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Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations measures are sufficient to achieve the least practicable adverse impact on the affected species or stocks and their habitat are subject to review by the Commission and the public, any determination of what measures constitute standard mitigation requirements is NMFS alone to make.
Even in the context of measures that NMFS considers to be standard we reserve the flexibility to deviate from such measures, depending on the circumstances of the action. We disagree with the statement that a prohibition on pile driving activity outside of daylight hours would help to ensure that the Navy is effecting the least practicable adverse impact on the affected species, and the Commission does not justify this assertion.
The final rule includes a measure stating that should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible e.g., fog, heavy rain, night, pile driving and removal must be delayed until observers are confident marine mammals within the shutdown zone could be detected, though this need not preclude pile driving at night with sufficient illumination.
Comment 7: The Commission recommends that NMFS revise section 218.6g9 in the final rule to require the Navy to report the number of individuals of each species detected within the Level A and B harassment zones, and estimates of the number of marine mammals taken by Level A and B harassment, by species.
In a related comment, the Commission recommended that, for the final rule, NMFS include requirements in section 218.6g that the Navy include in its monitoring report 1 the estimated percentages of the Level B
harassment zones that were not visible, 2 an extrapolation of the estimated takes by Level B harassment based on the number of observed exposures within the Level B harassment zones and the percentages of the Level B
harassment zones that were not visible i.e., extrapolated takes, and 3 the total number of Level B harassment takes based on both the observed and extrapolated takes for each species.
Response: We do not fully concur with the Commissions recommendation and do not adopt it as stated. NMFS
agrees with the recommendation to require the Navy to report the number of individuals of each species detected within the Level A and Level B
harassment zones. Section 218.6g9 in the proposed rule stated that the Navy must report the number of marine mammals detected within the
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harassment zones, by species, which is effectively the same measure as the Commissions recommended number of individuals of each species detected within the Level A and B harassment zones. Therefore, NMFS did not modify that measure. NMFS does not agree with the recommendation to require the Navy to report estimates of the numbers of marine mammals taken by Level A and Level B harassment. The Commission does not explain why it believes this requirement is necessary, nor does it provide recommendations for methods of generating such estimates in a manner that would lead to credible results. NMFS does not agree that the basic method described in footnote 22 of the Commissions November 19, 2020 letter should be expected to yield estimates of total take such that readers of the Navys report should have confidence that the estimates are reasonable representations of what may have actually occurred.
NMFS does agree that the Navy should report the estimated percentages of the Level B harassment zones that were not visible, and has included this requirement in this final rule See section 218.6g12. These pieces of informationnumbers of individuals of each species detected within the harassment zones and the estimated percentages of the harassment zones that were not visiblemay be used to glean an approximate understanding of whether the Navy may have exceeded the amount of take authorized. Although the Commission does not explain its reasoning for offering these recommendations, NMFS recognizes the basic need to understand whether an IHA-holder may have exceeded its authorized take. The need to accomplish this basic function of reporting does not require that NMFS require applicants to use methods we do not have confidence in to generate estimates of total take that cannot be considered reliable.
Comment 8: The Commission recommended that NMFS reinforce that the Navy must keep a running tally of the total Level B harassment takes, both observed and extrapolated, for each species consistent with section 218.5a10 of the final rule.
Response: The LOA will indicate the number of takes authorized for each species. We agree that the Navy must ensure they do not exceed authorized takes, but do not concur with the Commissions repeated recommendations regarding the need for NMFS to dictate how an applicant does so, including by requiring an applicant to maintain a running tally of takes.
Regardless of the Commissions
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substitution of the word reinforce for the word ensure, as compared with its prior recommendations for other actions, compliance with the terms of an issued LOA remains the responsibility of the LOA-holder.
Changes From Proposed to Final Regulations As noted by the Commission in its informal comments on the proposed rule, Table 13 in the proposed rule mistakenly indicated an estimate of 20
Level B harassment takes of harbor porpoise over the five-year duration of this rule. NMFS corrected this take estimate to reflect 24 takes over the fiveyear period, as described in the Estimated Take section of this final rule.
NMFS has also adjusted the harbor seal take estimate in this final rule to reflect estimated take of 13.6 harbor seals per day, rather than 14 harbor seals per day included in the proposed rule, also described further in the Estimated Take section.
Regarding mitigation, this final rule requires the Navy to establish a 55 m shutdown zone for LF cetaceans during impact driving of 24-in concrete piles, rather than 50 m included in the proposed rule.
Regarding monitoring, the proposed rule stated that the Navy would conduct SSV for composite piles; however, this final rule does not include a requirement for the Navy to conduct SSV. Please see the Acoustic Monitoring section for additional information. This final rule requires the Navy to employ at least three PSOs during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs during vibratory pile driving at Lamberts Point, though the exact locations have not been determined. For all other pile driving activities, a minimum of two PSOs will be used, as stated in the proposed rule 85 FR 83001; December 21, 2020. This change is reflected in the Monitoring and Reporting section of this final rule and in section 218.6b.
Regarding reporting, this final rule requires the Navy to report the estimated percentage of the Level B
harassment zone that was not visible.
Description of Marine Mammals in the Area of Specified Activities Sections 3 and 4 of the Navys application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFSs SARs https www.fisheries.noaa.gov/
national/marine-mammal-protection/

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