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Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations
that done in the proposed rule, except NMFS estimated 13.6 seals per day, rather than 14 seals per day to produce a more exact take estimate using the average daily seal count from Jones et al.
2020. Therefore, NMFS may authorize 7,399 takes by Level B harassment of harbor seals across the five-year duration of this rule, with no more than 2,489 takes by Level B harassment in one year Table 9.
The Level A harassment zones for phocids extend less than 10 m from the source during all activities Table 5.
Given the small size of the Level A
harassment zones, we do not expect take by Level A harassment of harbor seal.
Additionally, the Navy is planning to implement a 10 m shutdown zone for during pile driving and other in-water activities Table 11, which includes the entire Level A harassment zone for all pile driving activities. Therefore, the Navy did not request, and NMFS will not authorize take by Level A
harassment of harbor seal.

Gray Seal Very little information is available about the occurrence of gray seals in the Chesapeake Bay and coastal waters.
Although the population of the United States may be increasing, there are only a few records at known haulout sites in Virginia used by harbor seals, strandings are rare, and they have not been reported in shipboard surveys.
Assuming that they may utilize the Chesapeake Bay waters, the Navy conservatively estimates that one gray seal may be exposed to noise levels above the Level B harassment threshold for every 60 days of vibratory pile driving during the six month period when they are most likely to be present.
NMFS concurs, and calculated take based on the number of project days for years which have fewer than 183 project days half of the year. To account for the expected seasonal presence of gray seals, NMFS calculated take based on 183 project days for years which have
more than 183 expected project days 2021, 2025. Therefore, NMFS may authorize nine takes by Level B
harassment of gray seals over the fiveyear duration of the rule, with no more than three takes by Level B harassment in one year Table 9.
The Level A harassment zones for phocids extend less than 10 m from the source during all activities Table 5.
Given the small size of the Level A
harassment zones and the low occurrence of gray seals in the project area, we do not expect Level A
harassment take of gray seal.
Additionally, the Navy is planning to implement a 10 m shutdown zone for during pile driving and other in-water activities Table 11, which includes the entire Level A harassment zone for all pile driving activities. Therefore, the Navy did not request, and NMFS will not authorize take by Level A
harassment of gray seal.

TABLE 9ESTIMATED TAKE BY LEVEL B HARASSMENT, BY SPECIES
Species
2021

Humpback whale
Bottlenose dolphin
Harbor porpoise 1
Harbor seal 1
Gray seal
1 Updated
2022

8
2,742
8 2,489
3

2023

4
1,107
4 1,142
1

2024
2 237
2 245
1

2025

4
1,002
4 1,034
1

6
2,478
6 2,489
3

Total 24
7,566
24
7,399
9

since publication of the proposed rule.

TABLE 10ESTIMATED TAKE BY LEVEL B HARASSMENT GREATEST ANNUAL TAKE EXPECTED, BY SPECIES AND STOCK
IN COMPARISON TO STOCK ABUNDANCE
Stock abundance
Species
Stock
Humpback Whale
Bottlenose Dolphin

Gulf of Maine
WNA Coastal, Northern Migratory a
WNA Coastal, Southern Migratory a
NNCES c
Gulf of Maine/Bay of Fundy
Western North Atlantic
Western North Atlantic

Harbor Porpoise
Harbor Seal
Gray Seal

b 12,312

6,639
3,751
823
95,543
75,834
d 27,131

Level B
harassment take 8
1,353
1,353
36
e8
e 2,489
3

Percent of stock 0.6
20.4
36.1
4.4
0.008
e 3.3
0.01

a Take estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow same probability of presence in the project area. Please see the Small Numbers section for additional information.
b West Indies DPS.
c Assumes multiple repeated takes of same individuals from small portion of each stock as well as repeated takes of Chesapeake Bay resident population size unknown. Please see the Small Numbers section for additional information.
d This stock abundance estimate includes only the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the population, is estimated to be approximately 451,431 animals.
e Updated since publication of the proposed rule.

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Mitigation Measures Under section 101a5A 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
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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
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conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat 50 CFR
216.104a11.
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
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