Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Portsmouth Naval Shipyard Dry Dock 1 Modification and Expansion, 14598-14605 [2021-05515]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 50 (Wednesday, March 17, 2021)]
[Notices]
[Pages 14598-14605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05515]



[[Page 14598]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA937]


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; issuance of a renewal incidental harassment 
authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued a renewal incidental harassment authorization 
(IHA) to the U.S. Navy (Navy) to take small numbers of marine mammals, 
by harassment, incidental to Portsmouth Naval Shipyard Dry Dock 1 
modification and expansion in Kittery, Maine.

DATES: This authorization is effective from the date of issuance 
through February 27, 2022.

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

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 taking of five 
species of marine mammals (harbor seals (Phoca vitulina), gray seals 
(Halichoerus grypsus), harp seals (Pagophilus groenlandicus), hooded 
seals (Cystophora cristata), and harbor porpoises (Phocoena phocoena)). 
A final version of the application, which NMFS deemed adequate and 
complete, was submitted on March 11, 2019. NMFS 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

[[Page 14599]]

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 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 
additional 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.

Description of the Specified Activities and Anticipated Impacts

    The Navy's authorized 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 during 
March and April, 2021, under the renewal IHA. Additionally, the 
installation of sheet piles to complete the caisson seat foundation was 
scheduled to conclude on February 25, 2021, although unanticipated 
delays prevented the completion of this activity 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 to those described in the initial IHA.
    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 will 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 wall, 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, this construction activity will be completed under the 
renewal IHA.
    To construct the caisson seat float-in, the Navy will 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 IHA includes the installation of 20, 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 20, 24-in sheet 
piles using the identical installation methods; the size of the sheet 
pile included in this authorization 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 IHA 
is identical in number to that planned for the caisson seat foundation 
and is also a small subset of the total number (320) of 24-in sheet 
piles included in the initial IHA.
    Finally, the Navy will 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 will 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. The renewal IHA includes nearly 
identical pile sizes (steel pipe and sheet) and identical installation 
methods to those described and included in the initial IHA.
    A detailed description of the construction activities for which 
take is authorized 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.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA was published in 
the Federal Register on February 22, 2021 (86 FR 10545). During the 15-
day public comment period, NMFS received comments from the Marine 
Mammal Commission (Commission) and a member of the general public. 
Specific comments and responses are provided below.
    Comment 1: The Commission stated that NMFS has not met its basic 
renewal IHA issuance criteria based, in part, on the fact that the Navy 
did not submit a renewal request at least 60 days prior to the needed 
renewal authorization date.
    Response: NMFS engaged in extensive communication with the Navy 
leading up to the Navy's request for a renewal

[[Page 14600]]

IHA, and so was prepared to process the request despite the fact that 
it was not received at least 60 days prior to the requested issuance 
date. Furthermore, while the Navy indicated when they would prefer to 
have the renewal effective date, they understood that the process 
typically takes 60 days to complete and that it may not be complete by 
that date--so the ``needed renewal IHA effective date'' was the one 
they requested or as soon thereafter as possible.
    Comment 2: The Commission observed that the Navy based its analyses 
of the proposed activities on the assumption that construction would 
occur in the month of March, yet the comment period on the proposed 
renewal IHA did not close until March 6, 2021, thus limiting the number 
of available construction days in March.
    Response: NMFS concurs that the Navy will not be able to complete 
the proposed construction activities in March, and has revised the 
construction timeframe to include the month of April. The number of 
days on which construction will occur remains the same. This change 
does not affect NMFS' analysis or findings.
    Comment 3: The Commission observed that the Navy's request to 
increase the size of sheet piles from 24- to 27-in would increase the 
size of the Level A harassment zone from (1) 13.7 meters (m) to 25.4 m 
for high-frequency (HF) cetaceans and 5.6 m to 10.4 m for phocids 
during vibratory pile driving and (2) 1,763 m to 2,056 m for HF 
cetaceans and 792 m to 924 m for phocids during impact pile driving 
(see Table 6 at 84 FR 24485 and Table 2 at 86 FR 10548). The Commission 
identified that the increase in pile would increase the Level B 
harassment zone from 7.35 kilometers (km) (84 FR 24485) to 13.59 km 
(Table 2; 86 FR 10548) during vibratory pile driving and 1 km (Table 6; 
84 FR 24485) to 2.5 km (Table 3; 86 FR 10548) during impact pile 
driving. In addition, the Commission noted that the harassment zones 
included in the renewal IHA have not been adjusted, despite being 
clipped by land.
    Response: The Commission is correct, the Level A and Level B 
harassment zones have changed as noted, and the changes have been 
considered in the analysis. The clipped Level B harassment zones were 
considered in the renewal proposal and are noted in Table 2.
    Comment 4: The Commission stated that the numbers of Level A 
harassment and Level B harassment takes of harbor seals and gray seals 
have been underestimated and are likely to cause unnecessary delays and 
shutdowns. Specifically, the Commission noted that, although the Navy 
did not conduct monitoring in March or April 2020 (because no 
construction was occurring), a gray seal was observed during only 5 
days of monitoring in March 2018 and 6 to more than 10 individual 
harbor seals were observed routinely in the immediate project area in 
April 2018, and that both species have been observed well within the 
Level A harassment zone of 924 m.
    Response: In consideration of the monitoring data the Commission 
cites, as well as the more recent monitoring data collected by the Navy 
throughout the rest of the year, NMFS has increased the number of 
authorized takes for harbor seals and gray seals in the renewal IHA by 
applying the same methods used in the final initial IHA, which 
considers group size and the maximum number of each species sighted in 
a single day, resulting in the following increases in take: Harbor 
seals (Level A: 2 to 4; Level B: 29 to 124); gray seals (Level A: 0 to 
1; Level B (3 to 31).
    Comment 5: The Commission recommended reevaluating the potential 
for takes of harbor porpoises, harp seals, and hooded seals, which were 
proposed in the renewal as zero, despite non-zero densities in the 
Spring.
    Response: NMFS concurs and has now applied the methods described in 
the initial IHA to the one month of work and included authorization of 
one Level A take and one Level B take for harbor porpoises, one Level B 
take for harp seals, and one Level B take for hooded seals.
    Comment 6: The Commission observed that the mitigation and 
monitoring measures in the proposed renewal IHA do not wholly reflect 
those in the initial IHA.
    Response: NMFS acknowledges this error and has made corrections in 
the renewal IHA.
    Comment 7: The Commission observed that the Navy indicated in its 
preliminary monitoring report for the initial IHA that the presence of 
active construction equipment reduced the Protected Species Observers's 
(PSO) ability to fully monitor the harassment zones from Berth 2 and, 
as a result, the Berth 2 observer location was shifted to a barge in 
September 1, 2020. The Commission stated that, because the extent to 
which the PSO's ability to monitor effectively from May through August 
at Berth 2 is unknown, it is unclear whether the full extents of the 
harassment zones were monitored effectively and, if they were not, the 
degree to which extrapolation was both necessary and made. As such, the 
Commission questioned whether the numbers of reported takes are 
accurate and within the authorized limits.
    Response: NMFS acknowledges the Commission concern and the 
limitations of some of the Navy's monitoring in the months to date, 
however, we disagree with any assertion that the take may have exceeded 
authorized limits. The Navy's preliminary report indicated that, in 
May, the Level A harassment and Level B harassment zones were 
completely monitored during 100 percent of in-water construction 
activities (vibratory pile driving). In June, the only construction 
activity was approximately 6.5 hours (hrs) of vibratory pile driving, 
yet PSOs monitored the project area over 316 hrs over 14 days; despite 
this monitoring effort, no marine mammals were sighted in the project 
area. In July, approximately 750 hrs of monitoring (37.5 hrs of which 
overlapped with vibratory pile driving and drilling activities; no 
impact pile driving occurred in July) occurred over 22 days, during 
which only 6 harbor seals (and no other marine mammals) were observed. 
In August, PSOs monitored the project area for 1,000 hrs over 26 days, 
84.5 hrs of which overlapped with construction activities, and during 
which 27 marine mammals sightings were recorded (25 harbor seals, and 2 
sightings of an individual gray seal). The total number of marine 
mammals observations during the entire project (not limited to periods 
when in-water construction was occurring) was 721 harbor seals (or 658 
unique individuals, excluding re-sightings), 47 gray seals (or 34 
unique individuals, excluding re-sightings), and 1 harbor porpoise. 
There were no Level A harassment takes observed for any species, 167 
Level B harassment takes for harbor seals, 8 Level B harassment takes 
for gray seals, and 1 Level B harassment take of an unidentified seal. 
However, even if every marine mammal observed throughout the entire 
construction project was considered taken Level B harassment, the Navy 
still would not have exceeded their take limit.
    The largest Level A harassment zone for vibratory pile driving and 
drilling, the only construction activities that occurred in May through 
July, was only 56.5 m, and was likely fully observable by the PSOs 
positioned at Berths 2 and 11. Impact pile driving, with the largest 
associated Level A zones (HF: 1,763 m; phocids: 792 m), was not 
conducted until August, during which (as mentioned above) PSOs 
monitored for 1,000 hrs over 26 days, sighting only 27 marine mammals. 
It is unlikely that limitations in visibility experienced by

[[Page 14601]]

the observer at positioned at Berth 2 prevented detection of a number 
of marine mammals that would have surpassed the amount of authorized 
take. In addition, PSOs were only required to monitor two-thirds of the 
Level B harassment zone during all construction activities, an effort 
that was supported by up to three additional PSOs beyond the observer 
located at Berth 2.
    Comment 8: The Commission noted deficiencies in the Navy's 
hydroacoustic monitoring reports (Appendices D and E of the initial IHA 
preliminary monitoring report). Specifically, the Commission observed 
that sound pressure level (SPL) measurements (in decibels (dB) re 1 
micro Pascal ([mu]Pa)) in Appendix D were not reported as root-mean-
square (rms), which is the appropriate metric and applies to means, 
medians, maxima, and minima. In addition, the Commission stated that 
for continuous, non-impulsive sound (e.g., drilling and vibratory pile 
driving), those SPLrms measurements are to be made over given intervals 
(i.e., 1-second intervals) and for impulsive sound (e.g., impact pile 
driving and percussive hammering of a down-the-hole hammer), those 
SPLrms measurements are to be based on single strikes, same as the 
sound exposure level and peak SPL measurements, and a 90-percent energy 
window. The Commission noted that neither Appendix contains all the 
required information.
    Response: NMFS has contacted the Navy and emphasized the importance 
of following IHA requirements concerning hydroacoustic monitoring 
reports. The Appendices A and D referenced by the Commission are part 
of the Navy's preliminary hydroacoustic report for the initial IHA; 
corrections will be made in the final report.
    Comment 9: The Commission recommended that NMFS deny the Navy's 
request to renew its incidental take authorization based on the fact 
that the criteria have not been met and the other deficiencies noted in 
their letter.
    Response: NMFS does not concur with the Commission's assertions, 
and has not adopted their recommendation to deny the renewal.
    The renewal conditions have been met for this renewal proposal. 
First, our response to Comment 2, above, addresses the issue the 
Commission raised regarding the receipt of the application 60 days 
before it is needed. Regarding the activity proposed, as described 
above, it is comprised of a small subset of the work covered in the 
original IHA, with minor changes to the sizes of two types of piles 
(one larger and one smaller), as well as the addition of a temporary 
blast wall (installing piles one inch larger than that analyzed in the 
initial IHA), that do not affect the previous analysis, mitigation or 
monitoring, or take estimates, which are proportionally commensurate to 
the take authorized in the initial IHA, based on the one month of work 
covered. Regarding the preliminary monitoring report, as described in 
our response to Comment 7, the results do not indicate impacts of a 
scale or nature not previously analyzed or authorized. Last, upon 
review of the request for renewal, the status of the affected species 
or stocks, and the preliminary monitoring report, we have determined 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain nearly the same and 
appropriate, and the findings in the initial IHA remain valid. Further, 
the other ``deficiencies'' the Commission references in their letter 
have been addressed in our responses to the comments above.
    Comment: The Commission recommended that NMFS refrain from 
implementing its proposed renewal process unless it is consistent with 
the procedural requirements specified in 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.
    Comment: Overall, the proposed plan by the Navy to modify and 
expand Dry Dock 1 is sufficient, as the plan includes using smaller 
installation pieces to increase efficiency of operations and 
maintenance of the dock. However, a deeper look into the current 
potential impacts on the local marine mammals and their habitat is 
needed. The plan uses mammal occurrence data from 2 years prior, and so 
might not accurately reflect the number of mammals in the area during 
the projected construction period. It also seems that proper 
precautionary actions might not be fully thought out, as work can 
continue in poor visibility situations as long as the work started in 
appropriate conditions, and only requires a break of 15 minutes after 
sighting a mammal within 10 m of the construction area. In order to 
lessen the potential for harassment and takes of any present mammals, a 
more thorough approach to mammal observance and mitigation of potential 
risks in the form of longer stops and larger shutdown zones may help. 
It may also be important to mention how the modifications of the dock 
will improve dock operations and maintenance, as opposed to a plan of 
no action that leaves the dock as is.
    Response: NMFS agrees that it is important to continue updating 
density estimates using the best available information, and will 
encourage the Navy to incorporate more recent observations into density 
estimates for species that occur in the vicinity of the Portsmouth 
Naval Shipyard.
    NMFS authorizes takes of marine mammals as requested because 
mitigation measures are not expected to entirely prevent Level A 
harassment and Level B harassment of marine mammals. NMFS works with 
applicants to develop mitigation measures that are sufficiently 
protective of marine mammals that might be impacted by the project 
activities, but also practicable for the applicant to implement. For 
example, the shutdown distances in Table 2 were negotiated between NMFS 
and the Navy during the development of the 2019 IHA, providing 
mitigation of potential impacts to marine mammals close to the 
construction activity while also preventing an impracticable amount of 
shutdowns (thus facilitating the Navy's objectives). The interruption 
of pile installation can present potential safety concerns; therefore, 
the Navy requested the ability to continue construction activities 
should visibility deteriorate following pre-clearance and consistent 
monitoring of the area in good visibility. If a shutdown does occur, 
the Navy's ability to resume construction activity once the marine 
mammal has voluntarily left the shutdown zone or has not been sighted 
for 15 minutes assumes that, based on their relatively small size and 
associated lung capacity, the species likely to occur (i.e., phocids 
and harbor porpoises) would surface to breathe within that timeframe 
and would, therefore, be visible to PSOs.
    Finally, because dimensional limitations currently impede 
operations and maintenance of Dry Dock 1, failure to complete the 
expansion and modification project would limit the Portsmouth Naval 
Shipyard's ability to service the Navy's Virginia class submarines.

Changes From the Proposed IHA to the Final IHA

    NMFS has increased total take of harbor porpoises from 0 to 2, 
harbor

[[Page 14602]]

seals from 31 to 128, gray seals from 3 to 32, harp seals from 0 to 1, 
and hooded seals from 0 to 1. These changes are described in detail in 
the Estimated Take section. In addition, PSO locations have been 
specified (see Monitoring Requirements section).

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized, 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 the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and has 
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 
authorized may be found in the Federal Register notices for the 
proposed initial IHA (84 FR 13252; April 4, 2019). NMFS has reviewed 
the monitoring data from the initial IHA, 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 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, though minor changes in the take estimates have 
been made since the proposed renewal based on consideration of public 
comment. As mentioned previously, due to the use of slightly different 
pile sizes, the source levels included in renewal IHA (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 in the renewal IHA (Tables 2 and 3) are 
fewer than those included in the initial IHA. Finally, the maximum 
ensonified area (after adjusting for interception by land and existing 
structures), or Region of Influence (ROI), is smaller (0.418 km\2\) 
than that analyzed in the initial IHA (0.854 km\2\, also adjusted for 
interception by land and existing structures at that time) because 
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
----------------------------------------------------------------------------------------------------------------
                                                                  SPLpk, dB re 1
    Pile type and size inch (in)          Installation method        [micro]Pa     SPLrms, dB re   SEL, dB re 1
                                                                                    1 [micro]Pa   [micro]Pa\2\-s
----------------------------------------------------------------------------------------------------------------
30-in steel pipe \1\................  Vibratory.................              NA       167 (175)       167 (175)
27-in sheet pile \2\................  Vibratory.................              NA       167 (163)       167 (163)
27-in sheet pile \3\................  Impact....................       211 (205)       196 (190)       181 (180)
25-in sheet pile \2\................  Vibratory.................              NA       163 (163)       163 (163)
----------------------------------------------------------------------------------------------------------------
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 did not complete before the 
initial IHA expired (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 new activity, construction of a temporary 
blast wall.

                                       Table 2--Distances and Areas of Harassment Zones, and Associated Construction Activities for Vibratory Pile Driving
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                Level A harassment injury  (PTS onset)                         Level B harassment  behavioral
                                                                            ------------------------------------------------------------------------------              disturbance
              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/0.418 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/0.418 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/0.418 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/0.418 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.


[[Page 14603]]

    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
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Level A harassment injury (PTS onset)                         Level B harassment  behavioral
                                                                            ------------------------------------------------------------------------------              disturbance
              Section                 Pile size (inch(in))     Total pile                                                                                 --------------------------------------
                                            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/0.418 km\2\................  923.5 m/0.401 km\2\..................  2,512 m/0.418 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). For the other two species, the number of 
estimated takes were as follows: Harbor seals, 2 Level A harassment 
takes, 29 Level B harassment takes; gray seals, 0 Level A harassment 
takes, 3 Level B harassment takes. However, in consideration of a 
comment from the Commission, NMFS has determined that it is appropriate 
to increase the number of harbor seal and gray seal takes. Accordingly, 
the same methods utilized in the initial IHA (based on consideration of 
group size, and the maximum number of sightings in a single day for 
each species under the initial IHA times the number of construction 
days (31)) have been used to estimate the Level B harassment take that 
will result from one month of construction activity. Because monitoring 
did not occur in March or April 2020 (when no construction was 
occurring), the maximum number of sightings in a single day for each 
species (harbor seals: 4; gray seals: 1) is based on observations from 
May 2020. In addition, Level A harassment take for both harbor seals 
and gray seals has been increased to correspond to the maximum number 
sightings in a single day in May 2020. NMFS has also authorized one 
Level B harassment take for both harp seals and hooded seals (per 
Commission's recommendation in initial IHA to include one take per 
month per species during timeframe in which they might be expected in 
the project area). Finally, one Level A harassment and one Level B 
harassment take are authorized for harbor porpoises, compared to a 
total of 5 Level A harassment and 12 Level B harassment takes 
authorized for the entire year of construction activities under the 
initial IHA.

                                          Table 4--Authorized Take by Level A Harassment and Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Percentage of
                                                                                           Take by Level   Take by Level                       stock
               Species                           Stock              Abundance of stock     A harassment    B harassment     Total takes     potentially
                                                                                                                                             affected
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor porpoise......................  Gulf of Maine/Bay of      95,543.................               1               1               2            0.00
                                        Fundy.
Harbor seal..........................  W North Atlantic........  75,834.................               4             124             128            0.17
Gray seal............................  W North Atlantic........  \1\ 27,131.............               1              31              32            0.00
Harp seal............................  W North Atlantic........  Unknown................               0               1               1            0.00
Hooded seal..........................  W North Atlantic........  Unknown................               0               1               1            0.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are nearly 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 will apply to the Navy's mitigation requirements.
Mitigation Requirements
    In summary, mitigation includes implementation of shutdown 
procedures if any marine mammal approaches or enters the shutdown zone 
for pile driving (10 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 will 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 marine mammals are present within

[[Page 14604]]

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 30 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.
Monitoring Requirements
    The Navy will employ trained 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 to observe and collect data on marine mammals in 
and around the project area. Because construction of the south closure 
wall is complete (reducing the size and changing the shape of the 
ensonified area), potential PSO monitoring locations have been revised 
from the initial IHA to include the following: Berth 2 Operations 
Barge, Berth 12, Steamship, Prescott Park, Four Tree Island, and Peirce 
Island. PSOs will monitor the entire ROI (0.418 km\2\) for 30 minutes 
before, during, and after all pile installation work. In addition, PSOs 
will record sightings at any distance from the construction activity, 
which may extend beyond the ROI.
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 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.

Determinations

    The construction activities included in the renewal IHA 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 authorized take under the renewal IHA 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 nearly identical to the initial IHA, with 
modifications to PSO monitoring locations relative to the initial IHA.
    NMFS has 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

[[Page 14605]]

for endangered or threatened species. No incidental take of ESA-listed 
marine mammal species is expected to result from this activity, and 
none are authorized. Therefore, NMFS determined that consultation under 
section 7 of the ESA was not required for this action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the 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 determined 
that the issuance of the IHA qualifies to be categorically excluded 
from further NEPA review.

Authorization

    As a result of these determinations, NMFS has issued a renewal IHA 
to the Navy for the taking of marine mammals incidental to 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. 
The IHA can be found at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

    Dated: March 12, 2021.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-05515 Filed 3-16-21; 8:45 am]
BILLING CODE 3510-22-P