for harbor seals are likely to occur only within some portion of the relevant populations, rather than to animals from the stock as a whole. For example, takes anticipated to occur at NBK Bangor or at NS Everett would be expected to accrue to the same individual seals that routinely occur on haul-outs at these locations, rather than occurring to new seals on each construction day. Similarly, at Zelatched Point in Hood Canal many known haul-outs are at locations elsewhere in Hood Canal and, although a density estimate rather than haul-out count is used to inform the exposure estimate for Zelatched Point, we expect that exposed individuals would comprise some limited portion of the overall stock abundance. In summary, harbor seals taken as a result of the specified activities at each of the six installations are expected to comprise only a limited portion of individuals comprising the overall relevant stock abundance. Therefore, we find that small numbers of marine mammals will be taken relative to the population size of both the Hood Canal and Northern Inland Waters stocks of harbor seal. The estimated taking for harbor porpoise comprises greater than onethird of the best available stock abundance. However, due to the nature of the specified activity—construction activities occurring at six specific locations, rather than a mobile activity occurring throughout the stock range— the available information shows that only a portion of the stock would likely be impacted. Recent aerial surveys that inform the current abundance estimate for harbor porpoise involved effort broken down by region and subregion. According to the data available as a result of these surveys, the vast majority of harbor porpoise abundance occurs in the ‘‘northern waters’’ region, including the San Juan Islands and Strait of Juan de Fuca, where no Navy construction activity is planned to occur. The six installations considered here occur within the Hood Canal, North Puget Sound, and South Puget Sound regions, which contain approximately 24 percent of stock-wide harbor porpoise abundance (Jefferson et al., 2016). Therefore, we assume that affected individuals would most likely be from the 24 percent of the stock expected to occur in these regions. This figure itself may be an overestimate, as Navy facilities are located within only three of seven subregions within the North and South Puget Sound regions (i.e., East Whidbey, Bainbridge, and Vashon). However, at this finer scale, it is VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 possible that harbor porpoise individuals transit across subregions. In consideration of this conservative scenario, i.e., that 24 percent of the stock abundance is taken, we find that small numbers of marine mammals will be taken relative to the population size of the Washington inland waters stock of harbor porpoise. Based on the analysis contained herein of the activity (including the planned mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks. Impact on Availability of Affected Species for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by these actions. Therefore, we have determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Adaptive Management The regulations governing the take of marine mammals incidental to Navy maintenance construction activities contain an adaptive management component. The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable. The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs. Endangered Species Act (ESA) The southern resident killer whale, as well as multiple DPSs of humpback PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 whale, are listed under the ESA (see Table 3). The authorization of incidental take pursuant to the Navy’s specified activity would not affect any designated critical habitat. OPR initiated consultation with NMFS’s West Coast Regional Office (WCRO) under section 7 of the ESA on the promulgation of fiveyear regulations and the subsequent issuance of LOAs to the Navy under section 101(a)(5)(A) of the MMPA. On April 5, 2019, WCRO issued a final Biological Opinion concluding that OPR’s action will not jeopardize the continued existence of any ESA-listed species. National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must evaluate our proposed action (i.e., the promulgation of regulations and subsequent issuance of incidental take authorization) and alternatives with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 of the Companion Manual for NAO 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the action qualifies to be categorically excluded from further NEPA review. Classification Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this rule is not significant. Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. Navy is the sole entity that would be subject to the requirements of these regulations, and the U.S. Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. No comments were received regarding this certification. As a result, a regulatory flexibility analysis is not required and none has been prepared. E:\FR\FM\17APR1.SGM 17APR1 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. However, this rule does not contain a collection-of-information requirement subject to the provisions of the PRA because the applicant is a Federal agency. List of Subjects in 50 CFR Part 218 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: April 10, 2019. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set forth in the preamble, 50 CFR part 218 is amended as follows: PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 218 continues to read as follows: to maintenance construction activities, as defined in a Letter of Authorization (LOA). (b) The taking of marine mammals by the Navy may be authorized in a LOA only if it occurs within Washington inland waters in the vicinity of one of the following six naval installations: Naval Base Kitsap Bangor, Zelatched Point, Naval Base Kitsap Bremerton, Naval Base Kitsap Keyport, Naval Base Kitsap Manchester, and Naval Station Everett. § 218.21 Effective dates. Regulations in this subpart are effective from May 17, 2019 through May 17, 2024. § 218.22 Permissible methods of taking. Under LOAs issued pursuant to §§ 216.106 of this chapter and 218.26, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not intentionally, take marine mammals within the area described in § 218.20(b) by Level A or Level B harassment associated with maintenance construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. ■ § 218.23 Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. ■ 2. Add subpart C to read as follows: Subpart C—Taking Marine Mammals Incidental to U.S. Navy Marine Structure Maintenance and Pile Replacement in Washington Sec. 218.20 Specified activity and specified geographical region. 218.21 Effective dates. 218.22 Permissible methods of taking. 218.23 Prohibitions. 218.24 Mitigation requirements. 218.25 Requirements for monitoring and reporting. 218.26 Letters of Authorization. 218.27 Renewals and modifications of Letters of Authorization. 218.28–218.29 [Reserved] Subpart C—Taking Marine Mammals Incidental to U.S. Navy Marine Structure Maintenance and Pile Replacement in Washington amozie on DSK9F9SC42PROD with RULES § 218.20 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 Prohibitions. Notwithstanding takings contemplated in § 218.22 and authorized by a LOA issued under §§ 216.106 of this chapter and 218.26, no person in connection with the activities described in § 218.20 may: (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 218.26; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal specified in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses. § 218.24 Mitigation requirements. When conducting the activities identified in § 218.20(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.26 must be implemented. These mitigation measures shall include but are not limited to: PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 15983 (a) General conditions. (1) A copy of any issued LOA must be in the possession of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA; and (2) The Navy shall conduct briefings for construction supervisors and crews, the monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures. (b) Shutdown zones. (1) For all pile driving activity, the Navy shall implement a minimum shutdown zone of a 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease; (2) For all pile driving activity, the Navy shall implement shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 218.26. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease; (3) For all pile driving activity, the Navy shall designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 218.26. Anticipated observable zones within the designated monitoring zones shall be identified in annual Marine Mammal Monitoring Plans, subject to approval by NMFS. If any cetacean is observed outside the shutdown zone identified pursuant to paragraphs (b)(1) and (2) of this section, but within the designated monitoring zone, such operations shall cease. (c) Shutdown protocols. (1) The Navy shall deploy marine mammal observers as indicated in annual Marine Mammal Monitoring Plans, which shall be subject to approval by NMFS, and as described in § 218.25. (2) For all pile driving activities, a minimum of one observer shall be stationed at the active pile driving rig or in reasonable proximity in order to monitor the shutdown zone. (3) Prior to the start of pile driving on any day, the Navy shall take measures to ensure that southern resident killer whales are not located within the vicinity of the project area, including, but not limited to, contacting and/or reviewing the latest sightings data from the Orca Network and/or Center for Whale Research, including passive acoustic detections, to determine the location of the nearest marine mammal sightings. E:\FR\FM\17APR1.SGM 17APR1 amozie on DSK9F9SC42PROD with RULES 15984 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations (4) Monitoring shall take place from fifteen minutes prior to initiation of pile driving activity through thirty minutes post-completion of pile driving activity. Pre-activity monitoring shall be conducted for fifteen minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may commence only if observers have declared the shutdown zone clear of marine mammals during this period. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, the marine mammals shall be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior shall be monitored and documented. Monitoring shall occur throughout the time required to drive a pile. A determination that the shutdown zone is clear cannot be made unless the observer(s) have good visibility of the shutdown zone during the entire fifteenminute observation period (i.e., the entire shutdown zone must be visible to the naked eye and unobscured by dark, rain, fog, poor lighting conditions, etc.). (5) If a marine mammal approaches or enters the shutdown zone, the Navy shall halt all pile driving activities at that location. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. (6) If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the monitoring zone, the Navy must halt pile driving activities immediately using delay and shutdown procedures. Activities must not resume until the animal has been confirmed to have left the area or the fifteen-minute observation period has elapsed. (7) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Navy shall adhere to the following additional observer qualifications: (i) Independent observers (i.e., not construction personnel) are required. (ii) At least one observer must have prior experience working as an observer. VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 (iii) Other observers may substitute education (degree in biological science or related field) or training for experience. (iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer. (d) Soft start. The Navy shall use soft start techniques for impact pile driving. Soft start for impact drivers requires contractors to provide an initial set of three strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy threestrike sets. Soft start shall be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer. (e) Sound attenuation. The Navy shall employ a bubble curtain (or other sound attenuation device with proven typical performance of at least 8 decibels effective attenuation) during impact pile driving of steel piles greater than 14 inches diameter in water depths greater than 2 feet, except at Naval Base Kitsap Bremerton and Naval Base Kitsap Keyport. The Navy shall assess the potential for the use of bubble curtains at Keyport on a project-by-project basis. In addition, the Navy shall implement the following performance standards: (1) The bubble curtain must distribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column. (2) The lowest bubble ring shall be in contact with the mudline for the full circumference of the ring, and 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. (3) The Navy shall require that construction contractors train personnel in the proper balancing of air flow to the bubblers, and shall require that construction contractors submit an inspection/performance report for approval by the Navy within 72 hours following the performance test. Corrections to the attenuation device to meet the performance standards shall occur prior to impact driving. § 218.25 Requirements for monitoring and reporting. (a) Not later than March 1 of each year, the Navy shall develop and submit for NMFS’s approval an installationspecific Marine Mammal Monitoring Plan for each year’s anticipated work. Final monitoring plans shall be PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 prepared and submitted to NMFS within 30 days following receipt of comments on the draft plans from NMFS. (b) During each in-water work period, the Navy shall update NMFS every two months on the progress of ongoing projects. (c) Trained observers shall receive a general environmental awareness briefing conducted by Navy staff. At a minimum, training shall include identification of the marine mammals that may occur in the project vicinity and relevant mitigation and monitoring requirements. All observers shall have no other construction-related tasks while conducting monitoring. (d) For shutdown zone monitoring, the Navy shall report on implementation of shutdown or delay procedures, including whether the procedures were not implemented and why (when relevant). (e) The Navy shall deploy additional observers to monitor disturbance zones according to the minimum requirements defined in annual Marine Mammal Monitoring Plans, subject to approval by NMFS. These observers shall collect sighting data and behavioral responses to pile driving for marine mammal species observed in the region of activity during the period of activity, and shall communicate with the shutdown zone observer as appropriate with regard to the presence of marine mammals. All observers shall be trained in identification and reporting of marine mammal behaviors. (f) The Navy must conduct hydroacoustic monitoring for a subset of impact-driven steel piles for projects that include more than three such piles. When this requirement for monitoring of impact-driven steel piles is triggered, the Navy must also conduct hydroacoustic monitoring of a subset of impact-driven plastic piles (if applicable). (g) The Navy must submit annual summary, final, and comprehensive summary reports as described in this paragraph (g): (1) Navy shall submit an annual summary report to NMFS not later than 90 days following the end of construction for that year. Navy shall provide a final report within 30 days following resolution of comments on the draft report. These reports shall contain, at minimum, the following: (i) Date and time that monitored activity begins or ends; (ii) Construction activities occurring during each observation period; (iii) Weather parameters (e.g., wind speed, percent cloud cover, visibility); E:\FR\FM\17APR1.SGM 17APR1 amozie on DSK9F9SC42PROD with RULES Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations (iv) Water conditions (e.g., sea state, tide state); (v) Species, numbers, and, if possible, sex and age class of marine mammals; (vi) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity; (vii) Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; (viii) Description of implementation of mitigation measures (e.g., shutdown or delay); (ix) Locations of all marine mammal observations; and (x) Other human activity in the area. (2) Navy shall submit a comprehensive summary report to NMFS not later than ninety days following the conclusion of marine mammal monitoring efforts described in this subpart. (h) The Navy must submit reports of stranded, injured, or dead marine mammals as described in this paragraph (h): (1) In the event that a live marine mammal is found stranded, whether on shore or in or on any structure or vessel, the following steps shall be taken: (i) Project personnel who discover the marine mammal shall immediately notify the most appropriate onsite personnel with relevant expertise (e.g., marine mammal observers) as well as the Navy (if non-Navy project personnel initially discover the animal). (ii) The Navy shall then immediately notify the West Coast Regional Stranding Coordinator, NMFS, and, in consultation with the Stranding Coordinator, shall immediately notify the most appropriate qualified individual (i.e., biologist or veterinarian) to respond to the event. (iii) In the interim, or in the event that no qualified individual other than onsite marine mammal observers is available to respond to the event, the Navy shall manage the event response and shall take action to prevent any further deterioration of the animal’s condition, to the extent possible. Appropriate action may be specific to the event. At minimum, the Navy should provide shade for the animal (if possible), shall not move the animal or cause the animal to move, and shall suspend project activity until the situation is resolved. (iv) The Navy shall report the incident to the Office of Protected Resources (OPR), NMFS, within 48 hours after discovery. (2) In the unanticipated event that the activity defined in § 218.20 clearly causes the take of at least one marine VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 mammal in a prohibited manner, the Navy shall immediately cease such activity and report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS. Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with the Navy to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activities until notified by NMFS. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s). Photographs may be taken once the animal(s) have been moved from the waterfront area. (3) In the event that the Navy discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), the Navy shall immediately report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (h)(2) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the Navy to determine whether additional mitigation measures or modifications to the activities are appropriate. (4) In the event that the Navy discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 218.20 (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), Navy shall report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. The Navy shall provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. Photographs may be taken once the animal has been moved from the waterfront area. PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 § 218.26 15985 Letters of Authorization. (a) To incidentally take marine mammals pursuant to the regulations in this subpart, the Navy must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of the regulations in this subpart. (c) If an LOA expires prior to the expiration date of the regulations in this subpart, the Navy may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 218.27. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the regulations in this subpart. (g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination. § 218.27 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.26 for the activity identified in § 218.20(a) shall be renewed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under the regulations in this subpart were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations in E:\FR\FM\17APR1.SGM 17APR1 15986 Federal Register / Vol. 84, No. 74 / Wednesday, April 17, 2019 / Rules and Regulations this subpart or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 218.26 for the activity identified in § 218.20(a) may be modified by NMFS under the following circumstances: (1) Adaptive management. NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with the Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the regulations in this subpart. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA: (A) Results from the Navy’s monitoring from the previous year(s). (B) Results from other marine mammal and/or sound research or studies. (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by the regulations in this subpart or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.26, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action. §§ 218.28–218.29 [Reserved] amozie on DSK9F9SC42PROD with RULES [FR Doc. 2019–07513 Filed 4–16–19; 8:45 am] BILLING CODE 3510–22–P VerDate Sep<11>2014 16:23 Apr 16, 2019 Jkt 247001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 141107936–5399–02] RIN 0648–XG960 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2019 Commercial Accountability Measure and Closure for South Atlantic Gray Triggerfish; January Through June Season National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. AGENCY: NMFS implements accountability measures for commercial gray triggerfish in the exclusive economic zone (EEZ) of the South Atlantic. NMFS projects commercial landings for gray triggerfish will reach the commercial annual catch limit (ACL)(commercial quota) for the January through June season by April 17, 2019. Therefore, NMFS is closing the commercial sector for gray triggerfish in the South Atlantic EEZ on April 17, 2019. This closure is necessary to protect the gray triggerfish resource. DATES: This rule is effective 12:01 a.m., local time, April 17, 2019, until July 1, 2019. FOR FURTHER INFORMATION CONTACT: Mary Vara, NMFS Southeast Regional Office, telephone: 727–824–5305, email: mary.vara@noaa.gov. SUPPLEMENTARY INFORMATION: The snapper-grouper fishery of the South Atlantic includes gray triggerfish and is managed under the Fishery Management Plan for the SnapperGrouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. The commercial ACL (commercial quota) for gray triggerfish in the South Atlantic is divided into two 6-month fishing seasons. The total commercial ACL of 312,324 lb (141,668 kg), round weight, is allocated 50 percent to each commercial fishing season, or 156,162 lb (70,834 kg), round weight, each for January through June, and July through December, as specified in 50 CFR 622.190(a)(8)(i) and (ii). SUMMARY: PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 Under 50 CFR 622.193(q)(1)(i), NMFS is required to close the commercial sector for gray triggerfish when either commercial quota specified in 50 CFR 622.190(a)(8)(i) or (ii) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial quota for South Atlantic gray triggerfish for the January through June fishing season will be reached by April 17, 2019. Accordingly, the commercial sector for South Atlantic gray triggerfish is closed effective at 12:01 a.m., local time, April 17, 2019, until the start of the July through December fishing season on July 1, 2019. Additionally, NMFS notes that as specified at 50 CFR 622.190(a)(8)(iii), if there is any unused portion of the January through June seasonal quota, it will be added to the July through December seasonal quota. Any unused portion of the July through December seasonal quota, including, if applicable, any addition of quota from the January through June season, will become void and will not be added to any subsequent quota in the following fishing year. The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper having gray triggerfish on board must have landed and bartered, traded, or sold such gray triggerfish prior to 12:01 a.m., local time, April 17, 2019. During the closure, the recreational bag limit specified in 50 CFR 622.187(b)(8), and the possession limits specified in 50 CFR 622.187(c), apply to all harvest or possession of gray triggerfish in or from the South Atlantic EEZ. Also, during the closure, the sale or purchase of gray triggerfish taken from the South Atlantic EEZ is prohibited. The prohibition on the sale or purchase does not apply to gray triggerfish that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, April 17, 2019, and were held in cold storage by a dealer or processor. For a person on board a vessel for which a valid Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the bag and possession limits and sale and purchase provisions of the commercial closure for gray triggerfish apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii). Classification The Regional Administrator, NMFS Southeast Region, has determined this temporary rule is necessary for the conservation and management of gray E:\FR\FM\17APR1.SGM 17APR1

Agencies

[Federal Register Volume 84, Number 74 (Wednesday, April 17, 2019)]
[Rules and Regulations]
[Pages 15963-15986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07513]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 170919913-9271-02]
RIN 0648-BH27

Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to U.S. Navy Marine Structure Maintenance and Pile
Replacement in Washington

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

ACTION: Final rule.

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

DATES: Effective from May 17, 2019 through May 17, 2024.

ADDRESSES: A copy of the Navy's application and supporting documents,
as well as a list of the references cited in this document, may be
obtained online at: www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-marine-structure-maintenance-and-pile-replacement-wa. In case of problems accessing these documents, please
call the contact listed below.

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

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

These regulations establish a framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of
marine mammals incidental to the Navy's construction activities related
to marine structure maintenance and pile replacement at facilities in
Washington.
We received an application from the Navy requesting five-year
regulations and authorization to take multiple species of marine
mammals. Take is expected to occur by Level A and Level B harassment
incidental to impact and vibratory pile driving. Please see
``Background'' below for definitions of harassment.

Legal Authority for the Action

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

Summary of Major Provisions Within the Regulations

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

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs
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, regulations are issued, and notice is
provided to the public.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
The MMPA states that the term ``take'' means to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill any
marine mammal.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).

Summary of Request

On July 24, 2017, we received an adequate and complete request from
the Navy for authorization to take marine mammals incidental to
construction activities related to marine structure maintenance and
pile replacement at six Naval installations in Washington inland
waters. On August 4, 2017 (82 FR 36359), we published a notice of
receipt of the Navy's application in the Federal Register, requesting
comments and information related to the request for thirty days. We
received comments from Whale and Dolphin Conservation

[[Page 15964]]

(WDC). The comments received from WDC were considered in development of
the proposed rule and are available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-marine-structure-maintenance-and-pile-replacement-wa. We subsequently published a notice
of proposed rulemaking in the Federal Register on March 5, 2018 (83 FR
9366). Comments received during the public comment period on the
proposed regulations are addressed in ``Comments and Responses.''
The Navy plans to conduct construction necessary for maintenance of
existing in-water structures at the following facilities: Naval Base
Kitsap (NBK) Bangor, NBK Bremerton, NBK Keyport, NBK Manchester,
Zelatched Point, and Naval Station Everett (NS Everett). These repairs
include use of impact and vibratory pile driving, including
installation and removal of steel, concrete, plastic, and timber piles.
Hereafter (unless otherwise specified or detailed) we use the term
``pile driving'' to refer to both pile installation and pile removal.
The use of both vibratory and impact pile driving is expected to
produce underwater sound at levels that have the potential to result in
harassment of marine mammals.
The Navy requests authorization to take individuals of 10 species
by Level B harassment. Take by Level A harassment is anticipated only
for the harbor seal. These regulations are valid for five years (2019-
2024).

Description of the Specified Activity

Overview

Maintaining existing wharfs and piers is vital to sustaining the
Navy's mission and ensuring readiness. To ensure continuance of
necessary missions at the six installations, the Navy must conduct
annual maintenance and repair activities at existing marine waterfront
structures, including removal and replacement of piles of various types
and sizes. The Navy refers to this program as the Marine Structure
Maintenance and Pile Replacement (MPR) program. Exact timing and amount
of necessary in-water work is unknown, but the Navy estimates replacing
up to 822 structurally unsound piles over the 5-year period, including
individual actions currently planned and estimates for future marine
structure repairs. Construction will include use of impact and
vibratory pile driving, including removal and installation of steel,
concrete, plastic, and timber piles. Aspects of construction activities
other than pile driving are not anticipated to have the potential to
result in incidental take of marine mammals because they are either
above water or do not produce levels of underwater sound with likely
potential to result in take of marine mammals.
The Navy's waterfront inspection program prioritizes deficiencies
in marine structures and plans those maintenance and repairs for design
and construction. The Navy's planned activities include individual
projects (where an existing need has been identified and funds have
been requested) and estimates for emergent or emergency repairs. The
latter are also referred to as contingency repairs. Estimates of
activity levels for contingency repairs are based on Navy surveys of
existing structures, which provide assessments of structure condition
and estimates of numbers of particular pile types that may require
replacement (at an assumed 1:1 ratio) over the 5-year duration of these
regulations. Additional allowance is made for the likelihood that
future waterfront inspections will reveal unexpected damage, or that
damage caused by severe weather events and/or incidents caused by
vessels will result in need for additional contingency repairs.
LOAs could be issued for projects conducted at any of the six
facilities if they fit within the structure of the programmatic
analysis provided herein and are able to meet the requirements
described in the regulations. The Navy will meet with NMFS on an annual
basis prior to the start of in-water work windows to review upcoming
projects, required monitoring plans, and the results of relevant
projects conducted in the preceding in-water work window. The intent is
to utilize lessons learned to better inform potential effects of future
MPR activities and in any follow-up consultations.

Dates and Duration

These regulations are valid for a period of five years (2019-2024).
The specified activities may occur at any time during the five-year
period of validity of the regulations, subject to existing timing
restrictions. These timing restrictions, or in-water work windows, are
typically designed to protect fish species listed under the Endangered
Species Act (ESA). For NBK Bangor and Zelatched Point (located in Hood
Canal), in-water work may occur from July 16 through January 15. At the
remaining four facilities (located in Puget Sound), in-water work may
occur from July 16 through February 15. Impact or vibratory driving
could occur on any work day within in-water work windows during the
period of validity of these regulations.
For many projects the design details are not known; thus, it is not
possible to state the number of pile driving days that will be
required. Days of pile driving at each site were based on the estimated
work days using a slow production rate, i.e., one pile removed per day
and one pile installed per day for contingency pile driving and an
average production rate of six piles per day for fender pile
replacement. These conservative rates give the following estimates of
total days at each facility over the 5-year duration: NBK Bangor, 119
days; Zelatched Point, 20 days; NBK Bremerton, 168 days; NBK Keyport,
20 days; NBK Manchester, 50 days; and NS Everett, 78 days. These totals
include both extraction and installation of piles, and represent a
conservative estimate of pile driving days at each facility. In a real
construction situation, pile driving production rates would be
maximized when possible and actual daily production rates may be
higher, resulting in fewer actual pile driving days.

Specified Geographical Region

The six installations are located within the inland waters of
Washington State. Two facilities are located within Hood Canal, while
the remainder are located within Puget Sound. Please see Figure 1-1 of
the Navy's application for a regional map.
NBK Bangor and Zelatched Point are located in the Hood Canal, a
long, narrow, fjord-like basin of western Puget Sound. Please see
Figures 1-2 and 1-6 of the Navy's application. NBK Bremerton is located
on the north side of Sinclair Inlet in southern Puget Sound. Please see
Figure 1-3 of the Navy's application. NBK Keyport is located on the
eastern shore of the Kitsap Peninsula. Please see Figure 1-4 of the
Navy's application. NBK Manchester is located on Orchard Point,
approximately 6.4 km due east of Bremerton. Please see Figure 1-5 of
the Navy's application. NS Everett is located in Port Gardner Bay in
Puget Sound's Whidbey Basin. Please see Figure 1-7 of the Navy's
application.
For additional detail regarding the specified geographical region,
please see our notice of proposed rulemaking (83 FR 9366; March 5,
2018) and Section 2 of the Navy's application.

Detailed Description of Activities

As described above, the Navy requested incidental take regulations
for its MPR program, which includes maintenance and repair activities
at marine waterfront structures at six

[[Page 15965]]

installations within Washington inland waters. In order to address
identified deficiencies in existing marine structures at the six
facilities, the Navy plans to replace up to 822 structurally unsound
piles over the 5-year period using both impact and vibratory pile
driving. Existing marine structures at the six facilities are
identified in Table 1-2 of the Navy's application. The MPR program
includes pile repair, extraction, and installation, all of which may be
accomplished through a variety of methods. However, only pile
extraction and installation using vibratory and impact pile drivers is
expected to have the potential to result in incidental take of marine
mammals. A detailed description of the Navy's planned activities was
provided in our notice of proposed rulemaking (83 FR 9366; March 5,
2018) and is not repeated here. No changes have been made to the
specified activities described therein.
Steel piles are typically vibratory-driven for their initial
embedment depths or to refusal and finished with an impact hammer for
proofing or until the pile meets structural requirements, as necessary.
Non-steel piles (concrete, timber, or plastic) are typically impact-
driven for their entire embedment depth, in part because non-steel
piles are often displacement piles (as opposed to pipe piles) and
require some impact to allow substrate penetration. Pile installation
can typically take a minute or less to 60 minutes depending on pile
type, pile size, and conditions (i.e., bedrock, loose soils, etc.) to
reach the required tip elevation.
Impact or vibratory pile driving could occur on any day, but would
not occur simultaneously. Location-specific pile totals are given in
Table 1 and described below. These totals assume a 1:1 replacement
ratio; however, the actual number installed may result in a replacement
ratio of less than 1:1. Please see Table A-1 of the Navy's application
for additional detail regarding expectations for both planned work and
possible contingency work.

Table 1--Pile Types and Maximum Anticipated Number To Be Replaced at
Each Installation
------------------------------------------------------------------------
Existing piles to be Anticipated piles to
Installation replaced be installed
------------------------------------------------------------------------
NBK Bangor.................. 44 concrete, 75 119 steel or
steel and/or timber. concrete.
NBK Bremerton............... 75 steel and/or 100 steel (14-in
timber, 460 timber. diameter and sheet
piles), 435
concrete.
NBK Keyport................. 20 steel and/or 20 steel.
concrete.
NBK Manchester.............. 50 timber and/or 50 concrete, timber,
plastic. and/or plastic.
Zelatched Point............. 20 timber........... 20 steel, concrete,
and/or timber.
NS Everett.................. 1 steel, 2 concrete, 1 steel and 77
and 75 timber. concrete and/or
timber.
------------------------------------------------------------------------

Steel piles would be a maximum size of 36-inch (in) diameter except
at NBK Bremerton where they would be 14-in diameter. Concrete piles
will be a maximum of 24-in diameter and timber/plastic piles will be a
maximum of 18-in diameter. For purposes of analysis, it is assumed that
any unknown pile type would be steel, since this provides a worst-case
scenario in terms of noise levels produced. All concrete, timber, and
plastic piles are assumed to be installed entirely by impact pile
driver, and all steel piles are assumed to require some use of an
impact driver. This is a conservative assumption, as all steel piles
would be initially driven with a vibratory driver until they reach a
point of refusal (where substrate conditions make use of a vibratory
hammer ineffective) or engineering specifications require impact
driving to verify load-bearing capacity. Therefore, some steel piles
may not in fact require use of the impact driver during installation.
Of 822 piles expected to be installed as replacement piles, 121
have been identified as steel piles. These piles will be installed over
the 5-year duration at NBK Bremerton, NBK Keyport, and NS Everett. In
addition, another 139 piles that would be installed at NBK Bangor (119)
and Zelatched Point (20) have not been identified as to pile type and
could be steel, concrete, timber, or plastic. For this analysis, it is
assumed all 139 of these would be steel piles. Therefore, 260 piles are
assumed to be steel, with 100 of these 14-in and the remainder assumed
to be 36-in diameter. A total of 435 replacement piles have been
identified as concrete (NBK Bremerton). The remaining 127 replacement
piles (NBK Manchester and NS Everett) could ultimately be concrete,
timber, or plastic, but are assumed for purposes of analysis to be
concrete, which is a more conservative noise scenario.

Comments and Responses

We published a notice of proposed rulemaking in the Federal
Register on March 5, 2018 (83 FR 9366). During the 30-day comment
period, we received letters from the Marine Mammal Commission
(Commission) and WDC. The comments and our responses are described
below. For full detail of the comments and recommendations, please see
the comment letters, which are available online at:
www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-marine-structure-maintenance-and-pile-replacement-wa.
Comment: The Commission recommends that NMFS should consult with
scientists and acousticians to determine the appropriate accumulation
time that action proponents should use to determine the extent of Level
A harassment zones based on the associated cumulative sound exposure
level (cSEL) thresholds in such situations. The Commission further
recommends that NMFS consult with both internal and external scientists
and acousticians to determine the appropriate accumulation time that
action proponents should use to determine the extent of the Level A
harassment zones based on the associated cSEL thresholds for the
various types of sound sources, including stationary sound sources,
when simple area x density methods are employed.
Response: NMFS appreciates the Commission's interest in these
issues, and we agree that these are important issues needing further
consideration. Therefore, NMFS will continue to consider and refine our
approach to assessing the appropriate calculation of Level A harassment
through future actions as more information and experience is available.
However, we also note that the Commission itself has a nine-member
Committee of Scientific Advisors, including experts on the very topics
mentioned, in addition to a professional staff including subject matter
experts on marine mammal behavior and acoustics. As such, we would
welcome in the future any more substantive recommendations relating to
these issues that the Commission wishes to provide.

[[Page 15966]]

In addition, as described in NMFS's 2018 Revision to Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (NMFS, 2018), NMFS is committed to re-examining the
default 24-hour accumulation period and has convened a working group to
investigate alternative means of identifying appropriate accumulation
periods.
Comment: The Commission recommends NMFS share its criteria for
rounding take estimates with the Commission.
Response: On June 27, 2018, NMFS provided the Commission with its
internal guidance on rounding and the consideration of additional
factors in take estimation.
Comment: WDC recommends that NMFS and the Navy consult on the
status of marine mammal populations on a yearly basis at minimum, and
with greater frequency regarding southern resident killer whales
(SRKW). In addition, WDC suggests that the Navy must communicate and
coordinate with Washington State on the status of localized impacts to
SRKW for each project site, during the time of each construction
project.
Response: We appreciate WDC's comments and share, generally, their
concern regarding the status of the endangered SRKW population.
However, as discussed herein and as separately evaluated through NMFS's
consultation under section 7 of the ESA, the Navy's construction
actions (and NMFS's potential issuance of LOAs for take of marine
mammals incidental to those actions) do not present meaningful concern
relating to impacts on SRKW. In most locations, SRKW are not expected
to be present and, where they could be encountered, the Navy has
committed to robust monitoring and mitigation requirements. As such,
the requirement to meet annually (as proposed) is sufficient for
information exchange regarding ongoing and future actions associated
with the Navy's MPR program. With regard to the need to consult with
Washington State, it is outside NMFS's jurisdiction to require such
consultation of the Navy. The Navy will consult with Washington State
in accordance with applicable state law.
Comment: WDC disagrees with statements in our notice of proposed
rulemaking regarding the likely presence of SRKW individuals in the
vicinity of Navy facilities, and suggests that the estimated taking of
SRKW as a result of the specified activities is underestimated. WDC
supports this recommendation in part by stating that the occurrence of
SRKW in Puget Sound, which is likely determined by the presence and
abundance of seasonally-preferred salmon runs, has been highly variable
in recent years. WDC recommends reconsideration of the number of SRKW
that may be taken by the specified activity.
Response: We first clarify that WDC apparently misunderstands our
previous statement relating to expected SRKW occurrence. Rather than
stating that SRKW occur ``only rarely and unpredictably'' in the Puget
Sound region as a whole, as WDC comments, we noted that SRKW (among
other species considered herein) occur only rarely and unpredictably in
the vicinity of Navy facilities. Reiterating our discussion in the
notice of proposed rulemaking, SRKW have not been reported in Hood
Canal (NBK Bangor and Zelatched Point) since 1995. The most recent
confirmed sighting of SRKW near NBK Bremerton and Keyport was in Dyes
Inlet in 1997. SRKW occur only rarely in far southern Puget Sound, near
NBK Manchester. We acknowledged that SRKW are more likely to occur in
the vicinity of NS Everett.
Even at these latter two facilities (NBK Manchester and NS
Everett), a density-based analysis would lead to an assumption that
SRKW takes are unlikely, given the generally small acoustic harassment
zones (other than when vibratory driving steel piles) and low number of
expected days on which pile driving would occur under the MPR. Further,
the robust monitoring requirements that will be required of the Navy--
including a commitment to monitor local sightings networks and avoid
pile driving when SRKW are known to be in the vicinity of a facility--
in conjunction with the Navy's commitment to cease pile driving if SRKW
(and cetaceans in general) are detected at any distance strengthen the
conclusion that take of SRKW is unlikely. However, in recognition that
it is possible that SRKW could briefly enter a harassment zone
undetected during vibratory pile driving of steel piles (when
harassment zones are largest), we include analysis of a precautionary
amount of take (equivalent to two occurrences of J pod or one
occurrence of L pod). The best available information supports a
conclusion that this amount of take by Level B harassment is
sufficient, and WDC provides no specific information to the contrary.
Comment: WDC similarly suggests that the take number provided for
transient killer whales is underestimated, citing take estimates
produced for previous incidental take authorizations for Navy
construction activities in Hood Canal.
Response: As for SRKW, the best available information, including
local sightings data--described in our notice of proposed rulemaking--
suggest that transient killer whales are unlikely to occur in the
vicinity of Navy construction activities. The take estimate considered
herein considers available information regarding group size and a
reasonable estimate of days on which transient killer whales may be
present, given their rarity, small acoustic harassment zones for most
pile driving, and few days on which pile driving is expected to occur.
The incidental take authorization cited by WDC (83 FR 10689; March 12,
2018) included an extremely precautionary take estimate, as has
occurred for other past Navy authorization requests for construction
activities specific to the Hood Canal. We note that, although
relatively large amounts of take have been authorized for transient
killer whales in association with such activities--since 2010, nine
IHAs have been issued to the Navy for construction activities at NBK
Bangor in Hood Canal--no killer whale observations have ever been
reported during construction activities, and no actual takes are
believed to have occurred.
Overall, with regard to both SRKW and transient killer whales, we
believe that the take estimates analyzed herein reasonably reflect the
available information and should be expected to be reasonably
reflective of the actual potential for killer whale occurrence in the
vicinity of Navy facilities during the specified construction
activities. However, these regulations also include an adaptive
management component that will allow Navy and NMFS to evaluate on an
annual basis whether these assumptions remain accurate.
Comment: With regard to mitigation and monitoring, WDC recommends
ensuring that the Navy uses adequate numbers and placement of marine
mammal observers to detect killer whales at all project sites, to
ensure awareness regarding updated information on killer whale
presence, and to utilize citizen sightings networks on a daily basis to
monitor for presence and activity of killer whales in the area before
construction activities begin. WDC also recommends ensuring that
observers have sufficient training to differentiate between resident
and transient killer whales.
Response: We agree with WDC regarding these measures, all of which
were included in our notice of proposed rulemaking and are carried
forward in

[[Page 15967]]

these final regulations. However, we do caution that identification of
transient versus resident killer whales may be difficult, although
observers will be required to have sufficient training and experience
to make such determinations, within reason.
Comment: WDC encourages ``extensive use of the proposed
hydroacoustic system'' to detect the presence of marine mammals. In
addition, WDC states that this unspecified system should be used to
measure localized levels of underwater noise at project sites and, in
conjunction with a threshold level to be determined, that construction
activities not be allowed to proceed if background noise levels are
above some predetermined level.
Response: Overall, this proposal is too vague to reasonably be
acted upon. It is unclear what ``proposed hydroacoustic system'' WDC is
referring to, and significantly greater detail would need to be
provided with regard to the technical specifications of such a system
as well as with regard to the data to be collected and its monitoring
in order to meaningfully evaluate such a proposal. It is also unclear
what WDC suggests as an appropriate threshold for background noise.
Moreover, even if we assume that a passive acoustic monitoring system
exists in conjunction with the capacity to monitor data in real-time,
the proposal to not allow construction activities if background noise
is above a specified threshold would likely be considered
impracticable, as the level of background noise is outside the Navy's
control, such a requirement could significantly constrain Navy's
ability to conduct necessary construction activities, and the
requirement would be of uncertain benefit to affected marine mammals.

Description of Marine Mammals in the Area of the Specified Activity

We have reviewed the Navy's species descriptions--which summarize
available information regarding status and trends, distribution and
habitat preferences, behavior and life history, and auditory
capabilities of the potentially affected species--for accuracy and
completeness and refer the reader to Sections 3 and 4 of the Navy's
application, instead of reprinting the information here. Additional
information regarding population trends and threats may be found in
NMFS's Stock Assessment Reports (SAR; www.fisheries.noaa.gov/topic/population-assessments#marine-mammals) and more general information
about these species (e.g., physical and behavioral descriptions) may be
found on NMFS's website (www.fisheries.noaa.gov/find-species).
Table 2 lists all species with expected potential for occurrence in
the specified geographical region where the Navy proposes to conduct
the specified activities and summarizes information related to the
population or stock, including regulatory status under the MMPA and ESA
and potential biological removal (PBR), where known. For taxonomy, we
follow Committee on Taxonomy (2017). PBR, defined by the MMPA as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population, is considered in
concert with known sources of ongoing anthropogenic mortality (as
described in NMFS's SARs).
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. All managed stocks in the specified geographical
region are assessed in either NMFS's U.S. Alaska SARs or U.S. Pacific
SARs. All values presented in Table 2 are the most recent available at
the time of writing, including updated information provided in the
draft 2018 SARs (available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).
Ten species (with 13 managed stocks) are considered to have the
potential to co-occur with Navy activities. There are several species
or stocks that occur in Washington inland waters, but which are not
expected to occur in the vicinity of the six Naval installations. These
species may occur in waters of the Strait of Juan de Fuca or in more
northerly waters in the vicinity of the San Juan Islands and areas
north to the Canadian border, and include the Pacific white-sided
dolphin (Lagenorhynchus obliquidens) and the northern resident stock of
killer whales. In addition, the sea otter is found in coastal waters,
with the northern (or eastern) sea otter (Enhydra lutris kenyoni) found
in Washington. However, sea otters are managed by the U.S. Fish and
Wildlife Service and are not considered further in this document.
Two populations of gray whales are recognized, eastern and western
North Pacific (ENP and WNP). As discussed in greater detail in our
notice of proposed rulemaking (83 FR 9366; March 5, 2018), there is no
indication that WNP whales occur in waters of Hood Canal or southern
Puget Sound, and it is extremely unlikely that a gray whale in close
proximity to Navy construction activity would be one of the few WNP
whales that have been documented in the eastern Pacific. The likelihood
that a WNP whale would be present in the vicinity of Navy construction
activities is insignificant and discountable, and WNP gray whales are
omitted from further analysis.

Table 2--Marine Mammals Potentially Present in the Vicinity of Navy Construction Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stock abundance (CV,
Common name Scientific name Stock ESA/ MMPA status; Nmin, most recent PBR Annual M/
strategic (Y/N) \1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:.............
Gray whale..................... Eschrichtius robustus. Eastern North Pacific. -; N 26,960 (0.05; 25,849; 801 138
2016).
Family Balaenopteridae (rorquals):
Humpback whale................. Megaptera novaeangliae California/Oregon/ E/D; Y 2,900 (0.03; 2,784; 16.7 \7\ >=38.6
kuzira. Washington (CA/OR/WA). 2014).
Minke whale.................... Balaenoptera CA/OR/WA.............. -; N 636 (0.72; 369; 2014). 3.5 >=1.3
acutorostrata
scammoni.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 15968]]

Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Killer whale................... Orcinus orca \4\...... West Coast Transient -; N 243 (n/a; 2009)....... 2.4 0
\5\. E/D; Y 77 (n/a; 2017)........ 0.13 0
Eastern North Pacific
Southern Resident.
Family Phocoenidae (porpoises):
Harbor porpoise................ Phocoena phocoena Washington Inland -; N 11,233 (0.37; 8,308; 66 >=7.2
vomerina. Waters. 2015).
Dall's porpoise................ Phocoenoides dalli CA/OR/WA.............. -; N 25,750 (0.45; 17,954; 172 0.3
dalli. 2014).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
California sea lion............ Zalophus californianus United States......... -; N 257,606 (n/a; 233,515; 14,011 >=319
2014).
Steller sea lion............... Eumetopias jubatus Eastern U.S........... -; N 41,638 (n/a; 2015).... 2,498 108
monteriensis.
Family Phocidae (earless seals):
Harbor seal.................... Phoca vitulina Washington Northern -; N 11,036 (0.15; 7,213; Undet. 9.8
richardii. Inland Waters \6\. 1999).
...................... Southern Puget Sound -; N 1,568 (0.15; 1,025; Undet. 3.4
\6\ 1999).
...................... Hood Canal \6\ -; N 1,088 (0.15; 711; Undet. 0.2
1999).
Northern elephant seal......... Mirounga California Breeding... -; N 179,000 (n/a; 81,368; 4,882 8.8
angustirostris. 2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is
coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For two stocks of killer whales, the
abundance values represent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated
CV. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction
factor derived from knowledge of the species' (or similar species') life history to arrive at a best abundance estimate; therefore, there is no
associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
M/SI values are as presented in the draft 2018 SARs.
\4\ Transient and resident killer whales are considered unnamed subspecies (Committee on Taxonomy, 2017).
\5\ The abundance estimate for this stock includes only animals from the ``inner coast'' population occurring in inside waters of southeastern Alaska,
British Columbia, and Washington--excluding animals from the ``outer coast'' subpopulation, including animals from California--and therefore should be
considered a minimum count. For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now
considered outdated, was 354.
\6\ Abundance estimates for these stocks are not considered current. PBR is therefore considered undetermined for these stocks, as there is no current
minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available
information for use in this document.
\7\ This stock is known to spend a portion of time outside the U.S. EEZ. Therefore, the PBR presented here is the allocation for U.S. waters only and is
a portion of the total. The total PBR for humpback whales is 33.4 (one half allocation for U.S. waters). Annual M/SI presented is for U.S. waters
only.

Additional detail regarding the affected species and stocks,
including local occurrence data for each of the six Navy facilities,
was provided in our notice of proposed rulemaking (83 FR 9366; March 5,
2018) and is not repeated here.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 dB
threshold from the normalized composite audiograms, with an exception
for lower limits for low-frequency cetaceans where the result was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. The functional groups and the associated
frequencies are indicated below (note that these frequency ranges
correspond to the range for the composite group, with the entire range
not necessarily reflecting the capabilities of every species within
that group):
Low-frequency cetaceans (mysticetes): Generalized hearing
is estimated to occur between approximately 7 Hz and 35 kHz;
Mid-frequency cetaceans (larger toothed whales, beaked
whales, and most delphinids): Generalized hearing is estimated to occur
between approximately 150 Hz and 160 kHz;
High-frequency cetaceans (porpoises, river dolphins, and
members of the genera Kogia and Cephalorhynchus; including two members
of the genus Lagenorhynchus, on the basis of recent echolocation data
and genetic data): Generalized hearing is

[[Page 15969]]

estimated to occur between approximately 275 Hz and 160 kHz;
Pinnipeds in water; Phocidae (true seals): Functional
hearing is estimated to occur between approximately 50 Hz to 86 kHz;
Pinnipeds in water; Otariidae (eared seals): Functional
hearing is estimated to occur between 60 Hz and 39 kHz for Otariidae.
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Ten marine mammal species (six cetacean and four pinniped (two otariid
and two phocid) species) have the potential to co-occur with Navy
construction activities. Please refer to Table 2. Of the six cetacean
species that may be present, three are classified as low-frequency
cetaceans (i.e., all mysticete species), one is classified as a mid-
frequency cetacean (i.e., killer whales), and two are classified as
high-frequency cetaceans (i.e., porpoises).

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

We provided discussion of the potential effects of the specified
activity on marine mammals and their habitat in our Federal Register
notice of proposed rulemaking (83 FR 9366; March 5, 2018). Therefore,
we do not reprint the information here but refer the reader to that
document. That document included a summary and discussion of the ways
that components of the specified activity may impact marine mammals and
their habitat, as well as general background information on sound. The
``Estimated Take'' section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The ``Negligible Impact Analysis and
Determination'' section considers the content of this section and the
material it references, the ``Estimated Take'' section, and the
``Mitigation'' section, to draw conclusions regarding the likely
impacts of these activities on the reproductive success or survivorship
of individuals and how those impacts on individuals are likely to
impact marine mammal species or stocks.

Estimated Take

This section provides an estimate of the number of incidental takes
for authorization, which will inform both NMFS's consideration of
whether the number of takes is ``small'' and the negligible impact
determination.
Except with respect to certain activities not pertinent here,
section 3(18) of the MMPA defines ``harassment'' as: Any act of
pursuit, torment, or annoyance which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Take of marine mammals incidental to Navy construction activities
could occur as a result of Level A or Level B harassment. Below we
describe how the potential take is estimated.

Acoustic Thresholds

We provided discussion of relevant sound thresholds in our Federal
Register notice of proposed rulemaking (83 FR 9366; March 5, 2018) and
do not repeat the information here. Generalized acoustic thresholds
based on received level are used to estimate the onset of Level B
harassment. These thresholds are 160 dB rms (intermittent sources) and
120 dB rms (continuous sources). Please see Table 3 for Level A
harassment (auditory injury) criteria.

Table 3--Exposure Criteria for Auditory Injury
----------------------------------------------------------------------------------------------------------------
Cumulative sound exposure
level \2\
Hearing group Peak pressure -------------------------------
\1\ (dB) Non-impulsive
Impulsive (dB) (dB)
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans......................................... 219 183 199
Mid-frequency cetaceans......................................... 230 185 198
High-frequency cetaceans........................................ 202 155 173
Phocid pinnipeds................................................ 218 185 201
Otariid pinnipeds............................................... 232 203 219
----------------------------------------------------------------------------------------------------------------
\1\ Referenced to 1 [mu]Pa; unweighted within generalized hearing range.
\2\ Referenced to 1 [mu]Pa\2\-s; weighted according to appropriate auditory weighting function.

Zones of Ensonification

Sound Propagation--We provided discussion of relevant propagation
considerations in our Federal Register notice of proposed rulemaking
(83 FR 9366; March 5, 2018) and do not repeat the information here. As
is common practice in coastal waters, here we assume practical
spreading loss (4.5 dB reduction in sound level for each doubling of
distance). Practical spreading is a compromise that is often used under
conditions where water depth increases as the receiver moves away from
the shoreline, resulting in an expected propagation environment that
would lie between spherical and cylindrical spreading loss conditions.
Sound Source Levels--We provided discussion of source level
considerations in our Federal Register notice of proposed rulemaking
(83 FR 9366; March 5, 2018) and do not repeat the information here. No
changes have been made to the source level selections described in that
notice and shown in Table 4.

Table 4--Assumed Source Levels
----------------------------------------------------------------------------------------------------------------
SPL (peak) 1 2
Method Type Size (in) SPL (rms) \1\ SEL 1 3
----------------------------------------------------------------------------------------------------------------
Impact...................... Plastic........ 13 156............ Not available.. Not available.
Timber......... 12/14 170............ Not available.. Not available.
Concrete....... 18 170............ 184............ 159.
24 178............ 189............ 166.

[[Page 15970]]

Steel pipe..... 12/13 177............ 192............ 167.
14 184............ 200............ 174.
24 193............ 210............ 181.
30 195............ 216............ 186.
36 194 (Bangor); 211............ 181 (Bangor);
192 (others). 184 (others).
Vibratory................... Timber......... 12 153............ n/a............ n/a.
13/14 155............ n/a............ n/a.
Steel pipe..... 13/14 155............ n/a............ n/a.
16/24 161............ n/a............ n/a.
30/36 166 (Bangor); n/a............ n/a.
167 (others).
Steel sheet.... n/a 163............ n/a............ n/a.
----------------------------------------------------------------------------------------------------------------
\1\ Source levels presented at standard distance of 10 m from the driven pile. Peak source levels are not
typically evaluated for vibratory pile driving, as they are lower than the relevant thresholds for auditory
injury. SEL source levels for vibratory driving are equivalent to SPL (rms) source levels.

The Navy will use bubble curtains when impact driving steel piles
of 24-in diameter and greater, except at NBK Bremerton and NBK Keyport
(see Mitigation for further discussion). For the reasons described in
our Federal Register notice of proposed rulemaking (83 FR 9366; March
5, 2018), we assume here that use of the bubble curtain would result in
a reduction of 8 dB from the assumed SPL (rms) and SPL (peak) source
levels for these pile sizes, and reduce the applied source levels
accordingly. For determining distances to the cumulative SEL injury
thresholds, auditory weighting functions were applied to the attenuated
one-second SEL spectra for steel pipe piles (see Appendix E of the
Navy's application).
Level A Harassment--In order to assess the potential for injury on
the basis of the cumulative SEL metric, one must estimate the total
strikes per day (impact driving) or the total driving duration per day
(vibratory driving). Estimates of total strikes per day and total
driving duration per day, shown in Table 5, were described in detail in
our notice of proposed rulemaking, and are unchanged (83 FR 9366; March
5, 2018). Table 5 presents an estimate of average strikes per day;
average strikes per day and average daily duration values are used in
the exposure analyses. For vibratory driving of piles less than 16-in,
a daily duration of 0.5 hours was assumed; for vibratory driving of
larger piles a daily duration of 2.25 hours was assumed.

Table 5--Estimated Daily Strikes and Driving Duration
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated duration
Pile type and method Installation rate per day --------------------------------------------------------------------------------
Average strikes/day Average daily duration
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-in steel; impact........... No data................................ \1\ <<1,000............................ No data.
24- to 30-in steel; impact.... 1-6.................................... 1,000.................................. 4.5 minutes to 1.5 hours.
18- to 24-in concrete; impact. 1-11................................... \2\ 4,000.............................. 3 minutes to 4 hours.
13-in steel; vibratory........ 2-17................................... n/a.................................... 0-31 minutes.\3\
24- to 30-in steel; vibratory. 1-6.................................... n/a.................................... 10 minutes to 4.5 hours.\4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ All 14-in piles are expected to be vibratory driven for full embedment depth. In the event that conditions requiring impact driving are encountered,
very few strikes are expected to be necessary.
\2\ Estimate based on data from 272 piles installed at NBK Bremerton.
\3\ Estimate based on data from 70 piles installed at NBK Bremerton.
\4\ Estimate based on data from 809 piles installed at NBK Bangor. Maximum assumes six piles advanced at a rate of 45 minutes per pile.

Delineation of potential injury zones on the basis of the peak
pressure metric was performed using the SPL(peak) values provided in
Table 4 above. Source levels for peak pressure are unweighted within
the generalized hearing range, while SEL source levels are weighted
according to the appropriate auditory weighting function. As discussed
in detail in the notice of proposed rulemaking (83 FR 9366; March 5,
2018), delineation of potential injury zones on the basis of the
cumulative SEL metric for vibratory driving was performed using the
NMFS User Spreadsheet. This relatively simple approach will typically
result in higher predicted exposures for broadband sounds, since only
one frequency is being considered, compared to exposures associated
with the ability to fully incorporate the Technical Guidance's
weighting functions.
Because use of the WFA typically results in an overestimate of zone
size, the Navy took an alternative approach to delineating potential
injury zones for impact driving of 24- and 36-in steel piles and 24-in
concrete piles. Note that, because data is not available for all pile
sizes and types, we conservatively assume the following in using the
available data for 24- and 36-in steel piles and 24-in concrete piles:
(1) Injury zones for impact driving 14- and 24-in piles are equivalent
to the zones for 24-in piles with no bubble curtain; (2) injury zones
for impact driving plastic and timber piles and for 18-in concrete
piles are equivalent to the zones for 24-in concrete piles; and (3)
injury zones for impact driving 30-in steel piles are equivalent to the
zones calculated for 36-in piles (both with and without bubble
curtain).
This approach, described in detail in Appendix E of the Navy's
application, incorporated frequency weighting

[[Page 15971]]

adjustments by applying the auditory weighting function over the entire
one-second SEL spectral data sets from impact pile driving. If this
information for a particular pile size was not available, the next
highest source level was used to produce a conservative estimate of
areas above threshold values. Sound level measurements from
construction activities during the 2011 Test Pile Program at NBK Bangor
were used for evaluation of impact-driven steel piles, and sound level
measurements from construction activities during the 2015 Intermediate
Maintenance Facility Pier 6 Fender Pile Replacement Project at NBK
Bremerton were used for evaluation of impact-driven concrete piles.
In consideration of the assumptions relating to propagation, sound
source levels, and the methodology applied by the Navy towards
incorporating frequency weighting adjustments for delineation of
cumulative SEL injury zones for impact driving of steel and concrete
piles, notional radial distances to relevant thresholds were calculated
(Table 6). However, these distances are sometimes constrained by
topography. Actual notional ensonified zones at each facility are shown
in Tables 6-1 to 6-6b of the Navy's application. These zones are
modeled on the basis of a notional pile located at the seaward end of a
given structure in order to provide a conservative estimate of
ensonified area.

Table 6--Calculated Distances to Level A Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
PW OW LF MF HF
Pile Driver -----------------------------------------------------------------------------------------
pk cSEL pk cSEL pk cSEL pk cSEL pk cSEL
--------------------------------------------------------------------------------------------------------------------------------------------------------
24-in concrete \1\................... Impact................. 0 34 0 2 0 216 0 3 1 136
24-in steel \2\...................... Impact; BC............. 1 25 0 1.4 1 136 0 3 10 185
24-in steel \2\...................... Impact; no BC.......... 3 86 0 5 3 159 0 6 34 342
36-in steel \2\...................... Impact; BC............. 1 158 0 9 1 736 0 10 12 541
36-in steel \2\...................... Impact; no BC.......... 3 736 0 46 3 2,512 1 63 40 2,512
12- to 14-in timber \3\.............. Vibratory.............. n/a 1 n/a <1 n/a 2 n/a <1 n/a 3
16- and 24-in steel \4\.............. Vibratory.............. n/a 7 n/a 1 n/a 12 n/a 1 n/a 17
30- and 36-in steel (Bangor) \4\..... Vibratory.............. n/a 15 n/a 11 n/a 25 n/a 2 n/a 37
30- and 36-in steel (others) \4\..... Vibratory.............. n/a 18 n/a 1 n/a 30 n/a 3 n/a 43
Sheet steel \4\...................... Vibratory.............. n/a 10 n/a 1 n/a 16 n/a 1 n/a 24
--------------------------------------------------------------------------------------------------------------------------------------------------------
PW = Phocid; OW = Otariid; LF = low frequency; MF = mid frequency; HF = high frequency; pk = peak pressure; cSEL = cumulative SEL; BC = bubble curtain
\1\ Assumes 4,000 strikes per day.
\2\ Assumes 1,000 strikes per day. Bubble curtain will be used for 24-, 30-, and 36-in steel piles except at NBK Bremerton and NBK Keyport. Steel piles
will not be installed at NBK Manchester.
\3\ Assumes 30 minute daily driving duration.
\4\ Assumes 2.25 hour daily driving duration.

Summary--Here, we summarize facility-specific information about
piles to be removed and installed. In general, it is likely that pile
removals may be accomplished via a combination of methods (e.g.,
vibratory driver, cut at mudline, direct pull). However, for purposes
of analysis we assume that all removals would be via vibratory driver.
In addition, we assume that installation of all steel piles larger than
14-in would require use of both impact and vibratory drivers, although
it is likely that some of these piles would be installed solely via use
of the vibratory driver. All concrete, timber, and plastic piles would
be installed solely via impact driver. Steel sheet piles and steel pipe
piles of 14-in diameter and smaller would be installed solely via
vibratory driver. All piles removed are assumed to be replaced at a 1:1
ratio, although it is likely that a lesser number of replacement piles
would be required. For full details, please see Appendix A of the
Navy's application.
NBK Bangor: The Navy anticipates ongoing maintenance work
at the older Explosives Handling Wharf (EHW-1), including removal and
replacement of up to 44 piles. Replacement of up to 75 piles is
anticipated for contingency repairs at any existing structure. Piles to
be removed would be steel, timber, and/or concrete, and replacement
piles would be steel and/or concrete. As a conservative scenario, all
piles are assumed to be 36-in steel for purposes of analysis.
Zelatched Point: Replacement of up to 20 piles is
anticipated for contingency repairs. Piles to be removed would be 12-in
timber piles, while replacement piles could be steel, timber, and/or
concrete. As a conservative scenario, all replacement piles are assumed
to be 36-in steel for purposes of analysis.
NBK Bremerton: The Navy anticipates ongoing maintenance
work at multiple existing structures. At Pier 5, 360 timber fender
piles would be removed and replaced with concrete piles. Timber piles
are assumed to be 14-in diameter, and concrete piles are assumed to be
24-in. At Pier 4, 80 timber fender piles would be replaced with steel
piles--timber and steel piles are assumed to be 14-in diameter.
Anticipated repairs to other piers would require removal of up to 20
timber piles, followed by installation of steel sheet piles.
Replacement of up to 75 piles is anticipated for contingency repairs at
any existing structure. Piles to be removed would be steel and/or
timber, and replacement piles would be 24-in concrete. The largest
estimated Level B harassment zone of influence (ZOI) results from
vibratory driving of sheet piles, which is expected to occur for only
twenty of the estimated total of 168 activity days. The Navy has
elected to assume this largest estimated ZOI for all 168 activity days
as a conservative scenario.
NBK Keyport: Replacement of up to 20 piles is anticipated
for contingency repairs. Piles to be removed would be steel and/or
concrete (up to 18-in), while replacement piles would be steel. As a
conservative scenario, all replacement piles are assumed to be 36-in
steel for purposes of analysis.
NBK Manchester: Replacement of up to 50 piles is
anticipated for contingency repairs. Piles to be removed would be
timber and/or plastic (up to 18-in), while replacement piles could be
timber, plastic, and/or concrete. As a

[[Page 15972]]

conservative scenario, all replacement piles are assumed to be 24-in
concrete for purposes of analysis.
NS Everett: The Navy anticipates minor repairs at the
North Wharf, requiring replacement of two concrete piles (assumed to be
24-in). Replacement of up to 76 piles is anticipated for contingency
repairs. Piles to be removed would include one steel pile and 75 timber
piles. The one steel pile would be replaced by a 36-in steel pile,
while the timber piles could be replaced by concrete and/or timber
piles. As a conservative scenario, these replacement piles are assumed
to be 24-in concrete for purposes of analysis.
Level B harassment zones and associated areas of ensonification are
identified in Table 7 below. Although not all zones are applied to the
exposure analysis, these may be effected as part of the required
monitoring. Ensonified areas vary based on topography in the vicinity
of the facility and are provided for each relevant facility.

Table 7--Radial Distances to Relevant Behavioral Isopleths and Associated Ensonified Areas
----------------------------------------------------------------------------------------------------------------
Impact (160-dB Ensonified Area Vibratory 120-dB) Ensonified area
Pile size and type rms) \1\ \2\ \3\ \2\
----------------------------------------------------------------------------------------------------------------
Plastic (13-in)................. 5................. 0.001............. n/a............... n/a.
Timber (12-in).................. 46................ 0.01.............. 1.6............... 3.8 (Manchester
Finger Pier); 4.6
(Manchester Fuel
Pier).
Timber (\13/14\-in) \4\......... 46................ 0.01.............. 2.2............... 6.8 (Bremerton);
5.9 (Manchester
Finger Pier); 7.8
(Manchester Fuel
Pier);\6\ 9.4
(Everett).
Concrete (24-in) \4\............ 159............... 0.08.............. n/a............... n/a.
Steel (14-in)................... 398............... 0.5 (Bremerton)... 2.2............... 6.8 (Bremerton)
Steel (24-in; BC)............... 464............... 0.54 (Bangor); n/a............... n/a.
0.48 (Zelatched
Point).
Steel (24-in; no BC) \5\........ 1,585............. 2.09 (Keyport).... 5.4............... 26.8 (Bangor); 4.9
(Keyport); 37.9
(Zelatched
Point).
Steel (30-in; BC)............... 631............... 0.91 (Bangor); n/a............... n/a.
0.85 (Zelatched
Point); 1.2
(Everett).
Steel (30-in; no BC)............ 2,154............. 1.94 (Keyport).... Same as 36-in..... Same as 36-in.
Steel (36-in; BC)............... 541 (Bangor); 398 0.7 (Bangor); 0.36 n/a............... n/a.
(others). (Zelatched
Point); 0.5
(Everett).
Steel (36-in; no BC)............ 1,359............. 0.42 (Keyport).... 11.7 (Bangor); 4.9 (Keyport);
13.6 (others). 75.24 (Zelatched
Point); 117.8
(Everett); 40.9
(Bangor).
Sheet steel..................... n/a............... n/a............... 7.4............... 15.0 (Bremerton).
----------------------------------------------------------------------------------------------------------------
BC = bubble curtain.
\1\ Radial distance to threshold in meters.
\2\ Ensonified area in square kilometers.
\3\ Radial distance to threshold in kilometers.
\4\ Zones for impact driving of 18-in concrete piles are equivalent to those for impact driving of timber piles.
Zones for vibratory removal of up to 18-in diameter plastic/timber piles are assumed to be equivalent to those
for \13/14\-in timber piles.
\5\ Zones for vibratory driving of 16-in steel piles assumed equivalent to those for 24-in steel piles.
\6\ Worst-case values for vibratory extraction of timber/plastic piles at NBK Manchester, where piles to be
removed are a maximum 18-in diameter.

Marine Mammal Occurrence

Available information regarding marine mammal occurrence in the
vicinity of the six installations includes density information
aggregated in the Navy's Marine Mammal Species Density Database (NMSDD;
Navy, 2015) or site-specific survey information from particular
installations (e.g., local pinniped counts). More recent density
estimates for harbor porpoise are available in Smultea et al. (2017).
First, for each installation we describe anticipated frequency of
occurrence and the information deemed most appropriate for the exposure
estimates. For all facilities, large whales (humpback whale, minke
whale, and gray whale), killer whales (transient and resident), and the
elephant seal are considered as occurring only rarely and
unpredictably, on the basis of past sighting records. For these
species, average group size is considered in concert with expected
frequency of occurrence to develop the most realistic exposure
estimate. Although certain species are not expected to occur at all at
some facilities--for example, resident killer whales are not expected
to occur in Hood Canal--the Navy has developed an overall take estimate
and request for these species that would apply to activities occurring
over the 5-year duration at all six installations.
NBK Bangor: In addition to the species described above,
the Dall's porpoise is considered as a rare, unpredictably occurring
species. A density-based analysis is used for the harbor porpoise,
while data from site-specific abundance surveys is used for the
California sea lion, Steller sea lion, and harbor seal.
Zelatched Point: In addition to the species described
above, the Dall's porpoise is considered as a rare, unpredictably
occurring species. A density-based analysis is used for the harbor
porpoise, California sea lion, Steller sea lion, and harbor seal.
NBK Bremerton: A density-based analysis is used for the
harbor porpoise, Dall's porpoise, and Steller sea lion, while data from
site-specific abundance surveys is used for the California sea lion and
harbor seal.
NBK Keyport: A density-based analysis is used for the
harbor porpoise, Dall's porpoise, California sea lion, Steller sea
lion, and harbor seal.

[[Page 15973]]

NBK Manchester: A density-based analysis is used for the
harbor porpoise, Dall's porpoise, and harbor seal, while data from
site-specific abundance surveys is used for the California sea lion and
Steller sea lion.
NS Everett: A density-based analysis is used for the
harbor porpoise, Dall's porpoise, and Steller sea lion, while data from
site-specific abundance surveys is used for the California sea lion and
harbor seal.

Table 8--Marine Mammal Densities
------------------------------------------------------------------------
Density (June-
Species Region February)
------------------------------------------------------------------------
Harbor porpoise............... Hood Canal (Bangor, 0.44
Zelatched Point). 0.75
East Whidbey 0.53
(Everett). 0.25
Bainbridge
(Bremerton, Keyport).
Vashon (Manchester)..
Dall's porpoise............... Puget Sound.......... 0.039
Steller sea lion.............. Puget Sound.......... 0.0368
Dabob Bay............ 0.0251
California sea lion........... Puget Sound.......... 0.1266
Dabob Bay............ 0.279
Harbor seal................... Everett.............. 2.2062
Keyport/Manchester... 1.219
Dabob Bay............ 9.918
------------------------------------------------------------------------
Sources: Navy, 2015; Smultea et al., 2017 (harbor porpoise).

Exposure Estimates

To quantitatively assess exposure of marine mammals to noise from
pile driving activities, we use three methods, determined by the
species' spatial and temporal occurrence. For species with rare or
infrequent occurrence at a given installation during the in-water work
window, the likelihood of interaction was reviewed on the basis of past
records of occurrence (described in detail in our Federal Register
notice of proposed rulemaking (83 FR 9366; March 5, 2018)) and the
potential maximum duration of work days at each installation, as well
as total work days for all installations. Occurrence of the species in
this category (i.e., large whales, killer whales, elephant seal (all
installations), and Dall's porpoise (Hood Canal)) would not be
anticipated to extend for multiple days. For the large whales and
killer whales, the duration of occurrence was set to two days, expected
to be roughly equivalent to one transit in the vicinity of a project
site. The calculation for species with rare or infrequent occurrence
is:

Exposure estimate = expected group size x probable duration

0For species that occur regularly but for which site-specific
abundance information is not available, density estimates (Table 8)
were used to determine the number of animals potentially exposed on any
one day of pile driving or extraction. The calculation for density-
based analysis of species with regular occurrence is:

Exposure estimate = N (density) x ZOI (area) x maximum days of pile
driving

For remaining species, site-specific abundance information (i.e.,
average monthly maximum over the time period when pile driving will
occur) was used:

Exposure estimate = Abundance x maximum days of pile driving

Large Whales--For each species of large whale (i.e., humpback
whale, minke whale, and gray whale), we assume rare and infrequent
occurrence at all installations. For all three species, if observed,
they typically occur singly or in pairs. Therefore, for all three
species, we assume that a pair of whales may occur in the vicinity of
an installation for a total of two days. We do not expect that this
would happen multiple times, and cannot predict where such an
occurrence may happen, so would authorize a total of four takes by
Level B harassment of each species in total for the 5-year duration
(across all installations).
It is important to note that the Navy will implement a shutdown of
pile driving activity if any large whale is observed within any defined
harassment zone (see Mitigation section below). Therefore, the take
number is intended to provide insurance against the event that whales
occur within Level B harassment zones that cannot be fully observed by
monitors. As a result of this mitigation, we do not believe that Level
A harassment is a likely outcome upon occurrence of any large whale.
While the calculated Level A harassment zone is as large as 2.5 km for
impact driving of 36-in steel piles without a bubble curtain (ranging
from 136-736 m for other impact driving scenarios), this requires that
a whale be present at that range for the full assumed duration of 1,000
pile strikes (expected to require 1.5 hours). Given the Navy's
commitment to shut down upon observation of a large whale, and the
likelihood that the presence of a large whale in the vicinity of any
Navy installation would be known due to reporting via Orca Network (see
Monitoring and Reporting), we do not expect that any whale would be
present within a Level A harassment zone for sufficient duration to
actually experience permanent threshold shift (PTS).
Killer Whales--For killer whales, the take number is derived via
the same process described above for large whales. For transient killer
whales, we assume an average group size of six whales occurring for a
period of two days. The resulting total take number of 12 would also
account for the low probability that a larger group occurred once. For
resident killer whales, we assume an average group size of 20 whales
occurring for two days. This is equivalent to the expected pod size for
J pod, which is most likely to occur in the vicinity of Navy
installations, but would also account for the unlikely occurrence of L
pod (with a size of approximately 40 whales) once in the vicinity of
any Navy installation.
As with large whales, the Navy will implement shutdown of pile
driving activity at any time that any killer whale is observed within
any calculated harassment zone. We expect this to minimize the extent
and duration of any Level B harassment. Given the small size of
calculated Level A harassment zones--maximum of 63 m for the worst-case
scenario of impact-driven 36-in steel piles with no bubble curtain,
other scenarios range from 1-10 m--we do not anticipate any potential
for Level A harassment of killer whales.
Dall's Porpoise--Using the density given in Table 8, the largest
appropriate

[[Page 15974]]

ZOI for each of the four installations in Puget Sound, and the number
of days associated with each of these installations (as indicated in
harbor porpoise section below), the total estimated exposure of Dall's
porpoises above Level B harassment thresholds is 146. Dall's porpoises
are not expected to occur in Hood Canal. Dall's porpoises are not
expected to occur frequently in the vicinity of Navy installations and
have not been reported in recent years. This total take authorization
number (146) is applied to all installations over the 5-year duration.
The Navy will implement shutdown of pile driving activity at any
time if a Dall's porpoise is observed in any harassment zone.
Therefore, the take estimate is precautionary in accounting for
potential occurrence in areas that cannot be visually observed or in
the event that porpoises appear within Level B harassment zones before
shutdown can be implemented. As was described for large whales, as a
result of this mitigation, we do not believe that Level A harassment is
a likely outcome. While the calculated Level A harassment zone is as
large as 2.5 km for impact driving of 36-in steel piles without a
bubble curtain (ranging from 136-541 m for other impact driving
scenarios), this requires that a porpoise be present at that range for
the full assumed duration of 1,000 pile strikes (expected to require
1.5 hours). Given the Navy's commitment to shut down upon observation
of a porpoise, and the likelihood that a porpoise would engage in
aversive behavior prior to experiencing PTS, we do not expect that any
porpoise would be present within a Level A harassment zone for
sufficient duration to actually experience PTS.
Harbor Porpoise--Level B harassment estimates for harbor porpoise
were calculated for each installation using the appropriate density
given in Table 8, the largest appropriate ZOI for each installation,
and the appropriate number of days.
NBK Bangor: Using the Hood Canal sub-region density, 119
days of pile driving, and the largest ZOI calculated for pile driving
at this location (40.9 km\2\ for vibratory installation of 30- or 36-in
steel piles) produces an estimate of 2,142 incidents of Level B
harassment exposure for harbor porpoise.
Zelatched Point: Using the Hood Canal sub-region density,
20 days of pile driving, and the largest ZOI calculated for pile
driving at this location (75.24 km\2\ for vibratory installation of 30-
or 36-in steel piles) produces an estimate of 662 incidents of Level B
harassment exposure for harbor porpoise.
NBK Bremerton: Using the Bainbridge sub-region density,
168 days of pile driving, and the largest ZOI calculated for pile
driving at this location (15 km\2\ for vibratory installation of sheet
steel piles) produces an estimate of 1,336 incidents of Level B
harassment exposure for harbor porpoise.
NBK Keyport: Using the Bainbridge sub-region density, 20
days of pile driving, and the largest ZOI calculated for pile driving
at this location (4.9 km\2\ for vibratory installation of 30- or 36-in
steel piles) produces an estimate of 52 incidents of Level B harassment
exposure for harbor porpoise.
NBK Manchester: Using the Vashon sub-region density, 50
days of pile driving, and the largest ZOI calculated for vibratory
removal of timber piles (7.8 km\2\ for vibratory extraction of timber
piles) produces an estimate of 98 incidents of Level B harassment
exposure for harbor porpoise.
NS Everett: Using the East Whidbey sub-region density, 78
days of pile driving, and the largest ZOI calculated for vibratory
extraction of timber piles (9.4 km\2\) produces an estimate of 552
incidents of Level B harassment exposure for harbor porpoise. Although
some vibratory installation is anticipated for a single steel pile, we
anticipate this would occur for only a brief period. Therefore, use of
the assumed zone for vibratory extraction of timber piles is
appropriate in accounting for reasonably expected marine mammal
exposure at this location.
The Navy will implement shutdown of pile driving activity at any
time if a harbor porpoise is observed in any harassment zone.
Therefore, the take estimate is precautionary in accounting for
potential occurrence in areas that cannot be visually observed or in
the event that porpoises appear within Level B harassment zones before
shutdown can be implemented. As was described for large whales, as a
result of this mitigation, we do not believe that Level A harassment is
a likely outcome. While the calculated Level A harassment zone is as
large as 2.5 km for impact driving of 36-in steel piles without a
bubble curtain (ranging from 136-541 m for other impact driving
scenarios), this requires that a porpoise be present at that range for
the full assumed duration of 1,000 pile strikes (expected to require
1.5 hours). Given the Navy's commitment to shut down upon observation
of a porpoise, and the likelihood that a porpoise would engage in
aversive behavior prior to experiencing PTS, we do not expect that any
porpoise would be present within a Level A harassment zone for
sufficient duration to actually experience PTS.
Steller Sea Lion--Level B harassment exposure estimates for Steller
sea lions were calculated for each installation using the appropriate
density given in Table 8 or site-specific abundance, the largest
appropriate ZOI for each installation, and the appropriate number of
days. Additional detail regarding site-specific abundance information
was provided in our Federal Register notice of proposed rulemaking (83
FR 9366; March 5, 2018).
NBK Bangor: The average of the monthly maximum counts
during the in-water work window provides an estimate of three Steller
sea lions present per day. Using this value for 119 days results in an
estimate of 357 incidents of Level B harassment exposure.
Zelatched Point: Using the Dabob Bay density value (Table
8), 20 days of pile driving, and the largest ZOI calculated for pile
driving at this location (75.24 km\2\ for vibratory installation of 30-
or 36-in steel piles) produces an estimate of 38 incidents of Level B
harassment exposure for Steller sea lions.
NBK Bremerton: Using the Puget Sound density value (Table
8), 168 days of pile driving, and the largest ZOI calculated for pile
driving at this location (15 km\2\ for vibratory installation of sheet
steel piles) produces an estimate of 93 incidents of Level B harassment
exposure for Steller sea lions.
NBK Keyport: Using the Puget Sound density value (Table
8), 20 days of pile driving, and the largest ZOI calculated for pile
driving at this location (4.9 km\2\ for vibratory installation of 30-
or 36-in steel piles) produces an estimate of four incidents of Level B
harassment exposure for Steller sea lions.
NBK Manchester: Site-specific occurrence data indicate
that 10 Steller sea lions may be present on any given day. Using this
average value for 50 days results in an estimate of 500 incidents of
Level B harassment exposure.
NS Everett: Using the Puget Sound density value (Table 8),
78 days of pile driving, and the largest ZOI calculated for this
location (9.4 km\2\) produces an estimate of 27 incidents of Level B
exposure for Steller sea lion.
Given the small size of calculated Level A harassment zones--
maximum of 43 m for the worst-case scenario of impact-driven 36-in
steel piles with no bubble curtain, other scenarios range from 1-11 m--
we do not anticipate any

[[Page 15975]]

potential for Level A harassment of Steller sea lions.
California Sea Lions--Level B harassment exposure estimates for
California sea lions were calculated for each installation using the
appropriate density given in Table 8 or site-specific abundance, the
largest appropriate ZOI for each installation, and the appropriate
number of days. Additional detail regarding site-specific abundance
information was provided in our Federal Register notice of proposed
rulemaking (83 FR 9366; March 5, 2018).
NBK Bangor: The average of the monthly maximum counts
during the in-water work window provides an estimate of 49 California
sea lions per day. Using this value for 119 days results in an estimate
of 5,831 incidents of Level B harassment exposure.
Zelatched Point: Using the Dabob Bay density value (Table
8), 20 days of pile driving, and the largest ZOI calculated for pile
driving at this location (75.24 km\2\ for vibratory installation of 30-
or 36-in steel piles) produces an estimate of 420 incidents of Level B
harassment exposure for California sea lions.
NBK Bremerton: The average of the monthly maximum counts
during the in-water work window provides an estimate of 69 California
sea lions per day. Using this value for 168 days results in an estimate
of 11,592 incidents of Level B harassment exposure.
NBK Keyport: Using the Puget Sound density value (Table
8), 20 days of pile driving, and the largest ZOI calculated for pile
driving at this location (4.9 km\2\ for vibratory installation of 30-
or 36-in steel piles) produces an estimate of 12 incidents of Level B
harassment exposure for California sea lions.
NBK Manchester: Site-specific occurrence data indicate
that 43 California sea lions may be present on any given day. Using
this average value for 50 days results in an estimate of 2,150
incidents of Level B harassment exposure.
NS Everett: The average of the monthly maximum counts
during the in-water work window provides an estimate of 66 California
sea lions per day. Using this value for 78 days results in an estimate
of 5,148 incidents of Level B harassment exposure.
Given the small size of calculated Level A harassment zones--
maximum of 43 m for the worst-case scenario of impact-driven 36-in
steel piles with no bubble curtain, other scenarios range from 1-11 m--
we do not anticipate any potential for Level A harassment of California
sea lions.
Harbor Seal--Harbor seals are expected to occur year-round at all
installations, with the greatest numbers expected at installations with
nearby haul-out sites. Level B harassment exposure estimates for harbor
seals were calculated for each installation using the appropriate
density given in Table 8 or site-specific abundance, the largest
appropriate ZOI for each installation, and the appropriate number of
days. Additional detail regarding site-specific abundance information
was provided in our Federal Register notice of proposed rulemaking (83
FR 9366; March 5, 2018).
Harbor seals are expected to be the most abundant marine mammal at
all installations, often occurring in and around existing in-water
structures in a way that may restrict observers' ability to adequately
observe seals and subsequently implement shutdowns. In addition, the
calculated Level A harassment zones are significantly larger than those
for sea lions, which may also be abundant at various installations at
certain times of year. For harbor seals, the largest calculated Level A
harassment zone is 736 m (compared with a maximum zone of 43 m for sea
lions), calculated for the worst-case scenario of impact-driven 36-in
steel piles without use of the bubble curtain. Other scenarios range
from 25-158 m. Therefore, we assume that some Level A harassment is
likely to occur for harbor seals and provide installation-specific
estimates below.
NBK Bangor: Site-specific occurrence data indicate that as
many as 28 harbor seals hauled out per day under Marginal Wharf (or
were observed swimming in adjacent waters). Assuming a few other
individuals may be present elsewhere on the Bangor waterfront, we
estimate that 35 harbor seals may be present per day near the
installation during summer and early fall, which are expected to be
months with greatest abundance of seals. Using this value for 119 days
results in an estimate of 4,165 incidents of Level B harassment
exposure.
Considering the largest Level A harassment zone expected to
typically occur at NBK Bangor (158 m), and assuming as a precaution
that one seal per day could remain within the calculated zone for a
sufficient period to accumulate enough energy to result in PTS, we
estimate 119 incidents of take by Level A harassment. It is important
to note that the estimate of potential Level A harassment for NBK
Bangor is expected to be an overestimate, as planned projects are not
expected to occur near Marginal Wharf--the location where most harbor
seal activity occurs.
Zelatched Point: Using the Dabob Bay density value (Table
8), 20 days of pile driving, and the largest ZOI calculated for pile
driving at this location (75.24 km\2\ for vibratory installation of 30-
or 36-in steel piles) produces an estimate of 14,925 incidents of Level
B harassment exposure for harbor seals. The largest calculated Level A
harassment zone at Zelatched Point would be 158 m. However, because
harbor seals are not known to haul out or congregate in the vicinity of
in-water structures, as is the case at NBK Bangor, we do not anticipate
that Level A harassment will occur at Zelatched Point and will not
authorize such take.
NBK Bremerton: Site-specific occurrence data indicate that
approximately 11 harbor seals may be present per day. Using this value
for 168 days results in an estimate of 1,848 incidents of Level B
harassment exposure. The largest Level A harassment zone at NBK
Bremerton would be 86 m and, given the lack of regular presence of
harbor seals in close proximity to existing in-water structures, we do
not anticipate that Level A harassment will occur at NBK Bremerton and
will not authorize such take.
NBK Keyport: No harbor seal haul-outs have been identified
at this installation. Using the Puget Sound density value (Table 8), 20
days of pile driving, and the largest ZOI calculated for pile driving
at this location (4.9 km\2\ for vibratory installation of 30- or 36-in
steel piles) produces an estimate of 119 incidents of Level B
harassment exposure for harbor seals. Given the lack of haul-outs and
of regular harbor seal presence at this installation, we do not
anticipate that Level A harassment will occur at NBK Keyport and will
not authorize such take.
NBK Manchester: No harbor seal haul-outs have been
identified at this installation. Using the appropriate density value
(Table 8), 50 days of pile driving, and the largest ZOI calculated for
vibratory extraction of timber piles (7.8 km\2\) produces an estimate
of 477 incidents of Level B harassment exposure for harbor seals. Given
the lack of haul-outs and of regular harbor seal presence at this
installation, we do not anticipate that Level A harassment will occur
at NBK Manchester and will not authorize such take.
NS Everett: The average of the monthly maximum counts
during the in-water work window provides an estimate of 212 seals per
day. Using this

[[Page 15976]]

value for 78 days results in an estimate of 16,536 incidents of Level B
harassment exposure.
The largest Level A harassment zone calculated for NS Everett (158
m) would occur for only one day during impact driving of the single 36-
in steel pile. During the remainder of pile driving at this
installation, the largest Level A harassment zone would be 34 m (impact
driving of 24-in concrete piles). Given the abundant seal population at
this site, we assume that some portion of the seal population may be
present and unobserved within these zones for a sufficient period to
accumulate enough energy to result in PTS. For the larger zone, we
assume that 11 seals (five percent of animals present) may occur within
the Level A harassment zone for such a duration, while for the smaller
zone associated with concrete piles, we assume that two seals (one
percent of animals present) of the population may occur within the zone
for such a duration. Therefore, we estimate a total number of 165
incidents of take by Level A harassment (i.e., two seals on each of the
77 concrete pile driving days in addition to 11 seals on the one day on
which a steel pile would be installed).
Northern Elephant Seal--Northern elephant seals are considered rare
visitors to Puget Sound. However, solitary juvenile elephant seals have
been known to sporadically haul out to molt in Puget Sound during
spring and summer months. Because there are occasional sightings in
Puget Sound, we reason that exposure of up to one seal to noise above
Level B harassment thresholds could occur for a two-day duration. This
event could occur at any installation over the 5-year duration of these
regulations.
The total amount of take by Level B harassment that may be
authorized for all species and installations is summarized in Table 9
below. Take by Level A harassment may be authorized only for harbor
seals occurring at NBK Bangor and NS Everett (a total of 284 such
incidents, as detailed above).

Table 9--Estimated Take by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Zelatched Percent
Species Bangor Point Bremerton Keyport Manchester Everett Total \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale......................................... Applies across all installations 4 0.2
-------------------------------------------------------------------------
Minke whale............................................ Applies across all installations 4 0.02
-------------------------------------------------------------------------
Gray whale............................................. Applies across all installations 4 0.6
-------------------------------------------------------------------------
Killer whale (transient)............................... Applies across all installations 12 4.9
-------------------------------------------------------------------------
Killer whale (resident)................................ Applies across all installations 40 48.2
-------------------------------------------------------------------------
Dall's porpoise........................................ Applies across all installations 146 0.6
-------------------------------------------------------------------------
Harbor porpoise........................................ 2,142 662 1,336 52 98 552 4,842 43.1
Steller sea lion....................................... 357 38 93 4 500 27 1,019 2.4
California sea lion.................................... 5,831 420 11,592 12 2,150 5,148 25,153 8.5
Harbor seal............................................ 4,680 14,925 1,848 119 477 16,536 38,585 n/a
-------------------------------------------------------------------------
Elephant seal.......................................... Applies across all installations 2 0.001
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Please see Small Numbers Analysis for more details about these percentages.

Mitigation

Under Section 101(a)(5)(A) of the MMPA, NMFS must set forth the
permissible methods of taking pursuant to such activity, and other
means of effecting the least practicable adverse impact on such species
or stock and its habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance, and on the
availability of such species or stock for taking for certain
subsistence uses (``least practicable adverse impact''). NMFS does not
have a regulatory definition for ``least practicable adverse impact.''
However, NMFS's implementing regulations require applicants for
incidental take authorizations to include information about the
availability and feasibility (economic and technological) of equipment,
methods, and manner of conducting such activity or other means of
effecting the least practicable adverse impact upon the affected
species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, implementation of
the measure(s) is expected to reduce impacts to marine mammal species
or stocks, their habitat, and their availability for subsistence uses.
This analysis will consider such things as the nature of the potential
adverse impact (such as likelihood, scope, and range), the likelihood
that the measure will be effective if implemented, and the likelihood
of successful implementation.
(2) The practicability of the measure for applicant implementation.
Practicability of implementation may consider such things as cost,
impact on operations, personnel safety, and practicality of
implementation.
The mitigation strategies described below largely follow those
required and successfully implemented under previous incidental take
authorizations issued in association with similar construction
activities. Measurements from similar pile driving events were coupled
with practical spreading loss and other relevant information to
estimate ZOIs (see ``Estimated Take''); these ZOI values were used to
develop mitigation measures for pile driving activities at the six
installations. Background discussion related to underwater sound
concepts and terminology was provided in our Federal Register notice of
proposed rulemaking (83 FR 9366; March 5, 2018). The ZOIs were used to
inform the mitigation zones that would be established to prevent Level
A harassment and to minimize Level B harassment for all cetacean
species, while providing estimates of the areas within which Level B
harassment might occur.
During installation of steel piles, the Navy will use vibratory
driving to the maximum extent practicable. In addition to the specific
measures described later in this section, the Navy will conduct
briefings for construction

[[Page 15977]]

supervisors and crews, the marine mammal monitoring team, and Navy
staff prior to the start of all pile driving activity, and when new
personnel join the work, in order to explain responsibilities,
communication procedures, the marine mammal monitoring protocol, and
operational procedures. Other mitigation requirements committed to by
the Navy but not relating to marine mammals (e.g., construction best
management practices) are described in section 11 of the Navy's
application.

Timing

As described previously, the Navy will adhere to in-water work
windows designed for the protection of fish. These timing windows would
also benefit marine mammals by limiting the annual duration of
construction activities. At NBK Bangor and Zelatched Point, the Navy
will adhere to a July 16 through January 15 window, while at the
remaining facilities this window is extended to February 15.
On a daily basis, in-water construction activities will occur only
during daylight hours (sunrise to sunset) except from July 16 to
September 15 when impact pile driving will only occur starting two
hours after sunrise and ending two hours before sunset in order to
protect marbled murrelets (Brachyramphus marmoratus) during the nesting
season.

Monitoring and Shutdown for Pile Driving

The following measures apply to the Navy's mitigation through
shutdown and disturbance zones:
Shutdown Zone--The purpose of a shutdown zone is to define an area
within which shutdown of activity would occur upon sighting of a marine
mammal (or in anticipation of a marine mammal entering the defined
area), thus preventing some undesirable outcome, such as auditory
injury or behavioral disturbance of sensitive species (serious injury
or death are unlikely outcomes even in the absence of mitigation
measures). For all pile driving activities, the Navy will establish a
minimum shutdown zone with a radial distance of 10 m. This minimum zone
is intended to prevent the already unlikely possibility of physical
interaction with construction equipment and to establish a
precautionary minimum zone with regard to acoustic effects.
Relevant information regarding Level A harassment zones was
provided in Tables 3-5 and calculated isopleth distances were provided
in Table 6. In many cases, especially for vibratory driving, the
minimum shutdown zone of 10 m is expected to contain the area in which
auditory injury could occur. In all circumstances where the predicted
Level A harassment zone exceeds the minimum zone, the Navy shall
implement a shutdown zone equal to the predicted Level A harassment
zone (see Table 6). In addition, the Navy will implement shutdown upon
observation of any cetacean within a calculated Level B harassment zone
(see Table 7).
Disturbance Zone--Disturbance zones are the areas in which sound
pressure levels equal or exceed 160 and 120 dB rms (for impact and
vibratory pile driving, respectively). Disturbance zones provide
utility for monitoring conducted for mitigation purposes (i.e.,
shutdown zone monitoring) by establishing monitoring protocols for
areas adjacent to the shutdown zones and, as noted above, the
disturbance zones act as de facto shutdown zones for cetaceans.
Monitoring of disturbance zones enables observers to be aware of and
communicate the presence of marine mammals in the project area but
outside the shutdown zone, and thus prepare for potential shutdowns of
activity. For cetaceans, the Navy will implement shutdowns upon
observation of any cetacean within a disturbance zone (while
acknowledging that some disturbance zones are too large to practicably
monitor)--these will also be recorded as incidents of harassment. For
pinnipeds, the primary purpose of disturbance zone monitoring is for
documenting incidents of Level B harassment; disturbance zone
monitoring is discussed in greater detail later (see ``Monitoring and
Reporting''). Nominal radial distances for disturbance zones are shown
in Table 7.
In order to document observed incidents of harassment, monitors
record all marine mammal observations, regardless of location. The
observer's location and the location of the pile being driven will be
known, and the location of the animal may be estimated as a distance
from the observer and then compared to the location from the pile. It
may then be estimated whether the animal was exposed to sound levels
constituting incidental harassment on the basis of predicted distances
to relevant thresholds in post-processing of observational data, and a
precise accounting of observed incidents of harassment created. This
information may then be used to extrapolate observed takes to reach an
approximate understanding of actual total takes, in cases where the
entire zone was not monitored.
Monitoring Protocols--Monitoring will be conducted before, during,
and after pile driving activities. In addition, observers will record
all incidents of marine mammal occurrence, regardless of distance from
activity, and monitors will document any behavioral reactions in
concert with distance from piles being driven. Observations made
outside the shutdown zone will not result in shutdown; that pile
segment will be completed without cessation, unless the animal
approaches or enters the shutdown zone, at which point all pile driving
activities would be halted. Monitoring will take place from 15 minutes
prior to initiation through 30 minutes post-completion of pile driving
activities. Pile driving activities include the time to install or
remove a single pile or series of piles, as long as the time elapsed
between uses of the pile driving equipment is no more than 30 minutes.
Prior to the start of pile driving on any day, the Navy will
contact and/or review the latest sightings data from the Orca Network
and/or Center for Whale Research to determine the location of the
nearest marine mammal sightings. The Orca Sightings Network consists of
a list of over 600 residents, scientists, and government agency
personnel in the United States and Canada, and includes passive
acoustic detections. The presence of a killer whale in the vicinity of
any of the six installations would likely be a notable event, drawing
public attention and media scrutiny. With this level of coordination in
the region of activity, the Navy should be able to effectively receive
real-time information on the presence or absence of whales, sufficient
to inform the day's activities. Pile driving will not occur if there is
a risk of incidental harassment of a southern resident killer whale.
The following additional measures apply to visual monitoring:
(1) Monitoring will be conducted by qualified, trained protected
species observers, who will be placed at the best vantage point(s)
practicable (i.e., from a small boat, construction barges, on shore, or
any other suitable location) to monitor for marine mammals and
implement shutdown/delay procedures when applicable by calling for the
shutdown to the hammer operator. Observers shall have no other
construction-related tasks while conducting monitoring. Observers
should have the following minimum qualifications:
Visual acuity in both eyes (correction is permissible)
sufficient for discernment of moving targets at the water's surface
with ability to estimate target size and distance; use of binoculars
may be necessary to correctly identify the target;

[[Page 15978]]

Ability to conduct field observations and collect data
according to assigned protocols;
Experience or training in the field identification of
marine mammals, including the identification of behaviors;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
Writing skills sufficient to document observations
including, but not limited to: the number and species of marine mammals
observed; dates and times when in-water construction activities were
conducted; dates and times when in-water construction activities were
suspended to avoid potential incidental injury of marine mammals from
construction noise within a defined shutdown zone; and marine mammal
behavior; and
Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
Observer teams employed by the Navy in satisfaction of the
mitigation and monitoring requirements described herein must meet the
following additional requirements:
Independent observers (i.e., not construction personnel)
are required.
At least one observer must have prior experience working
as an observer.
Other observers may substitute education (degree in
biological science or related field) or training for experience.
Where a team of three or more observers are required, one
observer should be designated as lead observer or monitoring
coordinator. The lead observer must have prior experience working as an
observer.
(2) Prior to the start of pile driving activity, the shutdown zone
will be monitored for 15 minutes to ensure that it is clear of marine
mammals. Pile driving will only commence once observers have declared
the shutdown zone clear of marine mammals; marine mammals will be
allowed to remain in the shutdown zone (i.e., must leave of their own
volition), and their behavior will be monitored and documented. The
shutdown zone may only be declared clear, and pile driving started,
when the entire shutdown zone is visible (i.e., when not obscured by
dark, rain, fog, etc.). In addition, if such conditions should arise
during impact pile driving that is already underway, the activity will
halt.
(3) If a marine mammal approaches or enters the shutdown zone
during the course of pile driving operations, activity will be halted
and delayed until either the animal has voluntarily left and been
visually confirmed beyond the shutdown zone or fifteen minutes have
passed without re-detection of the animal. Monitoring will be conducted
throughout the time required to drive a pile and for thirty minutes
following the conclusion of pile driving.

Soft Start

The use of a soft start procedure is believed to provide additional
protection to marine mammals by warning marine mammals or providing
them with a chance to leave the area prior to the hammer operating at
full capacity, and typically involves a requirement to initiate sound
from the hammer at reduced energy followed by a waiting period. This
procedure is repeated two additional times. It is difficult to specify
the reduction in energy for any given hammer because of variation
across drivers and, for impact hammers, the actual number of strikes at
reduced energy will vary because operating the hammer at less than full
power results in ``bouncing'' of the hammer as it strikes the pile,
resulting in multiple ``strikes.'' The Navy will utilize soft start
techniques for impact pile driving. We require an initial set of three
strikes from the impact hammer at reduced energy, followed by a 30-
second waiting period, then 2 subsequent 3-strike sets. Soft start will
be required at the beginning of each day's impact pile driving work and
at any time following a cessation of impact pile driving of thirty
minutes or longer; the requirement to implement soft start for impact
driving is independent of whether vibratory driving has occurred within
the prior 30 minutes.

Bubble Curtain

Sound levels can be greatly reduced during impact pile driving
using sound attenuation devices, including bubble curtains, which
create a column of air bubbles rising around a pile from the substrate
to the water surface. The air bubbles absorb and scatter sound waves
emanating from the pile, thereby reducing the sound energy. Bubble
curtains may be confined or unconfined. Cushion blocks are also
commonly used by construction contractors in order to protect equipment
and the driven pile; use of cushion blocks typically reduces emitted
sound pressure levels to some extent.
The literature presents a wide array of observed attenuation
results for bubble curtains (see Appendix B of the Navy's application).
The variability in attenuation levels is due to variation in design, as
well as differences in site conditions and difficulty in properly
installing and operating in-water attenuation devices. As a general
rule, reductions of greater than 10 dB cannot be reliably predicted.
Prior monitoring by the Navy during a project at NBK Bangor reported a
range of measured values for realized attenuation mostly within 6 to 12
dB, but with an overall average of 9 dB in effective attenuation
(Illingworth and Rodkin, 2012).
The Navy will use a bubble curtain during impact driving of all
steel piles greater than 14-in diameter in water depths greater than 2
ft (0.67 m), except at NBK Bremerton and Keyport. Bubble curtains will
not be used during impact driving of smaller steel piles or other pile
types due to the relatively low source levels, as the requirement to
deploy the curtain system at each driven pile results in a
significantly lower production rate. Where a bubble curtain is used,
the contractor will be required to turn it on prior to the soft start
in order to flush fish from the area closest to the driven pile.
Bubble curtains cannot be used at NBK Bremerton and Keyport due to
the risk of disturbing contaminated sediments at these sites. Sediment
contamination within Sinclair Inlet, including the project areas at NBK
Bremerton, includes a variety of metals and organic chemicals
originating from human sources. The marine sediments have been affected
by past shipyard operations, leaching from creosote-treated piles, and
other activities in Sinclair Inlet. Sediments at the project sites and
adjacent to the piers at Bremerton have a pollution control plan for
various metals, polycyclic aromatic hydrocarbons, polychlorinated
biphenyls, and other semivolatile organic compounds (SVOC), and active
cleanup is occurring pursuant to the terms of an agreement developed
under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) in cooperation with the U.S. Environmental
Protection Agency and the Washington Department of Ecology. The
sediment at and near Keyport in Liberty Bay also has a pollution
control plan, for multiple heavy metals, polychlorinated aromatic
hydrocarbons, phthalates, and various other SVOCs. The Navy will assess
the use of bubble curtains at NBK Keyport on a project-by-project
basis.
To avoid loss of attenuation from design and implementation errors,
the Navy will require specific bubble curtain design specifications,
including testing requirements for air pressure and flow at each
manifold ring prior to initial impact hammer use, and a requirement for
placement on the

[[Page 15979]]

substrate. The bubble curtain must distribute air bubbles around 100
percent of the piling perimeter for the full depth of the water column.
The lowest bubble ring shall be in contact with the mudline for the
full circumference of the ring, and 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. The contractor shall
also train personnel in the proper balancing of air flow to the
bubblers, and must 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
standards shall occur prior to use for impact driving.
We have carefully evaluated the Navy's planned mitigation measures
and considered a range of other measures in the context of ensuring
that we prescribe the means of effecting the least practicable adverse
impact on the affected marine mammal species and stocks and their
habitat. Based on our evaluation of these measures, we have determined
that the planned mitigation measures provide the means of effecting the
least practicable adverse impact on marine mammal species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and on the availability of
such species or stock for subsistence uses.

Monitoring and Reporting

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

Coordination and Plan Development

An installation-specific marine mammal monitoring plan for each
year's anticipated work will be developed by the Navy and presented
each year for approval by NMFS prior to the start of construction.
Final monitoring plans will be prepared and submitted to NMFS within 30
days following receipt of comments on the draft plans from NMFS. Please
see Appendix D of the Navy's application for a marine mammal monitoring
plan template. During each in-water work period covered by an LOA, the
Navy will periodically update NMFS on the progress of ongoing projects,
as needed.

Visual Marine Mammal Observations

The Navy will collect sighting data and behavioral responses to
pile driving activity for marine mammal species observed in the region
of activity during the period of activity. The number and location of
required observers will be determined specific to each installation on
an annual basis, depending on the nature of work anticipated (including
the size of zones to be monitored). All observers will be trained in
marine mammal identification and behaviors and are required to have no
other construction-related tasks while conducting monitoring. The Navy
will monitor all shutdown zones at all times, and will monitor
disturbance zones to the extent practicable (some zones are too large
to fully observe (Table 7)). The Navy will conduct monitoring before,
during, and after pile driving, with observers located at the best
practicable vantage points.
As noted above, the Navy plans to monitor the full shutdown zone
with appropriate marine mammal monitors. By developing monitoring plans
based on specific project details, an adequate number of observers will
be assigned to provide full coverage of the shutdown zones. Survey
boats will be utilized for all projects that have monitoring zones
extending beyond the visual survey range of shoreline monitors.
As described in ``Mitigation'' and based on our requirements, the
Navy will implement the following procedures for pile driving:
Marine mammal observers will be located at the best
vantage point(s) in order to properly see the entire shutdown zone and
as much of the disturbance zone as possible.
During all observation periods, observers will use
binoculars and the naked eye to search continuously for marine mammals.
If the shutdown zones are obscured by fog or poor lighting
conditions, pile driving at that location will not be initiated until
that zone is visible. Should such conditions arise while impact driving
is underway, the activity will halt.
The shutdown zone around the pile will be monitored for
the presence of marine mammals before, during, and after all pile
driving activity, while disturbance zone monitoring will be implemented
according to the schedule described here.
Individuals implementing the monitoring protocol will assess its
effectiveness using an adaptive approach. Monitoring biologists will
use their best professional judgment throughout implementation and seek
improvements to these methods when deemed appropriate. Any
modifications to the protocol will be coordinated between NMFS and the
Navy.

Data Collection

We require that observers use standardized data forms. Among other
pieces of information, the Navy will record detailed information about
any implementation of shutdowns, including the distance of animals to
the pile and a description of specific actions that ensued and
resulting behavior of the animal, if any. We require that, at a
minimum, the following information be collected on the sighting forms:
Date and time that monitored activity begins or ends;
Construction activities occurring during each observation
period;

[[Page 15980]]

Weather parameters (e.g., wind speed, percent cloud cover,
visibility);
Water conditions (e.g., sea state, tide state);
Species, numbers, and, if possible, sex and age class of
marine mammals;
Description of any observable marine mammal behavior
patterns, including bearing and direction of travel and distance from
pile driving activity;
Distance from pile driving activities to marine mammals
and distance from the marine mammals to the observation point;
Description of implementation of mitigation measures
(e.g., shutdown or delay).
Locations of all marine mammal observations; and
Other human activity in the area.
The Navy will note in behavioral observations, to the extent
practicable, if an animal has remained in the area during construction
activities. Therefore, it may be possible to identify if the same
animal or different individuals are being exposed.

Acoustic Monitoring

The Navy will conduct hydroacoustic monitoring for a subset of
impact-driven steel piles for projects including more than three piles
where a bubble curtain is used. The USFWS has imposed requirements
relating to impact driving of steel piles, including restrictions on
unattenuated driving of such piles, as a result of concern regarding
impacts to the ESA-listed marbled murrelet. If USFWS allows the Navy to
conduct minimal driving of steel piles without the use of the bubble
curtain, baseline sound measurements of steel pile driving will occur
prior to the implementation of noise attenuation to evaluate the
performance of the device. Impact pile driving without noise
attenuation will be limited to the number of piles necessary to obtain
an adequate sample size for each project.

Marine Mammal Surveys

Subject to funding availability, the Navy will continue pinniped
haul-out survey counts at specific installations. Biologists conduct
counts of seals and sea lions at NBK Bremerton, Bangor, Manchester, and
NS Everett. Counts are conducted several times per month, depending on
the installation. All animals are identified to species where possible.
This information aids in determination of seasonal use of each site and
trends in the number of animals.

Reporting

The Navy will submit a draft annual report to NMFS within 90 days
of the completion of each year's monitoring effort. The report will
include marine mammal observations pre-activity, during-activity, and
post-activity during pile driving days, and will also provide
descriptions of any behavioral responses to construction activities by
marine mammals and a complete description of all mitigation shutdowns
and the results of those actions and an extrapolated total take
estimate based on the number of marine mammals observed during the
course of construction. A final report must be submitted within 30 days
following resolution of comments on the draft report. The Navy will
also submit a comprehensive summary report covering all activities
conducted under the incidental take regulations.

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' by mortality, serious injury, and Level A or Level B
harassment, we consider other factors, such as the likely nature of any
behavioral responses (e.g., intensity, duration), the context of any
such responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality).
Pile driving activities associated with the maintenance projects
have the potential to disturb or displace marine mammals. Specifically,
the specified activities may result in take, in the form of Level B
harassment (behavioral disturbance) only (for all species other than
the harbor seal) from underwater sounds generated from pile driving.
Potential takes could occur if individual marine mammals are present in
the ensonified zone when pile driving is happening.
No serious injury or mortality would be expected even in the
absence of the planned mitigation measures. For all species other than
the harbor seal, no Level A harassment is anticipated given the nature
of the activities, i.e., much of the anticipated activity would involve
vibratory driving and/or installation of small-diameter, non-steel
piles, and measures designed to minimize the possibility of injury. The
potential for injury is small for cetaceans and sea lions, and is
expected to be essentially eliminated through implementation of the
planned mitigation measures--use of the bubble curtain for larger steel
piles at most installations, soft start (for impact driving), and
shutdown zones. Impact driving, as compared with vibratory driving, has
source characteristics (short, sharp pulses with higher peak levels and
much sharper rise time to reach those peaks) that are potentially
injurious or more likely to produce severe behavioral reactions. Given
sufficient notice through use of soft start, marine mammals are
expected to move away from a sound source that is annoying prior to its
becoming potentially injurious or resulting in more severe behavioral
reactions. Environmental conditions in inland waters are expected to
generally be good, with calm sea states, and we expect conditions would
allow a high marine mammal detection capability, enabling a high rate
of success in implementation of shutdowns to avoid injury.
As described previously, there are multiple species that should be
considered rare in the project areas and for which we would authorize
only nominal and precautionary take of a single group for a minimal
period of time (two days). Therefore, we do not expect meaningful
impacts to these species (i.e., humpback whale, gray whale, minke
whale, transient and resident killer whales, and northern elephant
seal) and find that the total marine mammal take from each of the
specified activities will have a negligible impact on these marine
mammal species.
For remaining species, we discuss the likely effects of the
specified activities in greater detail. Effects on individuals that are
taken by Level B harassment, on the basis of reports in the literature
as well as monitoring from other similar activities, will likely be
limited to

[[Page 15981]]

reactions such as increased swimming speeds, increased surfacing time,
or decreased foraging (if such activity were occurring) (e.g., Thorson
and Reyff, 2006; HDR, Inc., 2012; Lerma, 2014). Most likely,
individuals will simply move away from the sound source and be
temporarily displaced from the areas of pile driving, although even
this reaction has been observed primarily only in association with
impact pile driving. The pile driving activities analyzed here are
similar to, or less impactful than, numerous other construction
activities conducted in San Diego Bay, San Francisco Bay, and in the
Puget Sound region, which have taken place with no known long-term
adverse consequences from Level B harassment.
The Navy has conducted multi-year activities potentially affecting
marine mammals, and typically involving greater levels of activity than
is contemplated here in various locations such as San Diego Bay and
some of the installations considered herein (NBK Bangor and NBK
Bremerton). Reporting from these activities has similarly shown no
apparently consequential behavioral reactions or long-term effects on
marine mammal populations (Lerma, 2014; Navy, 2016). Repeated exposures
of individuals to relatively low levels of sound outside of preferred
habitat areas are unlikely to significantly disrupt critical behaviors.
Thus, even repeated Level B harassment of some small subset of the
overall stock is unlikely to result in any significant realized
decrease in viability for the affected individuals, and thus would not
result in any adverse impact to the stock as a whole. Level B
harassment will be reduced to the level of least practicable adverse
impact through use of mitigation measures described herein and, if
sound produced by project activities is sufficiently disturbing,
animals are likely to simply avoid the area while the activity is
occurring. While vibratory driving associated with some project
components may produce sound at distances of many kilometers from the
pile driving site, thus intruding on higher-quality habitat, the
project sites themselves and the majority of sound fields produced by
the specified activities are within industrialized areas. Therefore, we
expect that animals annoyed by project sound would simply avoid the
area and use more-preferred habitats.
In addition to the expected effects resulting from authorized Level
B harassment, we anticipate that harbor seals may sustain some limited
Level A harassment in the form of auditory injury at two locations (NBK
Bangor and NS Everett), assuming they remain within a given distance of
the pile driving activity for the full number of pile strikes. However,
seals in these locations that experience PTS would likely only receive
slight PTS, i.e., minor degradation of hearing capabilities within
regions of hearing that align most completely with the energy produced
by pile driving (the low-frequency region below 2 kHz), not severe
hearing impairment or impairment in the regions of greatest hearing
sensitivity. If hearing impairment occurs, it is most likely that the
affected animal would lose a few decibels in its hearing sensitivity,
which in most cases is not likely to meaningfully affect its ability to
forage and communicate with conspecifics. As described above, we expect
that marine mammals would be likely to move away from a sound source
that represents an aversive stimulus, especially at levels that would
be expected to result in PTS, given sufficient notice through use of
soft start.
In summary, this negligible impact analysis is founded on the
following factors: (1) The possibility of serious injury or mortality
may reasonably be considered discountable; (2) as a result of the
nature of the activity in concert with the planned mitigation
requirements, injury is not anticipated for any species other than the
harbor seal; (3) the anticipated incidents of Level B harassment
consist of, at worst, temporary modifications in behavior; (4) the
additional impact of PTS of a slight degree to few individual harbor
seals at two locations is not anticipated to increase individual
impacts to a point where any population-level impacts might be
expected; (5) the absence of any significant habitat within the
industrialized project areas, including known areas or features of
special significance for foraging or reproduction; and (6) the presumed
efficacy of the planned mitigation measures in reducing the effects of
the specified activity to the level of least practicable adverse
impact.
In addition, although affected humpback whales may be from DPSs
that are listed under the ESA, and southern resident killer whales are
depleted under the MMPA as well as listed as endangered under the ESA,
it is unlikely that minor noise effects in a small, localized area of
sub-optimal habitat would have any effect on the stocks' ability to
recover. In combination, we believe that these factors, as well as the
available body of evidence from other similar activities, demonstrate
that the potential effects of the specified activities will have only
minor, short-term effects on individuals. The specified activities are
not expected to impact rates of recruitment or survival and will
therefore not result in population-level impacts.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the planned monitoring and
mitigation measures, we find that the total marine mammal take from the
Navy's maintenance construction activities will have a negligible
impact on the affected marine mammal species or stocks.

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under Section 101(a)(5)(A) of the MMPA for specified
activities. The MMPA does not define small numbers and so, in practice,
where estimated numbers are available, NMFS compares the number of
individuals taken to the most appropriate estimation of abundance of
the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals.
Additionally, other qualitative factors may be considered in the
analysis, such as the temporal or spatial scale of the activities.
Please see Table 9 for information relating to this small numbers
analysis. We would authorize incidental take of 12 marine mammal
stocks. The total amount of taking that could be authorized under these
regulations is less than one percent for five of these, less than five
percent for an additional two stocks, and less than ten percent for
another stock, all of which we consider relatively small percentages
and we find are small numbers of marine mammals relative to the
estimated overall population abundances for those stocks.
For the southern resident killer whale (in addition to the humpback
whale, gray whale, minke whale, transient killer whale, and northern
elephant seal), we would authorize take resulting from a brief exposure
of one group of the stock. We believe that a single incident of take of
one group of any of these species represents take of small numbers for
that species.
For the two affected stocks of harbor seal (Hood Canal and Northern
Inland Waters), no recent abundance estimate is available. The most
recent abundance estimates for harbor seals in Washington inland waters
are from 1999, and it is generally believed that harbor seal
populations have increased significantly during the intervening years
(e.g., Mapes, 2013). However, we anticipate

[[Page 15982]]

that takes estimated to occur for harbor seals are likely to occur only
within some portion of the relevant populations, rather than to animals
from the stock as a whole. For example, takes anticipated to occur at
NBK Bangor or at NS Everett would be expected to accrue to the same
individual seals that routinely occur on haul-outs at these locations,
rather than occurring to new seals on each construction day. Similarly,
at Zelatched Point in Hood Canal many known haul-outs are at locations
elsewhere in Hood Canal and, although a density estimate rather than
haul-out count is used to inform the exposure estimate for Zelatched
Point, we expect that exposed individuals would comprise some limited
portion of the overall stock abundance. In summary, harbor seals taken
as a result of the specified activities at each of the six
installations are expected to comprise only a limited portion of
individuals comprising the overall relevant stock abundance. Therefore,
we find that small numbers of marine mammals will be taken relative to
the population size of both the Hood Canal and Northern Inland Waters
stocks of harbor seal.
The estimated taking for harbor porpoise comprises greater than
one-third of the best available stock abundance. However, due to the
nature of the specified activity--construction activities occurring at
six specific locations, rather than a mobile activity occurring
throughout the stock range--the available information shows that only a
portion of the stock would likely be impacted. Recent aerial surveys
that inform the current abundance estimate for harbor porpoise involved
effort broken down by region and subregion. According to the data
available as a result of these surveys, the vast majority of harbor
porpoise abundance occurs in the ``northern waters'' region, including
the San Juan Islands and Strait of Juan de Fuca, where no Navy
construction activity is planned to occur. The six installations
considered here occur within the Hood Canal, North Puget Sound, and
South Puget Sound regions, which contain approximately 24 percent of
stock-wide harbor porpoise abundance (Jefferson et al., 2016).
Therefore, we assume that affected individuals would most likely be
from the 24 percent of the stock expected to occur in these regions.
This figure itself may be an overestimate, as Navy facilities are
located within only three of seven subregions within the North and
South Puget Sound regions (i.e., East Whidbey, Bainbridge, and Vashon).
However, at this finer scale, it is possible that harbor porpoise
individuals transit across subregions. In consideration of this
conservative scenario, i.e., that 24 percent of the stock abundance is
taken, we find that small numbers of marine mammals will be taken
relative to the population size of the Washington inland waters stock
of harbor porpoise.
Based on the analysis contained herein of the activity (including
the planned mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the population sizes of the affected species
or stocks.

Impact on Availability of Affected Species for Taking for Subsistence
Uses

There are no relevant subsistence uses of marine mammals implicated
by these actions. Therefore, we have determined that the total taking
of affected species or stocks will not have an unmitigable adverse
impact on the availability of such species or stocks for taking for
subsistence purposes.

Adaptive Management

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

Endangered Species Act (ESA)

The southern resident killer whale, as well as multiple DPSs of
humpback whale, are listed under the ESA (see Table 3). The
authorization of incidental take pursuant to the Navy's specified
activity would not affect any designated critical habitat. OPR
initiated consultation with NMFS's West Coast Regional Office (WCRO)
under section 7 of the ESA on the promulgation of five-year regulations
and the subsequent issuance of LOAs to the Navy under section
101(a)(5)(A) of the MMPA. On April 5, 2019, WCRO issued a final
Biological Opinion concluding that OPR's action will not jeopardize the
continued existence of any ESA-listed species.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the action qualifies to be categorically excluded from further
NEPA review.

Classification

Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. Navy is the sole entity that would be subject to the
requirements of these regulations, and the U.S. Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received regarding this
certification. As a result, a regulatory flexibility analysis is not
required and none has been prepared.

[[Page 15983]]

Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. However, this rule does
not contain a collection-of-information requirement subject to the
provisions of the PRA because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 218

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

Dated: April 10, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

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

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

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

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Add subpart C to read as follows:
Subpart C--Taking Marine Mammals Incidental to U.S. Navy Marine
Structure Maintenance and Pile Replacement in Washington
Sec.
218.20 Specified activity and specified geographical region.
218.21 Effective dates.
218.22 Permissible methods of taking.
218.23 Prohibitions.
218.24 Mitigation requirements.
218.25 Requirements for monitoring and reporting.
218.26 Letters of Authorization.
218.27 Renewals and modifications of Letters of Authorization.
218.28-218.29 [Reserved]

Subpart C--Taking Marine Mammals Incidental to U.S. Navy Marine
Structure Maintenance and Pile Replacement in Washington

Sec. 218.20 Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the U.S. Navy (Navy)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
maintenance construction activities, as defined in a Letter of
Authorization (LOA).
(b) The taking of marine mammals by the Navy may be authorized in a
LOA only if it occurs within Washington inland waters in the vicinity
of one of the following six naval installations: Naval Base Kitsap
Bangor, Zelatched Point, Naval Base Kitsap Bremerton, Naval Base Kitsap
Keyport, Naval Base Kitsap Manchester, and Naval Station Everett.

Sec. 218.21 Effective dates.

Regulations in this subpart are effective from May 17, 2019 through
May 17, 2024.

Sec. 218.22 Permissible methods of taking.

Under LOAs issued pursuant to Sec. Sec. 216.106 of this chapter
and 218.26, the Holder of the LOA (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 218.20(b) by Level A or Level B harassment
associated with maintenance construction activities, provided the
activity is in compliance with all terms, conditions, and requirements
of the regulations in this subpart and the appropriate LOA.

Sec. 218.23 Prohibitions.

Notwithstanding takings contemplated in Sec. 218.22 and authorized
by a LOA issued under Sec. Sec. 216.106 of this chapter and 218.26, no
person in connection with the activities described in Sec. 218.20 may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 218.26;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner
other than as specified;
(d) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in an unmitigable adverse impact on the species or
stock of such marine mammal for taking for subsistence uses.

Sec. 218.24 Mitigation requirements.

When conducting the activities identified in Sec. 218.20(a), the
mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and 218.26 must be implemented. These
mitigation measures shall include but are not limited to:
(a) General conditions. (1) A copy of any issued LOA must be in the
possession of the Navy, its designees, and work crew personnel
operating under the authority of the issued LOA; and
(2) The Navy shall conduct briefings for construction supervisors
and crews, the monitoring team, and Navy staff prior to the start of
all pile driving activity, and when new personnel join the work, in
order to explain responsibilities, communication procedures, the marine
mammal monitoring protocol, and operational procedures.
(b) Shutdown zones. (1) For all pile driving activity, the Navy
shall implement a minimum shutdown zone of a 10 m radius around the
pile. If a marine mammal comes within or approaches the shutdown zone,
such operations shall cease;
(2) For all pile driving activity, the Navy shall implement
shutdown zones with radial distances as identified in any LOA issued
under Sec. Sec. 216.106 of this chapter and 218.26. If a marine mammal
comes within or approaches the shutdown zone, such operations shall
cease;
(3) For all pile driving activity, the Navy shall designate
monitoring zones with radial distances as identified in any LOA issued
under Sec. Sec. 216.106 of this chapter and 218.26. Anticipated
observable zones within the designated monitoring zones shall be
identified in annual Marine Mammal Monitoring Plans, subject to
approval by NMFS. If any cetacean is observed outside the shutdown zone
identified pursuant to paragraphs (b)(1) and (2) of this section, but
within the designated monitoring zone, such operations shall cease.
(c) Shutdown protocols. (1) The Navy shall deploy marine mammal
observers as indicated in annual Marine Mammal Monitoring Plans, which
shall be subject to approval by NMFS, and as described in Sec. 218.25.
(2) For all pile driving activities, a minimum of one observer
shall be stationed at the active pile driving rig or in reasonable
proximity in order to monitor the shutdown zone.
(3) Prior to the start of pile driving on any day, the Navy shall
take measures to ensure that southern resident killer whales are not
located within the vicinity of the project area, including, but not
limited to, contacting and/or reviewing the latest sightings data from
the Orca Network and/or Center for Whale Research, including passive
acoustic detections, to determine the location of the nearest marine
mammal sightings.

[[Page 15984]]

(4) Monitoring shall take place from fifteen minutes prior to
initiation of pile driving activity through thirty minutes post-
completion of pile driving activity. Pre-activity monitoring shall be
conducted for fifteen minutes to ensure that the shutdown zone is clear
of marine mammals, and pile driving may commence only if observers have
declared the shutdown zone clear of marine mammals during this period.
In the event of a delay or shutdown of activity resulting from marine
mammals in the shutdown zone, the marine mammals shall be allowed to
remain in the shutdown zone (i.e., must leave of their own volition)
and their behavior shall be monitored and documented. Monitoring shall
occur throughout the time required to drive a pile. A determination
that the shutdown zone is clear cannot be made unless the observer(s)
have good visibility of the shutdown zone during the entire fifteen-
minute observation period (i.e., the entire shutdown zone must be
visible to the naked eye and unobscured by dark, rain, fog, poor
lighting conditions, etc.).
(5) If a marine mammal approaches or enters the shutdown zone, the
Navy shall halt all pile driving activities at that location. If pile
driving is halted or delayed due to the presence of a marine mammal,
the activity may not commence or resume until either the animal has
voluntarily left and been visually confirmed beyond the shutdown zone
or fifteen minutes have passed without re-detection of the animal.
(6) If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
takes are met, is observed approaching or within the monitoring zone,
the Navy must halt pile driving activities immediately using delay and
shutdown procedures. Activities must not resume until the animal has
been confirmed to have left the area or the fifteen-minute observation
period has elapsed.
(7) Monitoring shall be conducted by trained observers, who shall
have no other assigned tasks during monitoring periods. Trained
observers shall be placed at the best vantage point(s) practicable to
monitor for marine mammals and implement shutdown or delay procedures
when applicable through communication with the equipment operator. The
Navy shall adhere to the following additional observer qualifications:
(i) Independent observers (i.e., not construction personnel) are
required.
(ii) At least one observer must have prior experience working as an
observer.
(iii) Other observers may substitute education (degree in
biological science or related field) or training for experience.
(iv) Where a team of three or more observers are required, one
observer shall be designated as lead observer or monitoring
coordinator. The lead observer must have prior experience working as an
observer.
(d) Soft start. The Navy shall use soft start techniques for impact
pile driving. Soft start for impact drivers requires contractors to
provide an initial set of three strikes at reduced energy, followed by
a thirty-second waiting period, then two subsequent reduced energy
three-strike sets. Soft start shall be implemented at the start of each
day's impact pile driving and at any time following cessation of impact
pile driving for a period of thirty minutes or longer.
(e) Sound attenuation. The Navy shall employ a bubble curtain (or
other sound attenuation device with proven typical performance of at
least 8 decibels effective attenuation) during impact pile driving of
steel piles greater than 14 inches diameter in water depths greater
than 2 feet, except at Naval Base Kitsap Bremerton and Naval Base
Kitsap Keyport. The Navy shall assess the potential for the use of
bubble curtains at Keyport on a project-by-project basis. In addition,
the Navy shall implement the following performance standards:
(1) The bubble curtain must distribute air bubbles around 100
percent of the piling perimeter for the full depth of the water column.
(2) The lowest bubble ring shall be in contact with the mudline for
the full circumference of the ring, and 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.
(3) The Navy shall require that construction contractors train
personnel in the proper balancing of air flow to the bubblers, and
shall require that construction contractors submit an inspection/
performance report for approval by the Navy within 72 hours following
the performance test. Corrections to the attenuation device to meet the
performance standards shall occur prior to impact driving.

Sec. 218.25 Requirements for monitoring and reporting.

(a) Not later than March 1 of each year, the Navy shall develop and
submit for NMFS's approval an installation-specific Marine Mammal
Monitoring Plan for each year's anticipated work. Final monitoring
plans shall be prepared and submitted to NMFS within 30 days following
receipt of comments on the draft plans from NMFS.
(b) During each in-water work period, the Navy shall update NMFS
every two months on the progress of ongoing projects.
(c) Trained observers shall receive a general environmental
awareness briefing conducted by Navy staff. At a minimum, training
shall include identification of the marine mammals that may occur in
the project vicinity and relevant mitigation and monitoring
requirements. All observers shall have no other construction-related
tasks while conducting monitoring.
(d) For shutdown zone monitoring, the Navy shall report on
implementation of shutdown or delay procedures, including whether the
procedures were not implemented and why (when relevant).
(e) The Navy shall deploy additional observers to monitor
disturbance zones according to the minimum requirements defined in
annual Marine Mammal Monitoring Plans, subject to approval by NMFS.
These observers shall collect sighting data and behavioral responses to
pile driving for marine mammal species observed in the region of
activity during the period of activity, and shall communicate with the
shutdown zone observer as appropriate with regard to the presence of
marine mammals. All observers shall be trained in identification and
reporting of marine mammal behaviors.
(f) The Navy must conduct hydroacoustic monitoring for a subset of
impact-driven steel piles for projects that include more than three
such piles. When this requirement for monitoring of impact-driven steel
piles is triggered, the Navy must also conduct hydroacoustic monitoring
of a subset of impact-driven plastic piles (if applicable).
(g) The Navy must submit annual summary, final, and comprehensive
summary reports as described in this paragraph (g):
(1) Navy shall submit an annual summary report to NMFS not later
than 90 days following the end of construction for that year. Navy
shall provide a final report within 30 days following resolution of
comments on the draft report. These reports shall contain, at minimum,
the following:
(i) Date and time that monitored activity begins or ends;
(ii) Construction activities occurring during each observation
period;
(iii) Weather parameters (e.g., wind speed, percent cloud cover,
visibility);

[[Page 15985]]

(iv) Water conditions (e.g., sea state, tide state);
(v) Species, numbers, and, if possible, sex and age class of marine
mammals;
(vi) Description of any observable marine mammal behavior patterns,
including bearing and direction of travel and distance from pile
driving activity;
(vii) Distance from pile driving activities to marine mammals and
distance from the marine mammals to the observation point;
(viii) Description of implementation of mitigation measures (e.g.,
shutdown or delay);
(ix) Locations of all marine mammal observations; and
(x) Other human activity in the area.
(2) Navy shall submit a comprehensive summary report to NMFS not
later than ninety days following the conclusion of marine mammal
monitoring efforts described in this subpart.
(h) The Navy must submit reports of stranded, injured, or dead
marine mammals as described in this paragraph (h):
(1) In the event that a live marine mammal is found stranded,
whether on shore or in or on any structure or vessel, the following
steps shall be taken:
(i) Project personnel who discover the marine mammal shall
immediately notify the most appropriate onsite personnel with relevant
expertise (e.g., marine mammal observers) as well as the Navy (if non-
Navy project personnel initially discover the animal).
(ii) The Navy shall then immediately notify the West Coast Regional
Stranding Coordinator, NMFS, and, in consultation with the Stranding
Coordinator, shall immediately notify the most appropriate qualified
individual (i.e., biologist or veterinarian) to respond to the event.
(iii) In the interim, or in the event that no qualified individual
other than onsite marine mammal observers is available to respond to
the event, the Navy shall manage the event response and shall take
action to prevent any further deterioration of the animal's condition,
to the extent possible. Appropriate action may be specific to the
event. At minimum, the Navy should provide shade for the animal (if
possible), shall not move the animal or cause the animal to move, and
shall suspend project activity until the situation is resolved.
(iv) The Navy shall report the incident to the Office of Protected
Resources (OPR), NMFS, within 48 hours after discovery.
(2) In the unanticipated event that the activity defined in Sec.
218.20 clearly causes the take of at least one marine mammal in a
prohibited manner, the Navy shall immediately cease such activity and
report the incident to OPR and the West Coast Regional Stranding
Coordinator, NMFS. Activities shall not resume until NMFS is able to
review the circumstances of the prohibited take. NMFS will work with
the Navy to determine what measures are necessary to minimize the
likelihood of further prohibited take and ensure MMPA compliance. The
Navy may not resume their activities until notified by NMFS. The report
must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility);
(iv) Description of all marine mammal observations in the 24 hours
preceding the incident;
(v) Species identification or description of the animal(s)
involved;
(vi) Fate of the animal(s); and
(vii) Photographs or video footage of the animal(s). Photographs
may be taken once the animal(s) have been moved from the waterfront
area.
(3) In the event that the Navy discovers an injured or dead marine
mammal and determines that the cause of the injury or death is unknown
and the death is relatively recent (e.g., in less than a moderate state
of decomposition), the Navy shall immediately report the incident to
OPR and the West Coast Regional Stranding Coordinator, NMFS. The report
must include the information identified in paragraph (h)(2) of this
section. Activities may continue while NMFS reviews the circumstances
of the incident. NMFS will work with the Navy to determine whether
additional mitigation measures or modifications to the activities are
appropriate.
(4) In the event that the Navy discovers an injured or dead marine
mammal and determines that the injury or death is not associated with
or related to the activities defined in Sec. 218.20 (e.g., previously
wounded animal, carcass with moderate to advanced decomposition,
scavenger damage), Navy shall report the incident to OPR and the West
Coast Regional Stranding Coordinator, NMFS, within 24 hours of the
discovery. The Navy shall provide photographs or video footage or other
documentation of the stranded animal sighting to NMFS. Photographs may
be taken once the animal has been moved from the waterfront area.

Sec. 218.26 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to the regulations
in this subpart, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of the regulations in
this subpart.
(c) If an LOA expires prior to the expiration date of the
regulations in this subpart, the Navy may apply for and obtain a
renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Navy must
apply for and obtain a modification of the LOA as described in Sec.
218.27.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under the regulations in this subpart.
(g) Notice of issuance or denial of an LOA shall be published in
the Federal Register within thirty days of a determination.

Sec. 218.27 Renewals and modifications of Letters of Authorization.

(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
218.26 for the activity identified in Sec. 218.20(a) shall be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for the regulations in this subpart
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under the regulations in this
subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations in

[[Page 15986]]

this subpart or result in no more than a minor change in the total
estimated number of takes (or distribution by species or years), NMFS
may publish a notice of proposed LOA in the Federal Register, including
the associated analysis of the change, and solicit public comment
before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
218.26 for the activity identified in Sec. 218.20(a) may be modified
by NMFS under the following circumstances:
(1) Adaptive management. NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after
consulting with the Navy regarding the practicability of the
modifications) if doing so creates a reasonable likelihood of more
effectively accomplishing the goals of the mitigation and monitoring
set forth in the regulations in this subpart.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from the Navy's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by the regulations in this
subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed LOA in the Federal Register and
solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that
poses a significant risk to the well-being of the species or stocks of
marine mammals specified in LOAs issued pursuant to Sec. Sec. 216.106
of this chapter and 218.26, an LOA may be modified without prior notice
or opportunity for public comment. Notice would be published in the
Federal Register within thirty days of the action.

Sec. Sec. 218.28-218.29 [Reserved]

[FR Doc. 2019-07513 Filed 4-16-19; 8:45 am]
BILLING CODE 3510-22-P

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