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Rule2024-01558

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Naval Magazine Indian Island Ammunition Wharf Maintenance and Pile Replacement Project, Puget Sound, Washington

Primary source

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Published

January 29, 2024

Effective

October 1, 2024

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS, upon request from the U.S. Navy (Navy), issues these regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of marine mammals during the maintenance and pile replacement construction activities at the Ammunition Wharf at Naval Magazine (NAVMAG) Indian Island in Puget Sound, Washington, over the course of 5 years (2024 to 2029). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking.

Full Text

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[Federal Register Volume 89, Number 19 (Monday, January 29, 2024)]
[Rules and Regulations]
[Pages 5674-5695]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01558]

[[Page 5673]]

Vol. 89

Monday,

No. 19

January 29, 2024

Part III

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Part 217

Takes of Marine Mammals Incidental to Specified Activities; Taking
Marine Mammals Incidental to the Naval Magazine Indian Island
Ammunition Wharf Maintenance and Pile Replacement Project, Puget Sound,
Washington; Final Rule

Federal Register / Vol. 89, No. 19 / Monday, January 29, 2024 / Rules
and Regulations

[[Page 5674]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 240122-0021]
RIN 0648-BL79

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Naval Magazine Indian Island
Ammunition Wharf Maintenance and Pile Replacement Project, Puget Sound,
Washington

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

ACTION: Final rule.

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SUMMARY: NMFS, upon request from the U.S. Navy (Navy), issues these
regulations pursuant to the Marine Mammal Protection Act (MMPA) to
govern the taking of marine mammals during the maintenance and pile
replacement construction activities at the Ammunition Wharf at Naval
Magazine (NAVMAG) Indian Island in Puget Sound, Washington, over the
course of 5 years (2024 to 2029). These regulations, which allow for
the issuance of Letters of Authorization (LOA) for the incidental take
of marine mammals during the described activities and timeframes,
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on marine mammal species
and their habitat, and establish requirements pertaining to the
monitoring and reporting of such taking.

DATES: Effective October 1, 2024, until September 30, 2029.

ADDRESSES: A copy of the Navy's application, NMFS' final rule, and
other supporting documents may be obtained online at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-taking-marine-mammals-incidental-naval-magazine-indian">https://www.fisheries.noaa.gov/action/incidental-take-authorization-taking-marine-mammals-incidental-naval-magazine-indian</a>. In case of problems
accessing these documents, please use the contact listed here (see FOR
FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, <a href="/cdn-cgi/l/email-protection#eba2bfbbc59b8a9e8782858eab85848a8ac58c849d"><span class="__cf_email__" data-cfemail="a2ebf6f28cd2c3d7cecbccc7e2cccdc3c38cc5cdd4">[email&#160;protected]</span></a>, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

We received an application from the Navy requesting 5-year
regulations and authorization to incidentally take multiple species of
marine mammals. This rule establishes a framework under the authority
of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of
take by Level A and Level B harassment of marine mammals incidental to
the Navy's maintenance and pile replacement construction activities at
the Ammunition Wharf at NAVMAG Indian Island in Puget Sound,
Washington. Please see Background below for definitions of harassment.

Legal Authority for the Action

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional, taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to 5 years if,
after notice and public comment, the agency makes certain findings and
issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Mitigation section), as
well as monitoring and reporting requirements. Section 101(a)(5)(A) of
the MMPA and the implementing regulations at 50 CFR part 217, subpart I
provide the legal basis for issuing this rule containing 5-year
regulations, and for any subsequent LOAs. As directed by this legal
authority, this rule contains mitigation, monitoring, and reporting
requirements.

Summary of Major Provisions

The following is a summary of the major provisions of this final
rule regarding Navy construction activities. These provisions include,
but are not limited to:
<bullet> Monitoring of the construction areas to detect the
presence of marine mammals before beginning construction activities;
<bullet> Shutdown of construction activities under certain
circumstances to avoid injury of marine mammals;
<bullet> Soft start for impact pile driving to allow marine mammals
the opportunity to leave the area prior to beginning impact pile
driving at full power; and
<bullet> Use of bubble curtains to attenuate sound levels when
impact driving steel piles.

Background

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

Summary of Request

In May 2021, NMFS received an application from the Navy requesting
authorization to take small numbers of eight species of marine mammals
incidental to construction activities at the Ammunition Wharf at NAVMAG
Indian Island. The Navy requested regulations that would establish a
process for authorizing such take via an LOA. NMFS reviewed the Navy's
application, and sent initial questions regarding the application to
the Navy on October 5, 2021. The Navy addressed the questions and
submitted a revised LOA application on March 24, 2022. After additional
questions were sent by NMFS, the Navy submitted another revised
application on May 13, 2022, and the revised application was deemed
adequate and complete on June 9, 2022. The application was published
for public review and comment on August 4, 2022 (87 FR 47722).
Following publication of the application, the Navy delayed the project
start date by 1 year. We published a notice of the proposed rulemaking
in the Federal Register on October 30, 2023 (88 FR 74113). There

[[Page 5675]]

are no changes from the proposed to the final rulemaking.
The regulations will be valid for 5 years, from October 1, 2024,
until September 30, 2029, and allow NMFS to authorize the Navy to take
eight species of marine mammals by Level B harassment and,
additionally, one of these species by Level A harassment, incidental to
construction activities related to the maintenance and pile replacement
project at the Ammunition Wharf at NAVMAG Indian Island in Puget Sound,
Washington. Neither the Navy nor NMFS expect serious injury or
mortality to result from this activity.

Description of Activity

Overview

The Navy plans to replace defective structural concrete and fender
piles as well as conduct maintenance and repair activities on the
Ammunition Wharf at NAVMAG Indian Island. Maintaining this wharf
structure is vital to sustaining the Navy's mission and ensuring
readiness. The Navy plans to replace up to 118 structural concrete
piles or fender piles, conduct maintenance, and engage in repair
activities over a 7-year period on the Ammunition Wharf. However, the
LOA may only be valid for 5 years. The Navy plans to conduct necessary
work, including impact and vibratory pile driving, to replace and
maintain the wharf structure. Under the 5-year rule, up to 110
structurally unsound structural piles or fender piles will be replaced.
Structural concrete piles will be replaced with 24-inch concrete piles
and old fender piles will be replaced with 14-inch steel H piles or
18.75-inch composite piles. Up to eight steel piles may also be
installed in addition to the structural concrete piles if necessary.
The 2 years following the expiration of the rule will consist of
removal and installation of concrete piles, and maintenance and repair
work. The Navy will request incidental take authorizations as necessary
for the final 2 years of work.

Dates and Duration

The regulations and LOA will be valid for a period of 5 years from
October 1, 2024, until September 30, 2029. All pile driving will be
conducted during the prescribed in-water work window of October 1 to
January 15 to avoid conducting activities when juvenile salmonids are
most likely to be present. A conservative estimate of annual pile
driving days over the duration of the 5-year LOA is based on the
assumption that pile driving rates will be relatively slow and will
take approximately 24 days per year with up to 22 concrete piles or
fender piles and up to 2 steel piles installed per year.
Conservatively, one concrete pile will be installed per day using
jetting followed by proofing with an impact hammer. There may be extra
days for additional proofing or weather/equipment delays. Actual daily
production rates may be higher (often two piles are installed in a
day), resulting in fewer actual pile driving days.

Specific Geographic Region

NAVMAG Indian Island is located near Port Hadlock in Jefferson
County, Washington, southeast of Port Townsend, at the northeast corner
of the Olympic Peninsula (figure 1). The island is approximately 8
kilometers (km) long and 2 km wide, and comprises approximately 11 km
square (km\2\). NAVMAG Indian Island is located between Port Townsend
Bay and Kilisut Harbor. The Federal Government owns the island and
provides an easement on a small portion of the southern extent of the
island to Washington State Department of Transportation for access to
Marrowstone Island along State Route 116. NAVMAG Indian Island is the
West Coast ammunition ordnance storage center supporting the U.S. Navy
Pacific Fleet.
NAVMAG Indian Island occupies approximately 19 km of shoreline
within Port Townsend Bay. There are two marine structures located at
NAVMAG Indian Island, the Ammunition Wharf and the Small Craft Pier,
but only the Ammunition Wharf activities are addressed in this rule.
Its primary mission is to load, offload, and provide storage and
logistics management for ordnance used on Navy vessels.

[[Page 5676]]

[GRAPHIC] [TIFF OMITTED] TR29JA24.000

Detailed Description of the Specified Activity

NAVMAG Indian Island is the West Coast ammunition ordnance storage
center supporting the U.S. Navy Pacific Fleet. Its primary mission is
to load, offload, and provide storage and logistics management for
ordnance used on Navy vessels. Construction of the Ammunition Wharf was
completed in 1979, and there are a total of 1,783 piles in the
Ammunition Wharf: 1,391 structural piles, 306 fender piles and 86
Operations Building piles.
The Ammunition Wharf was originally constructed using precast
concrete piles. As a result of the steam curing process used at that
time, an unknown quantity of piling is susceptible to a potentially
catastrophic condition called Delayed Ettringite Formation (DEF). DEF
is a result of high early temperatures in the concrete, which prevents
the normal formation of ettringite. DEF occurs rapidly and without
warning.
The Navy schedules inspections on waterfront facilities that
usually occur every 3 years, but due to DEF at the Ammunition Wharf,
inspections for that structure occur every two years. Based on the most
recent inspection in 2021, there are 161 piles (158 under Ammunition
Pier and three under the Operations Building at Ammunition Wharf) with
some appreciable level of DEF damage (most or all of those piles will
be replaced). More piles with DEF damage may be detected and therefore
may need to be replaced over the duration of the LOA.
Table 1 shows the details of the construction activities which are
described below in greater detail.

[[Page 5677]]

Table 1--Project Components for Pile Replacement for the Ammunition
Wharf
------------------------------------------------------------------------
Wharf structure (in-water construction) Construction details
------------------------------------------------------------------------
Total Piles............................ Up to 118 piles installed over
5 years (including up to 8
steel piles, with the
remainder concrete).
Quantity of concrete piles (24-inch)... Up to 22 per year over 5 years.
Quantity of permanent steel piles (36- Up to two per year (Maximum of
inch). eight) over 5 years (Currently
no steel pile installation is
planned, installation would
depend on future pile
inspections).
Pile Removal Method.................... Cutting.
Pile Installation Method............... Jetting and impact driving of
concrete piles; Vibratory and
impact driving of steel piles.
No simultaneous pile driving
will occur.
Quantity of piles above -30 feet MLLW.. All.
Maximum number of piles driven per day Two concrete piles per day.
(approximately). One steel pile per day.
Total duration of impact pile driving.. No more than 45 minutes per day
(mean = 10 minutes for
concrete piles; 15 minutes for
steel piles).
Maximum duration of vibratory pile No more than 30 minutes (mean =
driving. 10 minutes per steel pile).
Marine Construction Duration (including 3.5 months per year (In water
in-water restrictions). work window: October 1 through
January 15).
------------------------------------------------------------------------

Removal of Existing Piles
After demolition of the deck portions of the wharf located above
the waterline, three methods of pile removal (cutting/chipping,
clamshell removal, and direct pull) may be used. However, hydraulic
cutting will be the primary method of pile removal due to working under
the wharf and the DEF damage to the piles. In some cases, piles may be
cut at or below the mudline, with the below-mudline portion of the pile
left in place. None of these pile removal activities are anticipated to
result in take of marine mammals; therefore, they are not discussed
further beyond the brief elaboration on jetting and pile cutting
provided below.
Pile Installation
Three methods of pile installation for concrete and steel piles
will be used (vibratory, jetting, and impact) depending on the type of
pile and site conditions. Only one pile will be installed at a time; no
simultaneous pile driving will occur. These methods are described
below.
The primary methods of concrete pile installation will be water
jetting to within 3 meters (m) of final depth and then impact pile
driving to set or proof the final 3 m. Water jetting aids the
penetration of a pile into a dense sand or sandy gravel stratum. Water
jetting utilizes a carefully directed and pressurized flow of water at
the pile tip, which disturbs a ring of soils directly beneath it. The
jetting technique liquefies the soils at the pile tip during pile
placement, reducing the friction and interlocking between adjacent sub
grade soil particles around the water jet. For load-bearing structures,
an impact hammer is typically required to strike a pile a number of
times to ensure it has met the load-bearing specifications; this is
referred to as ``proofing.'' Load-bearing piles installed with water
jetting will still need to be proofed with an impact pile driver.
A vibratory hammer will be used to install the structural steel
piles and fender piles. The primary method of pile installation for
steel piles will be vibratory to within 3 m of final depth and then
impact pile driving to set or proof the final 3 m. The vibratory pile
driver method is a technique that may be used in pile installation
where the substrate allows. Use of this technique will be limited in
very hard substrates. This process begins by placing a choker cable
around a pile and lifting it into vertical position with a crane. The
pile is then lowered into position and set in place at the mudline. The
pile is held steady while the vibratory driver installs the pile to the
required tip elevation. In some substrates, a vibratory driver may be
unable to advance a pile until it reaches the required depth. In these
cases, an impact hammer will be used to advance the pile to the
required depth.
Impact hammers will be used to proof concrete piles that have been
jetted to depth or steel piles that have been driven using the
vibratory method. Proofing involves impact pile driving to determine if
the pile has been driven to the proper load-bearing specifications
within the substrate. Proofing of concrete piles at the Ammunition
Wharf in 2015 and 2016 required 200 to 600 strikes per pile to complete
(Navy, 2016).
Impact hammers have a heavy piston that moves up and down striking
the top of the pile and driving the pile into the substrate from the
downward force of the hammer. Impact hammer pile proofing can typically
take a minute or less to 30 minutes depending on pile type, pile size,
and conditions (i.e., bedrock, loose soils, etc.) to reach the required
tip elevation.
The Navy states that piles will be advanced to the extent
practicable with a vibratory driver and only impact driven when
required for proofing or when a pile cannot be advanced with a
vibratory driver due to hard substrate conditions.
Existing piles that are structurally sound may require additional
repair activities. Such activities could include wetwell repair;
recoating of piles and mooring fittings; installation or replacement of
passive cathode protection systems; repair and replacement of pile
caps; concrete repair; mooring foundation and substructure repair;
replacement of components (e.g., hand rails, safety ladders, light
poles); and rewrapping or replacement of steel cable straps on
dolphins. These repairs are described in greater detail in the Navy's
application but will not result in the take of marine mammals and are
not discussed further.
Operation of the following equipment types is not reasonably
expected to result in take of marine mammals and will not be discussed
further beyond the brief summaries provided below:
<bullet> Jetting produces much lower sound levels (approximately
147.5 decibel (dB) Root Mean Square (RMS); NAVFAC SW, 2020) than
vibratory pile driving 166 dB RMS (Navy, 2015). The sounds produced by
jetting are of similar frequencies to the sounds produced by vessels,
and are anticipated to diminish to background noise levels (or be
masked by background noise levels) in Port Townsend Bay.
<bullet> Hydraulic cutting will be used be used to assist with
removal of piles. Similar to jetting, the sounds produced by cutting
are of similar frequencies to the sounds produced by vessels (NAVFAC
SW, 2020), and are anticipated to diminish to background noise levels
(or be masked by background noise levels) in Port Townsend Bay
relatively close to the Ammunition Wharf. Cutting of 24-inch concrete
piles also produces much lower sound levels (approximately 141.4 dB
RMS; (NAVFAC SW, 2020)) than vibratory pile driving 166 dB RMS (Navy,
2015).
Mitigation, monitoring, and reporting measures are described in
detail later in

[[Page 5678]]

this document (please see Mitigation and Monitoring and Reporting).

Comments and Responses

A notice of NMFS' proposed rulemaking to the Navy was published in
the Federal Register on October 30, 2023 (88 FR 74113). That proposed
rule described, in detail, the Navy's activities, the marine mammal
species that may be affected by the activities, and the anticipated
effects on marine mammals. In that proposed rule, we requested public
input on the request for authorization described therein, our analyses,
the proposed authorization, and any other aspect of the notice of
proposed rulemaking, and requested that interested persons submit
relevant information, suggestions, and comments. This proposed rule was
available for a 30-day public comment period.
NMFS received three letters from private citizens during the public
comment period. These comments were outside the scope of this rule.
There are no changes from the proposed to the final rulemaking as a
result of these comments.

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions instead of reprinting the information. Additional
information regarding population trends and threats may be found in
NMFS' Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks that could occur during this
activity, and summarizes information related to the population or
stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
PBR is defined by the MMPA as the maximum number of animals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its optimum
sustainable population (as described in NMFS' SARs). While no serious
injury or mortality is expected to occur, PBR and annual serious injury
and mortality from anthropogenic sources are included here as gross
indicators of the status of the species or stocks and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All stocks managed under the MMPA in this region
are assessed in NMFS' U.S. Pacific Marine Mammal Stock Assessment
Report. All values presented in table 2 are the most recent available
at the time of publication and are available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.

Table 2--Marine Mammal Species \4\ Likely To Occur Near the Project Area That May be Taken by the Navy's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock Strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
Gray Whale...................... (Eschrichtius robustus) Eastern N Pacific...... -,-, N 26,960 (0.05, 25,849, 801 131
2016).
Family Balaenopteridae (rorquals):
Humpback Whale.................. Megaptera novaeangliae. Central America/ E, D, Y 1,496 (0.171, 1,284, 3.5 14.9
Southern Mexico-- 2021).
California-Oregon-
Washington.
Mainland Mexico-- T, D, Y 3,477 (0.101, 3,185, 43 22
California-Oregon- 2018).
Washington.
Hawaii................. -, -, N 11,278 (0.56, 7,265, 127 27.09
2020).
Minke Whale..................... Balaenoptera CA/OR/WA............... -, -, N 915 (0.792, 509, 2018) 4.1 >=0.59
acutorostrata.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises):
Dall's Porpoise................. Phocoenoides dalli..... CA/OR/WA............... -, -, N 16,498 (0.61, 10,286, 99 >=0.66
2019).
Harbor Porpoise................. Phocoena phocoena...... Washington Inland -, -, N 11,233 (0.37, 8,308, 66 >=7.2
Waters. 2015).
Family Delphinidae:
Killer Whale.................... Orcinus orca........... West Coast Transient... -, -, N 349 (N/A, 349, 2018).. 3.5 0.4
Eastern North Pacific E, D, Y 74 (N/A, 74, 2021).... 0.13 >=0.4
Southern Resident.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
CA Sea Lion..................... Zalophus californianus. U.S.................... -, -, N 257,606 (N/A, 233,515, 14011 >320
2014).
Steller Sea Lion................ Eumetopias jubatus..... Eastern................ -, -, N 43,201 (N/A, 43,201, 2,592 112
2017).
Family Phocidae (earless seals):

[[Page 5679]]

Harbor Seal..................... Phoca vitulina......... Washington Northern -, -, N 11,036 \5\ (UNK, UNK, UND 9.8
Inland Waters. 1999).
Northern Elephant Seal.......... Mirounga angustirostris CA Breeding............ -, -, N 187,386 (NA, 85,369, 5122 13.7
2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2022)).
\5\ The abundance estimate for this stock is greater than 8 years old and is therefore not considered current. PBR is considered undetermined for this
stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these
represent the best available information for use in this document.

As indicated above, all 10 species (with 13 managed stocks) in
table 2 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. However, no take is
authorized for killer whales and humpback whales for the reasons
provided in the Federal Register notice for the proposed rule (88 FR
74113, October 30, 2023). No take of these species is anticipated or
will be authorized by NMFS and we do not discuss them further.
A detailed description of the species likely to be affected by the
Navy's construction activities, including brief introductions to the
species and relevant stocks as well as available information regarding
population trends and threats, and information regarding local
occurrence, were provided in the Federal Register notice for the
proposed rule (88 FR 74113, October 30, 2023). Since that time, we are
not aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to the NMFS website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 dB
threshold from the normalized composite audiograms, with the exception
for lower limits for low-frequency cetaceans where the lower bound was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. Marine mammal hearing groups and their
associated hearing ranges are provided in table 3.

Table 3--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al,. 2007) and PW pinniped (approximation).

The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.

[[Page 5680]]

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

The effects of underwater noise from the Navy's construction
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the project area. The notice of the
proposed rulemaking (88 FR 74113, October 30, 2023) included a
discussion of the effects of anthropogenic noise on marine mammals and
the potential effects of underwater noise from the Navy's construction
activities on marine mammals and their habitat. That information and
analysis is referenced in this final rule and is not repeated here;
please refer to the notice of the proposed rulemaking (88 FR 74113,
October 30, 2023).

Estimated Take of Marine Mammals

This section provides an estimate of the number of incidental takes
that may be authorized under this final rule, which will inform both
NMFS' consideration of ``small numbers,'' and the negligible impact
determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes will be primarily by Level B harassment, as use of
the acoustic sources (i.e., vibratory and impact pile driving
equipment) has the potential to result in disruption of behavioral
patterns for individual marine mammals. There is also some potential
for auditory injury (Level A harassment) to result, primarily for
harbor seals (phocids) because these animals are known to occur in
close proximity to the pile driving locations. Auditory injury is
unlikely to occur for other hearing groups or species. The required
mitigation and monitoring measures are expected to minimize the
severity of the taking to the extent practicable.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below, we describe how the
authorized take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the estimated take numbers.

Acoustic Thresholds

NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur permanent threshold shift (PTS) of some
degree (equated to Level A harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS sound pressure level (SPL))
of 120 dB (referenced to 1 micropascal (re 1 [mu]Pa)) for continuous
(e.g., vibratory pile-driving, drilling) and above RMS SPL 160 dB re 1
[mu]Pa for non-explosive impulsive (e.g., seismic airguns) or
intermittent (e.g., scientific sonar) sources.
The Navy's planned activity includes the use of continuous
(vibratory hammer source type) and impulsive (impact hammer) sources,
and therefore the RMS SPL thresholds of 120 and 160 dB re 1 [mu]Pa are
applicable.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). The Navy's
planned activity includes the use of impulsive (impact hammer) and non-
impulsive (vibratory hammer) sources.
These thresholds are provided in the table 4 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.

Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS Onset Acoustic Thresholds * (received level)
Hearing Group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB..
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB..
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.

[[Page 5681]]

Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss (TL)
coefficient.
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and TL coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the project. Marine
mammals are expected to be affected by sound generated by the primary
components of the project (i.e., impact and vibratory pile driving).
Data from prior pile driving projects at the Naval Base Kitsap
Bangor and Bremerton waterfronts were reviewed in the analysis. The
representative sound pressure levels used in the analysis are presented
in table 5.
For vibratory pile driving distances to the PTS thresholds, the TL
model described above incorporated the auditory weighting functions for
each hearing group using a single frequency as described in the NMFS
Spreadsheet (NMFS, 2018). For impact pile driving distances to the PTS
thresholds for 36-inch steel pile and 24-inch concrete pile, the TL
model described above incorporated frequency weighting adjustments by
applying the auditory weighting function over the entire 1-second
(sound exposure level) SEL spectral data sets from impact pile driving.
If a source level for a particular pile size was not available, the
next highest source level was used to produce a conservative estimate
of areas above threshold values.
In order to calculate distances to the Level A harassment and Level
B harassment thresholds for the methods and piles being used in this
project, the Navy used acoustic monitoring data from various similar
locations to develop source levels for the different pile types, sizes,
and methods planned for use (table 5).

Table 5--Source Levels for Removal and Installation Activities
----------------------------------------------------------------------------------------------------------------
Peak \1\ (dB
Pile Diameter RMS \1\ (dB re re 1 SEL \2\ (dB re 1
(inches) 1 [micro]Pa) [micro]Pa) [micro]Pa\2\ sec)
----------------------------------------------------------------------------------------------------------------
Impact Installation:
Concrete................................ 24 174 189 167
Steel Pipe \2\.......................... 36 192 211 184
Vibratory Removal:
Steel Fender............................ 14 150 N/A N/A
Vibratory Installation:
Steel Fender............................ 14 150 N/A N/A
Composite Fender........................ 18.75 150 N/A N/A
Steel pipe.............................. 36 167 N/A N/A
----------------------------------------------------------------------------------------------------------------
Source: Navy, 2015; Navy, 2017, 2018, NAVFAC SW, 2020; WDOT, 2017.
Key: N/A = not applicable.
\1\ Sound pressure levels are presented for a distance of 10 m from the pile. RMS and Peak levels are relative
to 1 [mu]Pa and cumulative SEL levels are relative to 1 [mu]Pa2 sec.
\2\ Values modeled for impact driving 36-inch steel piles will be reduced by 8 dB for noise exposure modeling to
account for attenuation from a bubble curtain.

A bubble curtain will be used to minimize the noise generated by
impact driving of steel pipe piles. Note that impact pile driving of
steel piles will only occur if it is necessary to install the 36-inch
steel piles and none are currently planned to be installed. If steel
piles became necessary then a maximum of 2 piles will be installed
within the 5-year effective period of the LOA. The bubble curtain is
expected to attenuate impact pile driving sound levels an average of 8
dB based on past performance during similar Navy projects in Puget
Sound (Navy, 2015); therefore, 8 dB was subtracted from values in table
5 prior to modeling the behavioral and PTS thresholds for impact pile
driving steel pipe piles. For the cumulative SEL PTS thresholds,
auditory weighting functions were applied to the attenuated 1-second
SEL spectra for steel pipe piles.

Level B Harassment Zones

TL is the decrease in acoustic intensity as an acoustic pressure
wave propagates out from a source. TL parameters vary with frequency,
temperature, sea conditions, current,

[[Page 5682]]

source and receiver depth, water depth, water chemistry, and bottom
composition and topography. The general formula for underwater TL is:

TL = B * Log10 (R1/R2),

where

TL = transmission loss in dB,
B = transmission loss coefficient (for practical spreading equals
15),
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement.

The recommended TL coefficient for most nearshore environments is
the practical spreading value of 15. This value results in an expected
propagation environment that would lie between spherical and
cylindrical spreading loss conditions, which is the most appropriate
assumption for the Navy's activities. The Level B harassment zones and
areas for the Navy's activities are shown in table 6.

Table 6--Calculated Radial Distance(s) to Underwater Marine Mammal Vibratory Pile Driving Noise Thresholds and
Areas Encompassed Within Threshold Distance
----------------------------------------------------------------------------------------------------------------
Behavioral disturbance-- Level B harassment (120 dB RMS)
Type ------------------------------------------------------------------------
Radial distance to threshold Area encompassed by threshold
----------------------------------------------------------------------------------------------------------------
14-inch steel H fender pile (vibratory) 1,000 m............................ 1.8 km\2\.
18.75-in composite fender pile 1,000 m............................ 1.8 km\2\.
(vibratory).
36-inch steel (vibratory).............. 13.6 km............................ 54 km\2\.
----------------------------------------------------------------------------------------------------------------

Level A Harassment Zones

The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional User
Spreadsheet tool to accompany the Technical Guidance that can be used
to relatively simply predict an isopleth distance for use in
conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources such as impact and vibratory driving, the optional
User Spreadsheet tool predicts the distance at which, if a marine
mammal remained at that distance for the duration of the activity, it
would be expected to incur PTS.
The isopleths generated by the User Spreadsheet used the same TL
coefficient as the Level B harassment zone calculations (i.e., the
practical spreading value of 15). Inputs used in the User Spreadsheet
(e.g., number of piles per day, duration and/or strikes per pile) are
presented in table 7. The maximum RMS SPL/SEL SPL and resulting
isopleths are reported below in table 8 and table 9. The maximum RMS
SPL value was used to calculate Level A harassment isopleths for
vibratory pile driving while the single strike SEL SPL value was used
to calculate Level A harassment isopleths for impact pile driving
activities. Note that Peak PTS thresholds were smaller for all pile
sizes and hearing groups compared to SEL SPL values.

Table 7--Parameters of Pile Driving Activity Used in User Spreadsheet
--------------------------------------------------------------------------------------------------------------------------------------------------------
Removal or
installation of steel
24-Inch concrete 36-Inch steel Fender pile 14-inch steel or 36-Inch steel
18.75-inch composites
--------------------------------------------------------------------------------------------------------------------------------------------------------
Type of installation/removal... Impact................... Impact................... Vibratory........... Vibratory............ Vibratory.
Source Level................... 167 SEL/189 PK........... 184 SEL/211 PK........... 144 RMS............. 150 RMS.............. 192 RMS.
Weighting Factor Adjustment 2........................ 2........................ 2.5................. 2.5.................. 2.5.
(kHz).
(a) Number of strikes/pile..... 1,000.................... 500......................
(a) Activity Duration (min) ......................... ......................... 10.................. 10................... 45.
within 24-h period.
Propagation (xLogR)............ 15....................... 15....................... 15.................. 15................... 15.
Piles per day.................. 2........................ 1........................ 2................... 2.................... 1.
Distance of source level 10....................... 10....................... 10.................. 10................... 10.
measurement (meters).
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 8--Calculated Radial Distance(s) to Impact Pile Driving Noise Thresholds for Level A and Level B Harassment and Associated Areas \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment Level A harassment cetaceans Behavioral disturbance Level B
pinnipeds --------------------------------------- (160 dB RMS)
-------------------------- -----------------------------------
Area encompassed
Harbor seal Sea lion LF (m) MF (m) HF (m) Radial distance by threshold
(m) (m) to threshold (m) (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
24-inch concrete................................... 29 2 54 2 64 86 0.02

[[Page 5683]]

36-inch steel...................................... 182 13 243 8 256 398 0.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Calculations based on SELCUM threshold criteria shown in Table 4 and source levels shown in Table 5.

Table 9--Calculated Radial Distance(s) to Vibratory Pile Driving Noise Thresholds for Level A and Level B Harassment and Associated Areas \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment Level A harassment cetaceans Behavioral disturbance Level B
pinnipeds --------------------------------------- (120 dB RMS)
-------------------------- -----------------------------------
Area encompassed
Phocids (m) Otariids LF (m) MF (m) HF (m) Radial distance by threshold
(m) to threshold (km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-inch steel H fender pile (vibratory)............ <1 <1 <1 <1 <1 1,000 m 1.8
18.75-in composite fender pile (vibratory.......... <1 <1 <1 <1 <1 1,000 m 1.8
36-inch steel (Vibratory).......................... 4 <1 7 <1 11 13.6 km 54
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Vibratory pile driving would only occur if it is necessary to install 36 inch steel piles, none are currently planned to be installed. If steel
piles became necessary then only up to eight would be installed within the 5 years of the LOA.

Marine Mammal Occurrence and Take Calculation and Estimation

In this section we provide information about the occurrence of
marine mammals, including density or other relevant information that
will inform the take calculations. We describe how the information
provided above is brought together to produce a quantitative take
estimate for each species.

Take Estimation

To quantitatively assess potential exposure of marine mammals to
noise levels from pile driving over the NMFS threshold guidance, the
following equation was first used to provide an estimate of potential
exposures within estimated harassment zones:
Exposure estimate = N x Level B harassment zone (km\2\) x maximum
days of pile driving per year where N = density estimate (animals per
km\2\) used for each species.
Note that the area of the harassment zone is truncated by land
masses surrounding the area (i.e., Whidbey Island, Port Townsend
mainland, and Indian Island). Densities are shown in table 10.
In addition, local occurrence data from prior monitoring efforts,
discussed in the next paragraph, was used as a supplement to estimate
potential occurrence of harbor seals within the Level A harassment
zones. This method is conservative in providing estimates of potential
exposure above the total given using the aforementioned equation that
we equate here with Level A harassment.
For harbor seals, which were the primary species found within 1,000
m of the Ammunition Wharf during pile driving monitoring from 2014 to
2016 and 2020 (Navy, 2014, 2016, 2021), a daily rate of harbor seal
occurrence was determined for vibratory installation of fender piles
for the Level A harassment zones. Only harbor seals were observed
during pile driving monitoring (Navy, 2016, 2020) and weekly marine
mammal surveys (2022) at NAVMAG Indian Island Ammunition Wharf with the
exception of a single harbor porpoise and a single California sea lion.
The site-specific data was used to estimate take only for harbor seals
at a rate of 0.5 seals per day from concrete impact driving and eight
seals per day from steel impact driving, based on the different
estimated zone sizes.
During the site-specific monitoring efforts discussed above, only
harbor seals were observed during pile driving monitoring (Navy, 2016,
2020) and weekly marine mammal surveys (2022) at NAVMAG Indian Island
Ammunition Wharf, with the exception of a single harbor porpoise and a
single California sea lion. For species other than harbor seal--for
which use of the available density information and the equation given
above provide low calculated take estimates (described in species-
specific sections below)--it was assumed between one (i.e., gray whale,
minke whale) and three animals will be taken over the duration of the
rule (by Level B harassment only). For California sea lions, Steller
sea lions, and northern elephant seals it was assumed that there will
be one take per year from concrete/fender pile installation (by Level B
harassment only). It was also assumed that there will be one additional
take per year by Level B harassment during steel pile installation for
the northern elephant seal. In contrast to pinniped species, Dall's
porpoises and harbor porpoises often occur in pods of two to four
porpoises. Therefore, it was assumed that there will be up to three
takes per year by concrete/fender pile installation for each species
with three additional takes per year only for Dall's porpoises per year
due to steel pile installation. All takes are assumed to be by Level B
harassment only, based on the assumed rarity of occurrence and the
Navy's plan to implement shutdown procedures for all cetaceans at the
estimated Level B harassment distance.
The density estimates given in table 10 come from the Pacific
Navy's Marine Species Density Database (NMSDD), Naval Facilities
Engineering Systems Command (NAVFAC) Pacific Technical Report (Navy,
2020) and Smultea et al. (2017) (for harbor porpoise). The seasonal
density value for each species during the in-water work window at each
site was used in the marine mammal take assessment calculation.
Note that the largest Level B harassment zone will be generated
during vibratory driving. The Level B harassment zone for an impact
hammer will be encompassed by the larger Level B harassment zone from
the vibratory driver. Impact pile driving was assumed

[[Page 5684]]

to be one pile per day but actual daily production rates may be higher
with a maximum of two per day, resulting in fewer in-water pile driving
days. It was assumed that 22 days of concrete pile installation will
occur. This is a conservative estimate based on past work at NAVMAG.
There will be up to 22 concrete piles (24-in) driven over the maximum
of 22 days per year over 5 years with up to two 24-inch concrete piles
driven per day (1 to 2 piles installed per day; mean of 1.8 piles
installed per day) depending on accessing the wharf deck, weather,
harbor seal delays, or equipment issues. Note that this conservative
estimate of pile driving days is used solely to assess the number of
days during which pile driving could occur if production was delayed
due to equipment failure, safety, etc. In a real construction
situation, pile driving production rates will be maximized when
possible.

Table 10--Marine Mammal Species Densities in Project Area
------------------------------------------------------------------------
Density (October-
Species Region location February) * Animals km\2\

------------------------------------------------------------------------
Gray whale.................. North Puget Zero (within 1,000 m).\1\
Sound. 0.00048 (Fall and
Winter).\2\
Minke Whale................. Puget Sound.... Zero (within 1,000 m).\1\
0.00045 (Annual).\2\
Harbor porpoise............. North Puget 1.16 (Annual).\2\ \3\
Sound.
Dall's porpoise............. Puget Sound.... 0.00045 (Annual).\2\
Steller sea lion............ Puget Sound.... Zero (within 1,000 m).\2\
0.0478 (Fall and
Winter).\1\
California sea lion......... Puget Sound.... Zero (within 1,000 m).\1\
0.2211 (Fall).\2\
0.1100 (Winter).\2\
Northern elephant seal...... Puget Sound.... Zero (within 1,000 m).\1\
0.0000 (Annual).\2\
Harbor Seal................. North Puget 14-18.75-inch Fender Pile
Sound. Driving.\1\
Within 10 m = 0.0 seals/
day (Level A zone).
Within 1,000 m = 15.54
seals per day (Level B
harassment zone).
24-inch Concrete Impact
Pile Driving.\1\
Within 29 m = 0.5 seals/
day (Level A harassment
zone).
Combine with the larger
fender pile vibratory
Level B harassment zone.
36-inch Steel Impact Pile
Driving.\1\
Within 182 m = 8 seals/
day (Level A harassment
zone).
Combine with the larger
vibratory zone for Level
B harassment.
36-inch Steel Vibratory
Pile Driving.
Within 10 m = 0.0 seals/
day (Level A zone).
Within 13.6 km (54 km\2\)
= 2.83 seals/km\2\.
------------------------------------------------------------------------
* 13.6 km with an area of 54 km\2\ (a large part of the area was
truncated by land masses) was used for 36-inch steel pile vibratory
installation.
Sources: \1\ Navy, 2014, 2016; 2021; \2\ NMSDD (Navy, 2020), \3\ Smultea
et al. (2017).

It is important to note that the successful implementation of
mitigation methods (i.e., visual monitoring and the use of shutdown
zones) is expected to result in no Level A harassment exposure to all
marine mammals except harbor seals because the injury zones and
behavioral zones will be monitored during pile driving. Harbor seal
Level A harassment exposure will be limited to the smallest extent
practicable. The exposure assessment estimates the numbers of
individuals potentially exposed to the effects of pile driving noise
exceeding NMFS established thresholds. Results from acoustic impact
exposure assessments should be regarded as conservative overestimates
that are strongly influenced by limited marine mammal data, the
assumption that marine mammals will be present during pile driving, and
the assumptions that the maximum number of piles will be extracted or
installed.
Gray Whale
Most gray whales in Puget Sound utilize the feeding areas in
northern Puget Sound around Whidbey Island and in Port Susan in March
through June with a few individual sightings occurring year-round that
are not always associated with feeding areas. Therefore, gray whales
are included in the take authorization. The majority of in-water work
will occur during the fall and winter when gray whales are less likely
to be present in Puget Sound. Therefore, based on a low probability of
occurrence within the vibratory harassment zones, the Navy used the
formula described above to calculate estimated exposures. The formula
estimated zero takes per year; however, due to the uncertainty of gray
whale movements and the large area of exposure during vibratory driving
of 36-inch steel piles, the Navy has requested and NMFS has assumed
take by Level B harassment at a rate of one animal per year.
To protect gray whales from noise impacts, the Navy will implement
a shutdown if protected species observers (PSO) see gray whales
approaching or within any harassment zone. A PSO will be stationed at
locations from which the injury zone and behavioral zone for impact and
vibratory pile driving are visible and will implement shutdown if a
whale approaches or enters either zone. With the implementation of
monitoring, even if a whale enters an injury zone, shutdown would occur
before cumulative exposure to noise levels that would result in PTS
could occur. Because pile driving will be shut down if whales are in
the injury zone, no Level A harassment take has been requested or
authorized by NMFS. In summary, the Navy has requested, and NMFS has
authorized one take of gray whale by Level B harassment each year for
the duration of the 5-year LOA.
Minke Whale
Minke whales in Washington inland waters typically feed in the
areas around the San Juan Islands and along banks in the Strait of Juan
de Fuca. Minke whales are infrequent visitors to Puget Sound,
especially east of Admiralty Inlet. When present, minke whales are
usually seen singly or in pairs. Therefore, based on a low probability
of occurrence within

[[Page 5685]]

the vibratory harassment zones, the Navy used the same equation
discussed above to calculate estimated exposures. The formula estimated
zero takes annually for the duration of the LOA. However, due to the
uncertainty of minke whale movements and the large area of exposure
during vibratory driving of 36-inch steel piles, the Navy requested,
and NMFS has authorized take for the exposure of one minke whale per
year for the duration of the 5-year LOA.
To protect minke whales from noise impacts, the Navy will implement
a shutdown if PSOs see minke whales approaching or within any
harassment zone. A PSO will be stationed at locations from which the
injury zone and behavioral zone for impact and vibratory pile driving
are visible and will implement shutdown if a whale approaches or enters
either zone. PSOs may be stationed on boats to observe a greater
portion of the shutdown zone than is visible from land-based locations.
With the implementation of monitoring, even if a whale enters an injury
zone, shutdown would occur before cumulative exposure to noise levels
that would result in PTS could occur. Because pile driving will be shut
down if whales are in the injury zone, no Level A harassment take has
been requested or will be authorized by NMFS. In summary, although
minke whales are rare in the project area, the Navy has requested and
NMFS has assumed one take of minke whale by Level B harassment each
year for the duration of the 5-year LOA.
Dall's Porpoise
Dall's porpoises are most abundant in the Strait of Juan de Fuca
and Haro Strait in the San Juan Islands area, but may be present in
Puget Sound year-round. Group size is usually two to four, although
larger groups are often sighted (Anderson et al., 2018). In Puget
Sound, the Navy has estimated that Dall's porpoise density is 0.045
animals/km\2\, although they have not been reported near NAVMAG Indian
Island in recent years and their occurrence in both the Salish Sea and
Puget Sound appears to be declining (Smultea et al., 2015; Evenson et
al., 2016; Jefferson et al., 2016). The Navy used the formula described
previously to calculate potential exposures. The formula estimated zero
takes. Due to the uncertainty of Dall's porpoise movements and the
large estimated harassment area during vibratory driving, the Navy
assumed, and NMFS concurred, that there will be three takes from work
on the fender piles and three takes from work on the steel piles each
year, by Level B harassment only.
To protect Dall's porpoises from noise impacts, the Navy will
implement a shutdown if PSOs see porpoises approaching or inside of any
harassment zone. A PSO will be stationed at locations from which the
harassment zones for impact and vibratory pile driving are visible and
will implement shutdown if a porpoise approaches or enters any zone.
With the implementation of monitoring, even if a Dall's porpoise enters
an injury zone, shutdown would occur before cumulative exposure to
noise levels that would result in PTS could occur. Because pile driving
will be shut down if porpoises are in the injury zone, no Level A
harassment take has been requested or will be authorized. In summary,
although Dall's porpoises are rare in the project area, the Navy has
requested, and NMFS has assumed take of 30 Dall's porpoises (6 per
year) by Level B harassment over the 5-year LOA period.
Harbor Porpoise
Harbor porpoises may be present in all major regions of Puget Sound
throughout the year. Group sizes ranging from 1 to 150 individuals were
reported in aerial surveys conducted from summer 2013 to spring 2016,
but mean group size was 1.7 animals (Smultea et al., 2017). The
estimated harbor porpoise density in inland waters is provided in table
10. The estimated exposure equation described previously was employed
resulting in 125 takes per year from steel vibratory driving. Take from
concrete/fender vibratory driving was calculated to be 0.05 exposures
per year. However, the Navy requested authorization of three takes per
year resulting from this activity as a precaution. Note that harbor
porpoises were not observed during pile driving monitoring at NAVMAG
Indian Island ammunition wharf from 2014 to 2016 (Navy, 2014; Navy
2016), but one was observed in 2020 within 200 m of the Wharf (Navy,
2021).
The Navy will implement a shutdown if porpoises are seen by PSOs
entering or within any harassment zone in order to protect harbor
porpoises from noise impacts. A monitor will be stationed at locations
from which the injury and behavioral harassment zones for impact and
vibratory pile driving are visible and will implement shutdown if a
porpoise approaches or enters any harassment zone. With the
implementation of monitoring, even if a harbor porpoise enters an
injury zone, shutdown would occur before cumulative exposure to noise
levels that would result in PTS could occur. Because pile driving will
be shut down if porpoises are in the injury zone, no Level A harassment
take has been requested or will be authorized. In summary, the Navy has
requested, and NMFS has assumed take of up to 640 harbor porpoises by
Level B harassment (3 per year for work on concrete/fender piles and
125 per year from for work on steel piles) for the duration of the 5-
year LOA.
California Sea Lion
California sea lions occur in Puget Sound from approximately August
to June. This species occasionally hauls out on the port security
barriers at NAVMAG Indian Island. These haulouts are adjacent to, in,
or near the Level B harassment zones, so exposure may occur if animals
move through Level B harassment zones during impact or vibratory pile
driving activities. California sea lions were not observed during
previous pile driving monitoring at NAVMAG Indian Island ammunition
wharf in 2014 to 2016 (Navy, 2014; Navy 2016), but one was observed
during 2020 (Navy, 2021). Although calculated take was zero, reflecting
their unlikely occurrence, Level B harassment exposures for the
concrete and fender pile driving were estimated as one sea lion per
year. Exposure estimates for vibratory driving of steel piles utilized
the estimated exposure equation, resulting in estimated take of 17.88
sea lions per year, which was rounded up to 18 sea lion takes per year.
Because a Level A harassment injury zone can be effectively monitored
and a shutdown zone will be implemented, no take by Level A harassment
is anticipated or will be authorized. Based on the aforementioned
considerations, NMFS is authorizing take of 95 California sea lions (1
per year by work on concrete/fender piles and 18 per year from work on
steel piles), by Level B harassment only, for the duration of the 5-
year LOA.
Steller Sea Lion
Steller sea lions occur seasonally in Puget Sound primarily from
September through May. Take may occur if these animals move through
Level B harassment zones during impact or vibratory pile driving.
Although their occurrence is unlikely, the Navy assumed that there will
be one Level B harassment take from concrete and fender pile driving
per year. Level B harassment exposure estimates for steel piles
utilized the exposure estimate equation described previously using
densities from table 10 resulting in an estimated take of 5.16 animals
per year

[[Page 5686]]

rounded to 5 takes. Steller sea lions were not observed during previous
monitoring at NAVMAG Indian Island ammunition wharf in 2014 to 2016
(Navy, 2014, 2016, 2021). Because the Level A harassment injury zone is
small under all driving scenarios, it can be effectively monitored. A
shutdown will be implemented if animals approach the injury zone and no
exposure to Level A harassment noise levels is anticipated at any
location. In summary, the Navy has requested, and NMFS is authorizing
take of up to 30 Steller sea lions (five for work on concrete/fender
piles over 5 years and 25 for work on steel piles over 5 years) by
Level B harassment for the duration of the 5-year LOA.
Northern Elephant Seal
Northern elephant seals are considered rare visitors to Puget
Sound. No regular elephant seal haul outs occur in Puget Sound,
although individual elephant seals have been detected hauling out for 2
to 4 weeks to molt, usually during the spring and summer. Haul out
locations are unpredictable, but only one record is known for a Navy
installation. The Navy reports a density of 0.0 in Puget Sound (Navy,
2020). However, because there are occasional sightings in Puget Sound,
the Navy assumed that there will be one exposure from concrete/fender
driving and one exposure from steel driving during each year of the
LOA. Because elephant seals are rare in the project area and monitoring
and shutdown measures will be implemented, no Level A harassment
exposure is anticipated. In summary, the Navy has requested, and NMFS
is authorizing take of up to 10 northern elephant seals (2 per year) by
Level B harassment for the duration of the 5-year LOA.
Pacific Harbor Seal
Pacific harbor seals are expected to occur year-round at NAVMAG
Indian Island. This species hauls out regularly at Rat Island adjacent
to the northeastern end of NAVMAG Indian Island year-round with a dip
in numbers in winter months. Harbor seals are most likely to be exposed
to Level A harassment noise when they swim through the area near the
Ammunition Wharf during impact pile driving (182 m for steel impact
driving and 29 m for concrete impact driving). Pile driving will shut
down whenever a seal is detected by monitors nearing or within the
injury zone, but harbor seals can dive for up to 15 minutes and may not
be detected until they have been within the injury zone for a
sufficient period of time to incur PTS. For most pile driving
activities, exposure of harbor seals to pile driving noise will be
limited to Level B harassment. Level B harassment exposure estimates
for vibratory driving were determined using the formula of Level B
harassment zone area x density x days of vibratory pile driving. The
Navy has calculated take by Level B harassment of 1,710 harbor seals
during vibratory installation of fender piles (342 per year), and 1,530
harbor seals during vibratory pile driving of steel piles (306 per
year). Therefore, the Navy has requested, and NMFS is authorizing take
of up to 3,240 Pacific harbor seals by Level B harassment for the
duration of the LOA. In addition, the Navy has requested and NMFS is
authorizing up to 135 harbor seal takes (27 per year) by Level A
harassment during the 5-year LOA. This is based on the daily average of
site-specific observations from several seasons of pile driving
monitoring at the Ammunition Wharf and weekly surveys conducted at
NAVMAG Indian Island provided above. Observations of seals within 29 m
would be calculated to a mean of seals per day within the Level A
harassment zone. (Using the density value would underestimate the
number of seals in that small zone.) This assumption results in 11
Level A harassment takes per year (0.5 seals/day for 22 days) for
impact driving of concrete piles (55 takes for 5 years) and 16 takes
per year (8 seals/day for 2 days) for impact driving of steel piles (80
takes over 5 years).
The annual and total number of takes that may be authorized by NMFS
are shown in table 11 and table 12.

Table 11--Annual Take by Level A and Level B Harassment and Percentage of Stock Abundance for Authorized Species/Stocks
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exposures
---------------------------------------------------------------------------------------------------------------
24-Inch concrete piles and/or 36-Inch steel piles (up to 2
14-in/18.75-inch fender piles piles/year) Percent of
Species (up to 22 piles/year) -------------------------------- stock/distinct
-------------------------------- Total annual Population population
Level B impact Level B impact Level A impact segment (DPS)
or vibratory Level A impact or vibratory per year
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray Whale.............................. 0 0 1 0 1 26,960 <0.01
Minke Whale............................. 0 0 1 0 1 915 <0.01
Dall's Porpoise......................... 3 0 3 0 6 16,498 <0.01
Harbor Porpoise......................... 3 0 125 0 128 11,233 1.11
California Sea Lion..................... 1 0 18 0 19 257,606 <0.01
Steller Sea Lion........................ 1 0 5 0 6 43,201 <0.01
Northern Elephant Seal.................. 1 0 1 0 2 187,386 <0.01
Pacific Harbor Seal..................... 342 11 306 16 675 11,036 6.11
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 12--Total 5-Year Authorized Takes (Level A Harassment and Level B Harassment)
----------------------------------------------------------------------------------------------------------------
Level A Level B
Species Stock harassment harassment Total 5-year
----------------------------------------------------------------------------------------------------------------
Gray Whale............................ Eastern North Pacific... .............. 5 5
Minke Whale........................... California/Oregon/ .............. 5 5
Washington.
Dall's Porpoise....................... California/Oregon/ .............. 30 30
Washington.
Harbor Porpoise....................... Washington Inland Waters .............. 640 640
California Sea Lion................... United States........... .............. 95 95
Steller Sea Lion...................... Eastern United States... .............. 30 30
Northern Elephant Seal................ California Breeding..... .............. 10 10
Pacific Harbor Seal................... Washington Northern 135 3,240 3,375
Inland Waters.
----------------------------------------------------------------------------------------------------------------

[[Page 5687]]

Mitigation

In order to issue an LOA under section 101(a)(5)(A) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
In order to limit impacts to marine mammals, vibratory installation
will be used by the Navy to the extent practicable to drive steel piles
to minimize high sound pressure levels associated with impact pile
driving. Jetting will also be used to the extent possible to install
concrete piles in order to minimize higher sound pressure levels
associated with impact pile driving. Note that a draft monitoring plan
will be submitted in the spring at least 90 days prior to the start of
the in-water work period (October) during the first year of the project
(2024). The final monitoring plan will be prepared and submitted to
NMFS within 30 days following receipt of comments on the draft plan
from NMFS.
The Navy will ensure that construction supervisors and crews, the
monitoring team, and relevant Navy staff are trained and prior to the
start of construction activity subject to this rule, so that
responsibilities, communication procedures, monitoring protocols, and
operational procedures are clearly understood. New personnel joining
during the project will be trained prior to commencing work.

Shutdown Zones

Before the commencement of in-water construction activities, the
Navy will establish shutdown zones for all impact and pile driving
activities. The purpose of a shutdown zone is generally to define an
area within which shutdown of the activity would occur upon sighting of
a marine mammal (or in anticipation of an animal entering the defined
area). Shutdown zones will vary based on the activity type and marine
mammal hearing group but will include all areas where the underwater
sound pressure levels are anticipated to equal or exceed the Level A
harassment (injury) criteria for marine mammals. The shutdown zone will
always be a minimum of 10 m to prevent injury from physical interaction
of marine mammals with construction equipment. The Level A harassment
zones are based on the maximum calculated radius for pinnipeds and
cetaceans, specifically harbor porpoises, during installation of 36-
inch steel piles and 24-inch concrete piles with impact techniques, and
the Level B harassment zone for impact and vibratory pile installation.
Injury to harbor seals from noise due to impact and vibratory pile
driving and physical interaction with construction equipment will be
minimized to the extent practicable by implementing a shutdown if the
animals are observed to be swimming towards the injury zone. For steel
pile impact driving, to the extent possible, PSOs will initiate
shutdown when harbor seals enter the injury zone; however, because of
the size of the zone and the inherent difficulty in monitoring harbor
seals, a highly mobile species, it may not be practical, which is why
Level A harassment take has been analyzed.
The taking by serious injury or death of any of the species listed
in table 12 or any taking of any other species of marine mammal is
prohibited. The Navy will establish shutdown zones for all marine
mammals for which incidental take has been authorized but the
authorized number of takes has been met. These zones are equivalent to
the Level B harassment zones for each activity. If such animals are
sighted within the vicinity of the project areas and are approaching
the Level B harassment zone, the Navy will shut down the pile driving
equipment to avoid possible take of these species.
Pile driving activities will cease if any cetaceans authorized for
take are seen approaching or entering any harassment zone. Work will be
halted and delayed until either the animal has voluntarily left and
been visually confirmed beyond the injury zone or visual portion of the
Level B harassment zone or 15 minutes have passed without re-detection
of the animal. Additionally, if a shutdown zone is obscured by fog or
poor lighting conditions, pile driving will not be initiated until the
entire shutdown zone is visible.
If a pinniped approaches or enters a shutdown zone during pile
impact or vibratory driving, work will be halted and delayed until
either the animal has voluntarily left and been visually confirmed
beyond the shutdown zone or 15 minutes have passed without re-detection
of the animal. If a pinniped is observed in the Level B harassment
zone, but not approaching or entering the shutdown zone, the work will
be allowed to proceed without cessation of pile driving. Marine mammal
behavior will be monitored and documented.

Table 13--Shutdown and Harassment Zones
----------------------------------------------------------------------------------------------------------------
Shutdown zone (m) Level B
Pile size and type ------------------------------------------------ harassment zone
Cetaceans Harbor seal Sea lion (m)
----------------------------------------------------------------------------------------------------------------
24-inch Concrete Impact..................... 90 30 10 90
36-inch Steel Impact........................ 400 200 20 400
36-inch Steel Vibratory..................... 13,600 10 10 13,600

[[Page 5688]]

Fender Vibratory............................ 1,000 10 10 1,000
----------------------------------------------------------------------------------------------------------------

At minimum, the shutdown zone for all hearing groups and all
activities will be 10 m. For in-water heavy machinery work other than
pile driving (e.g., standard barges, etc.), if a marine mammal comes
within 10 m, operations will cease and vessels will reduce speed to the
minimum level required to maintain steerage and safe working
conditions. This type of work could include, for example, the movement
of the barge to the pile location or positioning of the pile on the
substrate via a crane.

Pre-Activity Monitoring

Prior to the start of daily in-water construction activity, or
whenever a break in pile driving of 30 minutes or longer occurs, PSOs
will observe the shutdown and Level B harassment zones for a period of
30 minutes. The shutdown zone will be considered cleared when a marine
mammal has not been observed within the zone for that 30-minute period.
If a marine mammal is observed within the shutdown zones listed in
table 13, pile driving activity would be delayed or halted. If pile
driving is delayed or halted due to the presence of a marine mammal,
the activity will not commence or resume until either the animal has
voluntarily exited and been visually confirmed beyond the shutdown
zones or 15 minutes have passed without re-detection of the animal. If
work ceases for more than 30 minutes, the pre-activity monitoring of
the shutdown zones will commence. A determination that the shutdown
zone is clear must be made during a period of good visibility (i.e.,
the entire shutdown zone and surrounding waters must be visible to the
naked eye).
Monitoring will take place from 30 minutes prior to initiation
through 30 minutes post-completion of pile driving. Prior to the start
of pile driving, the shutdown zone will be monitored for 30 minutes to
ensure that the shutdown zone is clear of marine mammals. Pile driving
will only commence once PSOs have declared the shutdown zone clear of
marine mammals.

Soft Start

Soft-start procedures are used to provide additional protection to
marine mammals by providing warning and/or giving marine mammals a
chance to leave the area prior to the hammer operating at full
capacity. For impact pile driving, contractors will be required to
provide an initial set of three strikes from the hammer at reduced
energy, followed by a 30-second waiting period, then two subsequent
reduced-energy strike sets. Soft start will be implemented at the start
of each day's impact pile driving and at any time following cessation
of impact pile driving for a period of 30 minutes or longer.

Bubble Curtain

Should use of 36-inch steel piles be necessary, a bubble curtain
will be used for all impact driving of steel piles to attenuate noise.
Because of the relatively low underwater noise levels associated with
impact driving of concrete piles, bubble curtains are not required for
impact installation of concrete piles.
A bubble curtain will be employed during impact installation or
proofing of steel pile where water depths are greater than 0.67 m. A
noise attenuation device will not be required during vibratory pile
driving. If a bubble curtain or similar measure is used, it will
distribute air bubbles around 100 percent of the piling perimeter for
the full depth of the water column. A bubble curtain is usually a ring
or series of stacked rings that are placed around a pile along the
pile's entire length under water. The rings are made of tubing which
has small puncture holes through which compressed air is pumped. As the
compressed air bubbles flow from the tubing, they create an air barrier
that impedes the sound produced during pile driving. Any other
attenuation measure will be required to provide 100 percent coverage in
the water column for the full depth of the pile. The lowest bubble ring
would be in contact with the mudline for the full circumference of the
ring. The weights attached to the bottom ring will ensure 100 percent
mudline contact. No parts of the ring or other objects will prevent
full mudline contact.
NMFS has determined that the required mitigation measures provide
the 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.

Monitoring and Reporting

In order to issue an LOA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;

[[Page 5689]]

<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
<bullet> Mitigation and monitoring effectiveness.
The Navy will submit a Marine Mammal Monitoring Plan to NMFS for
approval at least 90 days in advance of the start of the first year of
construction.

Visual Monitoring

<bullet> Monitoring must be conducted during pile driving
activities by qualified, NMFS-approved PSOs, in accordance with the
following conditions: PSOs must be independent of the activity
contractor (for example, employed by a subcontractor) and have no other
assigned tasks during monitoring periods.
<bullet> At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization.
<bullet> Other PSOs may substitute other relevant experience,
education (degree in biological science or related field), or training
for prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization.
<bullet> Where a team of three or more PSOs is required, a lead PSO
or monitoring coordinator must be designated. The lead PSO must have
prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization.
<bullet> PSOs must be approved by NMFS prior to beginning any
activity subject to this rule.
All PSOs shall be trained in marine mammal identification and
behaviors, and satisfy the following criteria:
<bullet> Visual acuity in both eyes (correction is permissible)
sufficient to discern moving targets at the water's surface with
ability to estimate target size and distance. Use of binoculars or
spotting scope may be necessary to correctly identify the target.
<bullet> Advanced education in biological science, wildlife
management, mammalogy or related field (Bachelor's degree or higher is
preferred).
<bullet> Experience and ability to conduct field observations and
collect data according to assigned protocols (this may include academic
experience).
<bullet> Experience or training in the field identification of
marine mammals (cetaceans and pinnipeds).
<bullet> Sufficient training, orientation or experience with vessel
operation and pile driving operations to provide for personal safety
during observations.
<bullet> Writing skills sufficient to prepare a report of
observations. Reports should include such information as the number,
type, and location of marine mammals observed; the behavior of marine
mammals in the area of potential sound effects during construction;
dates and times when observations and in-water construction activities
were conducted; dates and times when in-water construction activities
were suspended because of marine mammals, etc.
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real time information on marine mammals
observed in the area and necessary actions, as needed.
During pile driving activities, the Navy will assign PSOs to
monitor the identified harassment zones. The number and placement of
PSOs will vary depending upon the pile size, location, and number of
piles being installed or removed. In order to effectively monitor the
shutdown and Level B harassment zones, PSOs will be positioned at the
best practicable vantage points, taking into consideration security,
safety, and space limitations. The PSOs will be stationed on the pier,
vessel, on shore, or on the pile driving barge in a location that will
provide adequate visual coverage for the identified harassment zones.
During pile driving, at least one PSO will be stationed on a vessel if
practicable.
Monitoring will be conducted 30 minutes before, during, and 30
minutes after all in water construction activities. In addition, PSOs
will record all incidents of marine mammal occurrence, regardless of
distance from activity, and will document any behavioral reactions in
concert with distance from piles being driven or removed.

Reporting

The Navy must submit a draft monitoring report to NMFS within 90
calendar days of the completion of each construction year. A draft
comprehensive 5-year summary report must also be submitted to NMFS
within 90 days of the end of the project. The reports must detail the
monitoring protocol and summarize the data recorded during monitoring.
Final annual reports and the final comprehensive report must be
prepared and submitted within 30 days following resolution of any NMFS
comments on the draft report. If no comments are received from NMFS
within 30 days of receipt of the draft report, the report must be
considered final. If comments are received, a final report addressing
NMFS comments must be submitted within 30 days after receipt of
comments. The marine mammal report will include an overall description
of work completed, a narrative regarding marine mammal sightings, and
associated PSO data sheets. Specifically, the report will include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period, including: (a) How many and what type of piles were
driven or removed and the method (i.e., impact or vibratory); and (b)
the total duration of time for each pile (vibratory driving) number of
strikes for each pile (impact driving);
<bullet> PSO locations during marine mammal monitoring; and
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance.
In addition, for each observation of a marine mammal, the marine
mammal report will include the following information:
<bullet> Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting;
<bullet> Time of sighting;
<bullet> Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
<bullet> Distance and location of each observed marine mammal
relative to the pile being driven for each sighting;
<bullet> Estimated number of animals (min/max/best estimate);
<bullet> Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.);
<bullet> Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
<bullet> Number of marine mammals detected within the harassment
zones, by species; and
<bullet> Detailed information about implementation of any
mitigation (e.g., shutdowns and delays), a description of specified
actions that ensued, and

[[Page 5690]]

resulting changes in behavior of the animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
reports will constitute the final reports. If comments are received, a
final report addressing NMFS' comments will be required to be submitted
within 30 days after receipt of comments. All PSO datasheets and/or raw
sighting data will be submitted with the draft marine mammal report.

Reporting of Injured or Dead Marine Mammals

In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the Navy must report the
incident to NMFS Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#1a4a4834534e4a34577574736e756873747d487f6a75686e695a74757b7b347d756c"><span class="__cf_email__" data-cfemail="c29290ec8b9692ec8fadacabb6adb0abaca590a7b2adb0b6b182acada3a3eca5adb4">[email&#160;protected]</span></a>), NMFS (301-427-8401) and to the
NMFS Northwest Regional Stranding Coordinator as soon as feasible. If
the death or injury was clearly caused by the specified activity, the
Navy must immediately cease the specified activities until NMFS OPR is
able to review the circumstances of the incident and determine what, if
any, additional measures are appropriate to ensure compliance with the
terms of this rule. The Navy will not resume their activities until
notified by NMFS. The report must include the following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
General circumstances under which the animal was discovered.

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
taken through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the discussion of our analysis applies to the
species listed in table 12, given that many of the anticipated effects
of this project on different marine mammal stocks are expected to be
relatively similar in nature. Where there are meaningful differences
among species, stocks, or groups of species, anticipated responses of
individual animals to activities, and/or impacts of expected take on
the population (due to differences in population status, or impacts on
habitat), the outliers are described independently in the analysis
below.
Pile driving activities associated with the project, as outlined
previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level A and Level B harassment from underwater sounds generated by
pile driving. Potential takes could occur if marine mammals are present
in zones ensonified above the thresholds for Level A and Level B
harassment, identified above, while activities are underway.
No serious injury or mortality would be expected even in the
absence of the mitigation measures. During all impact driving,
implementation of soft-start procedures and monitoring of established
shutdown zones will be required, significantly reducing the possibility
of injury. Given sufficient notice through use of soft-start (for
impact driving), marine mammals are expected to move away from an
irritating sound source before it becomes potentially injurious. In
addition, PSOs will be stationed within the project area whenever pile
driving activities are underway. Depending on the activity, the Navy
will employ land-based PSOs to ensure all monitoring and shutdown zones
are properly observed. For monitoring of larger harassment zones, the
Navy will employ vessel-based PSOs if practicable. Some harbor seals
could be exposed to Level A harassment levels of noise when they swim
through the area near the Ammunition Wharf during impact pile driving.
Pile driving will shut down whenever a seal is detected by PSOs nearing
or within the injury zone, but harbor seals can dive for up to 15
minutes and may not be detected. Any animals that experience PTS would
likely only receive slight PTS, i.e., minor degradation of hearing
capabilities within regions of hearing that align most completely with
the frequency range of the energy produced by pile driving (i.e., the
low-frequency region below 2 kHz), not severe hearing impairment or
impairment in the range of greatest hearing sensitivity. If hearing
impairment does occur, it is most likely that the affected animal would
lose a few dBs in its hearing sensitivity, which, in most cases, is not
likely to meaningfully affect its ability to forage and communicate
with conspecifics. As described above, we expect that, given sufficient
notice through use of soft-start, marine mammals would be likely to
move away from a sound source that represents an aversive stimulus,
especially when the sound source is at levels that would be expected to
result in PTS. For most pile driving activities, exposure of harbor
seals to pile driving noise will be minimized to short-term behavioral
harassment (Level B harassment).
Exposures to elevated sound levels produced during pile driving
activities may cause behavioral disturbance of some individuals, but
the behavioral disturbances are expected to be mild and temporary.
However, as described previously, the mitigation and monitoring
measures are expected to further reduce the likelihood of injury as
well as reduce behavioral disturbances.
Effects on individuals that are taken by Level B harassment, as
enumerated in the Estimated Take section, on the basis of reports in
the literature as well as monitoring from other similar activities,
will likely be limited to reactions such as increased swimming speeds,
increased surfacing time, or decreased foraging (if such activity were
occurring) (e.g., Thorson and Reyff, 2006). Most likely, individual
animals will simply move away from the sound source and be temporarily
displaced from the areas of pile driving, although

[[Page 5691]]

even this reaction has been observed primarily only in association with
impact pile driving. The pile driving activities analyzed here are
similar to, or less impactful than, numerous other construction
activities conducted along both Atlantic and Pacific coasts, which have
taken place with no known long-term adverse consequences from
behavioral harassment. These reactions and behavioral changes are
expected to subside quickly when the exposures cease. Level B
harassment will be minimized through use of mitigation measures
described herein, and, if sound produced by project activities is
sufficiently disturbing, animals are likely to simply avoid the area
while the activity is occurring, particularly as the project is located
on a waterfront with vessel traffic from both Navy and non-Navy
activities.
The project is also not expected to have significant adverse
effects on any marine mammal habitat. The Navy's planned pile driving
activities and associated impacts will occur within a limited portion
of the confluence of the Puget Sound-Port Townsend Bay area. The
project activities will not modify existing marine mammal habitat since
the project will occur within the same footprint as existing marine
infrastructure. Impacts to the immediate substrate during installation
and removal of piles are anticipated, but these would be limited to
minor, temporary suspension of sediments, which could impact water
quality and visibility for a short amount of time, but which would not
be expected to have any effects on individual marine mammals. The
nearshore and intertidal habitat where the project will occur is an
area of consistent vessel traffic from Navy and non-Navy vessels, and
some local individuals would likely be somewhat habituated to the level
of activity in the area, further reducing the likelihood of more severe
impacts. The closest pinniped haulout, Rat Island, is used by harbor
seals and is 2.4 km from the Ammunition Wharf. However, for the reasons
described immediately above (including the nature of expected responses
and the duration of the project), impacts to reproduction or survival
of individuals are not anticipated, and are not expected to have
effects on the species or stock. There are no other biologically
important areas for marine mammals near the project area.
Impacts to marine mammal prey species are expected to be minor and
temporary. Overall, the area impacted by the project is very small
compared to the available habitat in Port Townsend Bay and larger Puget
Sound. The most likely impact to prey will be temporary behavioral
avoidance of the immediate area. During pile driving activities, it is
expected that some fish and marine mammals would temporarily leave the
area of disturbance, thus impacting marine mammals' foraging
opportunities in a limited portion of the foraging range; but, because
of the short duration of the activities and the relatively small area
of the habitat that may be affected, the impacts to marine mammal
habitat are not expected to cause significant or long-term negative
consequences.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
<bullet> No mortality is anticipated or authorized;
<bullet> No Level A harassment is anticipated or authorized with
the exception of limited take of harbor seals;
<bullet> Anticipated incidents of Level B harassment consist of, at
worst, temporary modifications in behavior;
<bullet> The required mitigation measures (i.e., shutdown zones)
are expected to be effective in reducing the effects of the specified
activity;
<bullet> Minimal impacts to marine mammal habitat/prey are
expected; and
<bullet> There are no known biologically important areas in the
vicinity of the project, with the exception of one harbor seal haulout
(Rat Island). However, as described above, exposure to the work
conducted in the vicinity of the haulout is not expected to impact the
reproduction or survival of any individual seals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the planned
activity will have a negligible impact on all affected marine mammal
species or stocks.

Small Numbers

As noted previously, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
Take of eight marine mammal stocks authorized for take will
comprise no more than 6.11 percent of a single stock abundance (Pacific
harbor seal) as shown in table 11. The number of animals authorized to
be taken from these stocks would be considered small relative to the
relevant stock's abundances even if each estimated take occurred to a
new individual, which is an unlikely scenario. Based on the analysis
contained herein of the planned activity (including the mitigation and
monitoring measures) and the anticipated take of marine mammals, NMFS
finds that small numbers of marine mammals will be taken relative to
the population size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks will not
have an unmitigable adverse impact on the availability of such species
or stocks for taking for subsistence purposes.

Adaptive Management

The regulations governing the take of marine mammals incidental to
Navy construction activities will contain an adaptive management
component. The reporting requirements associated with this rule are
designed to provide NMFS with monitoring data from completed projects
to allow consideration of whether any changes are appropriate. The use
of adaptive management allows NMFS to consider new information from
different sources to determine (with input from the Navy regarding
practicability) on an annual or biennial basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be

[[Page 5692]]

considered through the adaptive management process: (1) Results from
monitoring reports, as required by MMPA authorizations; (2) results
from general marine mammal and sound research; and (3) any information
which reveals that marine mammals may have been taken in a manner,
extent, or number not authorized by these regulations or LOAs issues
pursuant to these regulations.

Endangered Species Act

Section 7(a)(2) of the ESA of 1973 (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 rules, NMFS consults
internally whenever we propose to authorize take for endangered or
threatened species, in this case with the NMFS West Coast Regional
Office.
No incidental take of ESA-listed species is authorized or expected
to result from this activity. Therefore, NMFS has determined that
consultation under section 7 of the ESA is not required for this
action.

Classification

Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. The Navy is the sole entity that will be subject to the
requirements in these regulations, and the Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received regarding this
certification or on the economic impacts of the rule more generally. As
a result, a regulatory flexibility analysis is not required and none
has been prepared.
This rule does not contain a collection-of-information requirement
subject to the provisions of the Paperwork Reduction Act (PRA) because
the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

Administrative practice and procedure, Exports, Fish, Imports,
Marine mammals, Penalties, Reporting and recordkeeping requirements,
Transportation, Wildlife.

Dated: January 23, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For reasons set forth in the preamble, NMFS revises subpart I of 50
CFR part 217 as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

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

0
2. Revise subpart I, consisting of Sec. Sec. 217.80 through 217.89, to
read as follows:
Subpart I--Taking Marine Mammals Incidental to U.S. Navy Construction
at the Naval Magazine Indian Island Ammunition Wharf, Puget Sound,
Washington
Sec.
217.80 Specified activity and geographical region.
217.81 Effective dates.
217.82 Permissible methods of taking.
217.83 Prohibitions.
217.84 Mitigation requirements.
217.85 Requirements for monitoring and reporting.
217.86 Letters of Authorization.
217.87 Renewals and modifications of Letters of Authorization.
217.88-217.89 [Reserved]

Subpart I--Taking Marine Mammals Incidental to U.S. Navy
Construction at the Naval Magazine Indian Island Ammunition Wharf,
Puget Sound, Washington

Sec. 217.80 Specified activity and geographical region.

(a) Regulations in this subpart apply only to the U.S. Navy (Navy)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occur in the areas
outlined in paragraph (b) of this section and that occur incidental to
construction activities, including maintenance and replacement of
piles, at the Naval Magazine Indian Island Ammunition Wharf, Puget
Sound, Washington.
(b) The taking of marine mammals by the Navy may be authorized in a
Letter of Authorization (LOA) only if it occurs at the Naval Magazine
Indian Island Ammunition Wharf, Puget Sound, Washington.

Sec. 217.81 Effective dates.

Regulations in this subpart are effective from October 1, 2024,
until September 30, 2029.

Sec. 217.82 Permissible methods of taking.

Under an LOA issued pursuant to Sec. 216.106 of this chapter and
Sec. 217.86, the Holder of the LOA (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.80 (b) by harassment associated with
construction activities, provided the activity is in compliance with
all terms, conditions, and requirements of the regulations in this
subpart and the applicable LOA.

Sec. 217.83 Prohibitions.

(a) Except for the takings contemplated in Sec. 217.82 and
authorized by a LOA issued under Sec. Sec. 216.106 of this chapter and
217.86, it is unlawful for any person to do any of the following in
connection with the activities described in Sec. 217.80:
(1) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. 216.106 of
this chapter and Sec. 217.86;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS
determines such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]

Sec. 217.84 Mitigation requirements.

(a) When conducting the activities identified in Sec. 217.80(a),
the mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and Sec. Sec. 217.86 or 217.87 must be
implemented. These mitigation measures include but are not limited to:
(1) A copy of any issued LOA must be in the possession of the Navy,
its designees, and work crew personnel operating under the authority of
the issued LOA;
(2) The Navy must follow mitigation procedures as described in
Sec. 217.84. Protected Species Observers (PSO) must monitor designated
harassment zones

[[Page 5693]]

described in the LOA to the maximum extent practicable based on daily
visibility conditions.
(3) The Navy must ensure that construction supervisors and crews,
the PSO team, and relevant Navy staff are trained prior to the start of
construction activity subject to this rule, so that responsibilities,
communication procedures, monitoring protocols, and operational
procedures are clearly understood. New personnel joining during the
project must be trained prior to commencing work;
(4) The Navy must avoid direct physical interaction with marine
mammals during construction activity. If a marine mammal comes within
10 m of such activity, operations must cease and vessels must reduce
speed to the minimum level required to maintain steerage and safe
working conditions, as necessary, to avoid direct physical interaction;
(5) For all pile driving activity, the Navy must implement shutdown
zones with radial distances as identified in a LOA issued under Sec.
216.106 of this chapter and Sec. Sec. 217.86 or 217.87. If a marine
mammal comes within or approaches the shutdown zone, pile driving
activity must cease;
(6) The Navy must shut down in-water activities when cetaceans are
observed approaching or within any harassment zone;
(7) The Navy must use soft start techniques when impact pile
driving. Soft start requires an initial set of three strikes from the
hammer at reduced energy, followed by a 30-second waiting period. Then
two subsequent reduced-energy strike sets would occur. A soft start
must be implemented at the start of each day's impact pile driving and
at any time following cessation of impact pile driving for a period of
30 minutes or longer;
(8) The Navy must employ bubble curtain systems during impact
driving of 36-in steel piles except under conditions where the water
depth is less than 0.67 meters (2 feet) in depth. Bubble curtains must
meet the following requirements;
(i) The bubble curtain must distribute air bubbles around 100
percent of the piling perimeter for the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the mudline
and/or rock bottom for the full circumference of the ring, and the
weights attached to the bottom ring shall ensure 100 percent mudline
and/or rock bottom contact. No parts of the ring or other objects shall
prevent full mudline and/or rock bottom contact; and
(iii) The bubble curtain must be operated such that there is equal
balancing of air flow to all bubblers;
(9) The Navy must deploy PSOs as indicated in its Marine Mammal
Monitoring Plan that has been approved by NMFS;
(10) For all pile driving activities, land-based PSOs must be
stationed at the best vantage points practicable to monitor for marine
mammals and implement shutdown/delay procedures. At least one vessel-
based PSO must be employed when practicable. Additional PSOs must be
added if warranted by site conditions and/or the level of marine mammal
activity in the area;
(11) Monitoring must take place from 30 minutes prior to initiation
of pile driving activity (i.e., pre-start clearance monitoring) through
30 minutes post-completion of pile driving activity. Pre-activity
monitoring must be conducted for 30 minutes to ensure that the shutdown
zone is clear of marine mammals, and pile driving may only commence
when PSOs have declared the shutdown zone clear of marine mammals;
(12) In the event of a delay or shutdown of activity resulting from
marine mammals in the shutdown zone, animals must be allowed to remain
in the shutdown zone (i.e., must leave of their own volition) and their
behavior must be monitored and documented. If a marine mammal is
observed within the shutdown zone, a soft start cannot proceed until
the animal has left the zone or has not been observed for 15 minutes.
Monitoring must occur throughout the time required to drive a pile;
(13) If work ceases for more than 30 minutes, the pre-activity
monitoring of the shutdown zones must commence. A determination that
the shutdown zone is clear must be made during a period of good
visibility;
(14) If a marine mammal approaches or enters the shutdown zone, all
pile driving activities at that location must be halted. If pile
driving is halted or delayed due to the presence of a marine mammal,
the activity may not commence or resume until either the animal has
voluntarily left and been visually confirmed beyond the shutdown zone
or 15 minutes have passed without re-detection of the animal;
(15) Pile driving activity must be halted upon observation of a
species entering or within the harassment zone for either a species for
which incidental take is not authorized or a species for which
incidental take has been authorized but the authorized number of takes
has been met; and
(16) Trained PSOs must be placed at the best vantage point(s)
practicable to monitor for marine mammals and implement shutdown or
delay procedures when applicable through communication with the
equipment operator.
(b) [Reserved]

Sec. 217.85 Requirements for monitoring and reporting.

(a) The Navy must submit a Marine Mammal Monitoring Plan to NMFS
for approval at least 90 days before the start of construction and
abide by the Plan if approved.
(b) The Navy must deploy PSOs as indicated in its approved Marine
Mammal Monitoring Plan.
(c) Monitoring must be conducted by qualified, NMFS-approved PSOs,
in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods;
(2) At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
(3) Other PSOs may substitute other relevant experience, education
(degree in biological science or related field), or training for prior
experience performing the duties of a PSO during construction activity
pursuant to a NMFS-issued incidental take authorization;
(4) Where a team of three or more PSOs are required, a lead PSO or
monitoring coordinator must be designated. The lead PSO must have prior
experience performing the duties of a PSO during construction activity
pursuant to a NMFS-issued incidental take authorization; and
(5) PSOs must be approved by NMFS prior to beginning any activity
subject to these regulations.
(d) PSOs must be trained in marine mammal identification and
behaviors.
(e) The Navy must monitor the Level B harassment zones (areas where
SPLs are equal to or exceed the 160 dB root-mean-squared (rms)
threshold for impact driving and the 120 dB rms threshold during
vibratory pile driving) to the maximum extent practicable and the
shutdown zones.
(f) The Navy must coordinate with the Center for Whale Research,
Orca network, and NMFS to avoid noise exposure of southern resident
killer whales. The Navy must shut down in-water activities when
southern resident killer whales are observed or reported within or
approaching any harassment zone.

[[Page 5694]]

(g) The Navy must submit a draft monitoring report to NMFS within
90 calendar days of the completion of each construction year. A draft
comprehensive 5-year summary report must also be submitted to NMFS
within 90 days of the end of the project. The reports must detail the
monitoring protocol and summarize the data recorded during monitoring.
Final annual reports and the final comprehensive report must be
prepared and submitted within 30 days following resolution of any NMFS
comments on the draft report. If no comments are received from NMFS
within 30 days of receipt of the draft report, the report must be
considered final. If comments are received, a final report addressing
NMFS comments must be submitted within 30 days after receipt of
comments. The reports must contain the informational elements described
at minimum below including:
(1) Dates and times (begin and end) of all marine mammal
monitoring;
(2) Construction activities occurring during each daily observation
period, including how many and what type of piles were driven or
removed, by what method (i.e., impact or vibratory), the total duration
of driving time for each pile (vibratory driving), and number of
strikes for each pile (impact driving);
(3) Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), Beaufort sea state, and any other relevant weather
conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance (if less
than the harassment zone distance);
(4) Upon observation of a marine mammal, the following information
should be collected:
(i) PSO who sighted the animal, observer location, and activity at
time of sighting:
(ii) Time of sighting;
(iii) Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
(iv) Distances and bearings of each marine mammal observed in
relation to the pile being driven for each sighting (if pile driving
was occurring at time of sighting);
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.);
(vii) Animal's closest point of approach and estimated time spent
within the harassment zone;
(viii) Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses to the activity (e.g., no response
or changes in behavioral state such as ceasing feeding, changing
direction, flushing, or breaching);
(ix) Detailed information about any implementation of any
mitigation (e.g., shutdowns and delays), a description of specific
actions that ensued, and resulting changes in the behavior of the
animal, if any; and
(x) All PSO datasheets and/or raw sightings data.
(h) In the event that personnel involved in the construction
activities discover an injured or dead marine mammal, the Navy must
report the incident to NMFS Office of Protected Resources (OPR), and to
the West Coast Regional Stranding Coordinator, as soon as feasible. If
the death or injury was caused by the specified activity, the Navy must
immediately cease the specified activities until NMFS OPR is able to
review the circumstances of the incident and determine what, if any,
additional measures are appropriate to ensure compliance with the terms
of this rule and the LOA issued under Sec. 216.106 of this chapter and
Sec. 217.86. The Navy must not resume their activities until notified
by NMFS. The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the
animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the
animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s);
and
(6) General circumstances under which the animal was discovered.

Sec. 217.86 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these
regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Navy must
apply for and obtain a modification of the LOA as described in Sec.
217.87.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the
Federal Register within 30 days of a determination.

Sec. 217.87 Renewals and modifications of Letters of Authorization.

(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.86 for the activity identified in Sec. 217.80(a) may be renewed or
modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting that do not change the findings made for the regulations or
result in no more than a minor change in the total estimated number of
takes (or distribution by species or years), NMFS may publish a notice
of proposed LOA in the Federal Register, including the associated
analysis of the change, and solicit public comment before issuing the
LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.86 for the activity identified in Sec. 217.80 (a) may be modified
by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with Navy regarding
the practicability of the modifications) if doing so creates a
reasonable likelihood of more effectively accomplishing the

[[Page 5695]]

goals of the mitigation and monitoring set forth in the preamble for
these regulations;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
must publish a notice of proposed LOA in the Federal Register and
solicit public comment; and
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in a LOA issued pursuant to Sec. Sec. 216.106 of
this chapter and 217.86, a LOA may be modified without prior notice or
opportunity for public comment. Notification will be published in the
Federal Register within 30 days of the action.

Sec. Sec. 217.88-217.89 [Reserved]

[FR Doc. 2024-01558 Filed 1-26-24; 8:45 am]
BILLING CODE 3510-22-P

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