Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Portsmouth Naval Shipyard Dry Dock 1 Modification and Expansion, 10545-10550 [2021-03507]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 33 (Monday, February 22, 2021)]
[Notices]
[Pages 10545-10550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03507]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA880]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Portsmouth Naval Shipyard Dry Dock 
1 Modification and Expansion

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

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

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SUMMARY: NMFS received a request from the U.S. Navy (Navy) for the 
renewal of their currently active incidental harassment authorization 
(IHA) to take marine mammals incidental to Portsmouth Naval Shipyard 
Dry Dock 1 modification and expansion in Kittery, Maine. These 
activities are nearly identical to those covered in the current 
authorization. The project has been delayed and a small portion of the 
activities covered in the initial IHA have not been completed. The Navy 
also proposes to drive an additional number of piles for which the 
installation methods are identical and pile types are nearly identical 
to those covered in the initial IHA. Pursuant to the Marine Mammal 
Protection Act, NMFS requested comments on both the proposed IHA and 
the potential for renewing the initial authorization if certain 
requirements were satisfied. The renewal requirements have been 
satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed renewal not 
previously provided during the initial 30-day comment period.

DATES: Comments and information must be received no later than March 6, 
2021.

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

FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected 
Resources, NMFS, (301) 427-8421. Electronic copies of the original 
application, renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of

[[Page 10546]]

such takings are also required. The meaning of key terms such as 
``take,'' ``harassment,'' and ``negligible impact'' can be found in 
section 3 of the MMPA (16 U.S.C. 1362) and the agency's regulations at 
50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time one-year Renewal IHA following notice to the public providing 
an additional 15 days for public comments when (1) up to another year 
of identical or nearly identical, or nearly identical, activities as 
described in the Description of the Specified Activities and 
Anticipated Impacts section of this notice is planned or (2) the 
activities as described in the Description of the Specified Activities 
and Anticipated Impacts section of this notice would not be completed 
by the time the IHA expires and a renewal would allow for completion of 
the activities beyond that described in the Dates and Duration section 
of the notice of proposed IHA for the initial IHA, provided all of the 
following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed IHA renewal effective date (recognizing that the r 
IHA renewal expiration date cannot extend beyond one year from 
expiration of the initial IHA);
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take); 
and
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the issuance of the proposed IHA renewal 
qualifies to be categorically excluded from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA renewal request.

History of Request

    On November 1, 2018, NMFS received a request from the Navy for 
authorization of the taking, by Level B harassment and Level A 
harassment, of marine mammals incidental to the modification and 
expansion of Dry Dock 1 at Portsmouth Naval Shipyard in Kittery, Maine. 
The specified activity is expected to result in the take of five 
species of marine mammals (harbor seals (Phoca vitulina), gray seals 
(Halichoerus grypsus), harp seals (Pagophilus groenlandicus), hooded 
seals (Cystophora cristata), harbor porpoises (Phocoena phocoena)). A 
final version of the application, which we deemed adequate and 
complete, was submitted on March 11, 2019. We published a notice of a 
proposed IHA (referred to hereafter as the proposed initial IHA) and 
request for comments on April 4, 2019 (84 FR 13252). After the public 
comment period, NMFS issued the final IHA on May 16, 2019, effective 
October 1, 2019, through September 30, 2020 (84 FR 24476), hereafter 
referred to as the 2019 IHA. On September 30, 2019, the Navy informed 
NMFS that the project was delayed. None of the work identified in the 
IHA had occurred and no take of any marine mammals had occurred since 
the issuance of the IHA. The Navy requested that NMFS modify the 
effective dates in order to conduct the construction work that was 
previously analyzed and authorized. On December 3, 2019, NMFS re-
issued, with new effective dates, an IHA to the Navy to take marine 
mammals incidental to modification and expansion of at the Portsmouth 
Naval Shipyard Dry Dock 1 in Kittery, Maine (84 FR 67261; December 9, 
2019), effective from March 1, 2020 through February 28, 2021 
(hereafter referred to as the initial IHA).
    On January 21, 2021, NMFS received an application for the renewal 
of the initial IHA. As described in the request for the renewal IHA, 
the activities for which incidental take is requested include a small 
subset of the activities that are covered by the initial authorization 
but will not be completed prior to its expiration, as well as a new 
addition of activity that is nearly identical to that covered in the 
initial authorization. As required, the applicant also provided a 
preliminary monitoring report (available at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities) which confirms that the 
applicant has implemented the required mitigation and monitoring, and 
which also shows that no impacts of a scale or nature not previously 
analyzed or authorized have occurred as a result of the activities 
conducted.

[[Page 10547]]

Description of the Specified Activities and Anticipated Impacts

    The Navy's planned activities include installation of temporary 
dolphin piles for construction of the caisson seat float-in, completion 
of the caisson seat foundation, and construction of a temporary blast 
wall. The Navy planned to install the guide dolphin piles in February 
2021, prior to the expiration of the initial IHA; however, due to 
unforeseen delays, these piles are now scheduled to be installed in 
March 2021. Additionally, the installation of sheet piles to complete 
the caisson seat foundation is scheduled to conclude on February 25, 
2021, although if there are any unanticipated weather or equipment 
delays, this activity might not be completed prior to the expiration of 
the initial IHA. Finally, construction of a temporary blast wall was 
not specifically analyzed in the 2019 IHA, but will involve the 
installation of a comparatively small number (in relation to the 
initial IHA) of similar or smaller size steel sheet and pipe piles 
using installation methods identical to those described in the 2019 
IHA. The location and nature of the activities, including the types of 
equipment planned for use, are nearly identical to those described in 
the initial IHA.
    Similarly, the anticipated impacts are identical in nature (though 
significantly lower in number) to those described in the initial IHA. 
Also, NMFS anticipates the take of only two of the five species of 
marine mammals described in the 2019 IHA (harbor seals and gray seals) 
by Level A harassment and Level B harassment incidental to underwater 
noise resulting from construction associated with the proposed 
activities.
    The following documents are referenced in this notice and include 
important supporting information:
     Reissued 2019 IHA (84 FR 67261; December 9, 2019);
     2019 final IHA (84 FR 24476; May 28, 2019);
     2019 proposed IHA (843 FR 13252; April 4, 2019);
     2019 IHA application, references cited, and previous 
public comments received (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities).

Detailed Description of the Activity

    The Navy proposes to modify and expand Dry Dock 1 at Portsmouth 
Naval Shipyard because dimensional limitations currently impede 
operations and maintenance. To minimize impacts on dry dock operations 
during construction, the overall project is being constructed in 
phases. The first element, construction of a superflood basin, is 
scheduled to occur in six phases; activities associated with first two 
phases, and one activity from Phase 3 (installation of the caisson seat 
float-in) were described and analyzed in the 2019 IHA. Phases 1 and 2, 
planned to be completed under the initial IHA, included site 
reconnaissance, field measurements, contractor submittals and general 
mobilization activities (Phase 1), and construction of the southern 
closure, construction of the caisson seat float-in and foundation, 
Berth 1 and 11 improvements, Dry Dock 1 utility improvements, and 
dredging (Phase 2). Schedule delays precluded installation of the 
caisson seat float-in; therefore, the Navy included this activity in 
the renewal request.
    To construct the caisson seat float-in, the Navy would use 
vibratory pile driving to install six temporary dolphins, comprised of 
twelve, 30-inch (in) diameter steel pipe piles (a reduction in size 
from the 36-in diameter steel pipe piles analyzed for this activity in 
the 2019 IHA).
    To construct the remaining portion of the caisson seat foundation, 
the renewal request includes the installation of twenty 27-in sheet 
piles using a combination of vibratory and impact pile driving, as 
described in the initial IHA. The 2019 IHA analyzed the potential for 
Level A harassment and Level B harassment from installation of twenty 
24-in sheet piles using the identical installation methods; the size of 
the sheet pile included in the renewal request is slightly larger and 
the source levels used to model distances to the Level A harassment and 
Level B harassment isopleths are accordingly slightly higher (see 
Estimated Take section, Table 1). However, although the sheet pile size 
is slightly larger, the number of 27-in sheet piles (20) associated 
with installation of the caisson seat foundation included in the 
renewal request is identical in number to that planned for the caisson 
sear foundation and also a small subset of the total number (320) of 24 
in sheet piles included in the initial IHA.
    Finally, the Navy proposes to construct a temporary blast wall, 
comprised of 15, 30-in steel pipe piles and 70 25-in sheet piles 
installed using vibratory pile driving only. This wall would be located 
within the project area, across the opening of the existing Dry Dock 1 
between Berth 1 and Berth 11A and opposite the caisson seat, described 
in the proposed initial IHA (84 FR 13252; April 4, 2019). For 
comparison, the initial IHA included vibratory installation of 48, 36-
in steel pipe piles and 320 24-in sheet piles. Therefore, the renewal 
request includes nearly identical pile sizes (steel pipe and sheet) and 
identical installation method to those described and included in the 
initial IHA.
    A detailed description of the construction activities for which 
take is proposed here may be found in the Federal Register notice of 
proposed IHA for the 2019 authorization (84 FR 13252; April 4, 2019). 
As stated above, the location and nature of the pile driving 
operations, including the type and size of piles and the methods of 
pile driving, are identical or nearly identical to those analyzed in 
the 2019 IHA. The proposed IHA renewal would be effective from the date 
of issuance to February 27, 2022 (i.e., one year after the expiration 
of the initial IHA), although all construction proposed in the renewal 
request would be completed between March 1, 2021 and March 31, 2021.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice for the proposed IHA for the 2019 authorization 
(84 FR 13252; April 4, 2019). NMFS has reviewed recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and other scientific literature. NMFS has preliminarily determined that 
there is no new information that affects which species or stocks have 
the potential to be affected or the pertinent information in the 
Description of the Marine Mammals in the Area of Specified Activities 
contained in the supporting documents for the 2019 IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Federal Register notices for the 
proposed initial IHA (84 FR 13252; April 4, 2019). NMFS has reviewed 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects our initial analysis 
of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the

[[Page 10548]]

specified activity are found in the Federal Register notices for the 
initial IHA, including the proposed 2019 IHA (84 FR 13252; April 4, 
2019) and final 2019 IHA (84 FR 24476; May 28, 2019). Marine mammal 
occurrence data applicable to this authorization remain unchanged from 
the previously issued IHA. Similarly, the stocks taken, methods of 
estimating take, and types of take remain unchanged from the previously 
issued IHA. As mentioned previously, due to the use of slightly 
different pile sizes, the source levels included in the renewal request 
(Table 1) are nearly identical, rather than identical, to those 
analyzed in the 2019 IHA and included in the initial IHA. In addition, 
the number of construction days and piles proposed in the Renewal 
request (Tables 2 and 3) are fewer than those included in the initial 
IHA. Finally, the proposed maximum ensonified area, or region of 
influence (ROI), is smaller (0.42 square kilometers (km\2\)) than that 
analyzed in the initial IHA (0.85 km\2\) because the completed 
construction (e.g., southern closure wall and majority of the caisson 
seat foundation) created additional barriers to sound produced by 
construction activities.

                Table 1--Summary of In-Water Pile Driving Source Levels (SL) at 10 m From Source
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                                                                                  SPLrms,  dB re
          Pile type and size              Installation  method     SPLpk,  dB re    1 [micro]Pa    SEL, dB  re 1
                                                                    1 [micro]Pa                   [micro]Pa\2\-s
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30-inch steel pipe \1\...............  Vibratory................              NA       167 (175)       167 (175)
27-inch sheet pile \2\...............  Vibratory................              NA       167 (163)       167 (163)
27-inch sheet pile \3\...............  Impact...................       211 (205)       196 (190)       181 (180)
25-inch sheet pile \2\...............  Vibratory................              NA       163 (163)       163 (163)
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SPLpk, dB re 1 [micro]Pa = peak sound pressure level referenced to 1 micropascal; SPLrms = root mean square
  sound pressure level referenced to 1 micropascal; SEL = sound exposure level referenced to 1 micropascal-
  squared-second; values from 2019 IHA in parentheses: \1\ vibratory installation of 36 in steel pile; \2\
  vibratory installation of 24 in sheet pile; \3\ impact installation of 24 in sheet pile.

    Table 2 includes information for both the subset of activities 
using vibratory pile driving the Navy will not complete before the 
current IHA expires (e.g., completion of the caisson seat foundation 
and installation of the guide dolphins for the caisson seat float-in 
structure) as well as the newly proposed activity, construction of a 
temporary blast wall.

                                       Table 2--Distances and Areas of Harassment Zones, and Associated Construction Activities for Vibratory Pile Driving
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                                                                                                Level A harassment injury  (PTS onset)                          Behavior disturbance Level B
                                                                            ------------------------------------------------------------------------------               harassment
              Section                 Pile size (inch (in))    Total pile       High-frequency cetaceans 173 dB                                           --------------------------------------
                                            and count         driving days    SELcum\1\ threshold radial distance/      Phocid pinnipeds 201 dB SELcum         All marine mammals 120 dB RMS
                                                                                              area                      threshold radial distance/area        threshold radial distance/ROI *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Caisson seat foundation............  27 in steel sheet (20)               2  25.4 m/0.001746 km\2\................  10.4 m/0.000338 km\2\................  13,594 m/0.42 km\2\.
Guide dolphins for caisson float-in  30 in steel pipe (12).              12  4.8 m/0.000072 km\2\.................  2.0 m/0.000012 km\2\.................  13,594 m/0.42 km\2\.
Temporary blast wall...............  30 in steel pipe (15).               8  7.7 m/0.000185 km\2\.................  3.2 m/0.000032 km\2\.................  13,594 m/0.42 km\2\.
Temporary blast wall...............  25 in steel sheet (70)               7  22.5 m/0.001378 km\2\................  9.2 m/0.000264 km\2\.................  13,594 m/0.42 km\2\.
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* Region of influence (ROI); potentially ensonified area capped due to landmass and existing Dry Dock 1 structural interception of noise.
\1\ SELcum = cumulative sound exposure level.

    Table 3 provides information for impact driving of sheet piles 
required to complete construction of the caisson seat foundation.

                                        Table 3--Distances and Areas of Harassment Zones, and Associated Construction Activities for Impact Pile Driving
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                                                                                                Level A harassment injury  (PTS onset)                          Behavior disturbance Level B
                                      Pile size (inch(in))     Total pile   --------------------------------------------------------------------------------------------------------------------
              Section                       and count         driving days      High-frequency cetaceans 155 dB        Phocid pinnipeds (seals) 185 dB         All marine mammals 160 dB RMS
                                                                                      SELcum\1\ threshold                     SELcum  threshold               threshold radial distance/ROI *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Caisson seat foundation............  27 in steel sheet (20)               2  2,055.5 m/0.42 km\2\.................  923.5 m/0.40 km\2\...................  2,512 m/0.42 km\2\.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* Region of influence (ROI); potentially ensonified area capped due to landmass and existing Dry Dock 1 structural interception of noise.
\1\SELcum = cumulative sound exposure level.

    Takes estimated in the renewal request were zero for three of the 
five species included in the 2019 and initial IHAs (harbor porpoise, 
hooded seal, and harp seal) because the densities for these species 
were zero at the specified

[[Page 10549]]

location during the proposed construction period (March 1, 2021 through 
March 31, 2021). For the other two species, the number of proposed 
takes, which are indicated below in Table 4, are less than those 
authorized in the 2019 IHA (harbor seals: 284 Level A harassment takes, 
776 Level B harassment takes; gray seals: 25 Level A harassment takes, 
35 Level B harassment takes).

         Table 4--Estimated Take Proposed for Renewal and Proportion of Population Potentially Affected
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                                                                                                  Percentage  of
                                Estimated take  Estimated take                     Abundance of        stock
            Species               by Level B      by Level A          Stock            stock        potentially
                                  harassment      harassment                                         affected
----------------------------------------------------------------------------------------------------------------
Harbor seal...................              29               2  W North Atlantic          75,834            0.04
Gray seal.....................               3               0  W North Atlantic          27,131            0.01
----------------------------------------------------------------------------------------------------------------

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Federal Register notice announcing the issuance of the 
2019 IHA (84 FR 24476; May 28, 2019) and initial IHA (84 FR 67261; 
December 9, 2019), and the discussion of the least practicable adverse 
impact included in that document remains accurate. The following 
measures are proposed for this renewal.
Proposed Mitigation Requirements
    In summary, mitigation includes implementation of shut down 
procedures if any marine mammal approaches or enters the shutdown zone 
for pile driving (10 meters (m) (33 feet (ft)) for vibratory pile 
driving of steel pipe and sheet piles; 50 m (164 ft) for impact driving 
of steel pipe and sheet piles). For in-water heavy machinery work other 
than pile driving (e.g. standard barges, barge-mounted cranes, 
excavators, etc.), if a marine mammal comes within 10 m, operations 
must cease and vessels must reduce speed to the minimum level required 
to maintain steerage and safe working conditions. Trained observers 
must monitor to implement shutdowns and collect information at each 
active pile driving location (whether vibratory or impact driving of 
steel pipe or sheet piles).
    Pile driving activities may only be conducted during daylight 
hours. If the shutdown zone is obscured by fog or poor lighting 
conditions, pile driving will not be initiated until the entire 
shutdown zone is visible. Work that has been initiated appropriately in 
conditions of good visibility may continue during poor visibility. The 
shutdown zone will be monitored for 30 minutes prior to initiating the 
start of pile driving, during the activity, and for 30 minutes after 
activities have ceased. If pinnipeds are present within the shutdown 
zone prior to pile driving, the start will be delayed until the animals 
leave the shutdown zone of their own volition, or until 15 minutes 
elapse without re-sighting the animal(s).
    Soft start procedures must be implemented at the start of each 
day's impact pile driving and at any time following cessation of impact 
driving for a period of thirty minutes or longer. The Navy must conduct 
an initial set of three strikes from the impact hammer at reduced 
energy, followed by a 30-second waiting period, succeeded by two 
subsequent three strike sets.
Proposed Monitoring Requirements
    The Navy will employ trained protected species observers (PSOs) to 
conduct marine mammal monitoring for its Portsmouth Naval Shipyard 
modification and expansion project. The purposes of marine mammal 
monitoring are to implement mitigation measures and learn more about 
impacts to marine mammals from the Navy's construction activities. The 
PSOs will be located at the best vantage points (primarily on docks and 
piers) to observe and collect data on marine mammals in and around the 
project area. PSOs will monitor all Level A harassment zones and at 
least two-thirds of the Level B harassment zones for 30 minutes before, 
during, and after all pile installation work.
Proposed Reporting Requirements
    The Navy must provide NMFS with a draft monitoring report within 90 
calendar days of the expiration of the IHA, or within conclusion of the 
construction work, whichever comes first. This report must detail the 
monitoring protocol, summarize the data recorded during monitoring, and 
estimate the number of marine mammals that may have been harassed. If 
comments are received from NMFS on the draft report within 30 days, a 
final report shall be submitted to NMFS within 30 days thereafter. If 
no comments are received from NMFS within 30 days after receipt of the 
draft report, the draft report will be considered final.
    In the unanticipated event that the construction activities clearly 
cause the take of a marine mammal in a manner prohibited by this 
Authorization, such as an injury, serious injury, or mortality (Level A 
take), the Navy shall immediately cease all operations and immediately 
report the incident to the NMFS Office of Protected Resources and the 
NMFS Greater Atlantic Coast Region Stranding Coordinator. The report 
must include the following information:
    1. Time, date, and location (latitude and longitude) of the 
incident;
    2. Description of the incident;
    3. Status of all sound sources used in the 24 hours preceding the 
incident;
    4. Environmental conditions (wind speed, wind direction, sea state, 
cloud cover, visibility, water depth);
    5. Description of the marine mammal observations in the 24 hours 
preceding the incident;
    6. Species identification or description of the animal(s) involved;
    7. The fate of the animal(s); and
    8. Photographs or video footage of the animal(s), if equipment is 
available.
    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 is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. The Navy may not resume 
their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that the Navy discovers an injured or dead marine 
mammal, and the marine mammal observer determines that the cause of 
injury or death is unknown and the death is relatively recent (less 
than a moderate state of decomposition), the Navy will immediately 
report the incident to the NMFS Office of Protected Resources, and the 
NMFS Greater Atlantic Coast Region Stranding Coordinator. The report 
must include the same information identified above. Activities may 
continue while NMFS reviews the circumstances of the incident. NMFS 
will work with the Navy to determine

[[Page 10550]]

whether modifications in the activities are appropriate.
    In the event that the Navy discovers an injured or dead marine 
mammal, and the marine mammal observer determines that the injury or 
death is not associated with or related to the activities authorized in 
the IHA (previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the Navy shall report the incident 
to the NMFS Office of Protected Resources, and the NMFS Greater 
Atlantic Coast Region Stranding Coordinator within 24 hours of the 
discovery. The Navy shall provide photographs or video footage (if 
available) or other documentation of the stranded animal(s) to NMFS 
Office of Protected Resources, and the NMFS Greater Atlantic Coast 
Region Stranding Coordinator. The Navy may continue its operations 
under such a case.

Public Comments

    As noted previously, NMFS published a notice of a proposed 2019 IHA 
(84 FR 13252; April 4, 2019) and solicited public comments on both our 
proposal to issue the 2019 IHA for the Navy's construction activities 
and on the potential for an IHA renewal, should certain requirements be 
met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (84 FR 24476; May 28, 2019). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
renewal of the initial IHA.
    Comment: The Commission recommends that NMFS refrain from 
implementing its proposed renewal process and instead use abbreviated 
Federal Register notices and reference existing documents to streamline 
the IHA process. If NMFS adopts the proposed renewal process, the 
Commission recommends that NMFS provide the Commission and the public a 
legal analysis supporting its conclusion that the process is consistent 
with section 101(a)(5)(D) of the MMPA.
    Response: In prior responses to comments about IHA renewals (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342; August 28, 2020), NMFS 
has explained how the renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
renewal process.

Preliminary Determinations

    The construction activities proposed by the Navy are identical or 
nearly identical to those analyzed in the initial IHA, as are the 
method of taking and the effects of the action (though the amount of 
proposed authorized take is notably lower). The potential effects of 
the Navy's activities are limited to Level A harassment and Level B 
harassment in the form of auditory injury and behavioral disturbance. 
In analyzing the effects of the activities in the 2019 IHA, NMSF 
determined that the Navy's activities would have a negligible impact on 
the affected species or stocks and that the authorized take numbers of 
each species or stock were small relative to the relevant stocks (e.g., 
less than one percent of all stocks). The mitigation measures and 
monitoring and reporting requirements as described above are identical 
to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) The required mitigation measures will affect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) the Navy's activities will not have an 
unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and; (5) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species. No incidental take of ESA-listed 
marine mammal species is expected to result from this activity, and 
none would be authorized. Therefore, NMFS has determined that 
consultation under section 7 of the ESA is not required for this 
action.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a IHA renewal to the Navy for conducting in-water construction 
activities associated with the modification and expansion of Portsmouth 
Naval Shipyard Dry Dock 1 from the date of issuance through February 
27, 2022, provided the previously described mitigation, monitoring, and 
reporting requirements are incorporated. A draft of the proposed and 
final 2019 IHA can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. We request comment on our analyses, the proposed Renewal 
IHA, and any other aspect of this notice. Please include with your 
comments any supporting data or literature citations to help inform our 
final decision on the request for MMPA authorization.

    Dated: February 17, 2021.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-03507 Filed 2-19-21; 8:45 am]
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