Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Waterfront Construction, 26360-26376 [2017-11805]

Download as PDF 26360 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations comment on the stay is impracticable, unnecessary, and contrary to the public interest. The delay in the effective date until December 4, 2017, is necessary to continue the review of the rule and Petitions, including any potential outreach. Given the imminence of the effective date of the ‘‘System Safety Program’’ final rule, seeking prior public comment on this temporary delay would be impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. Authority: 49 U.S.C. 20103, 20106–20107, 20118–20119, 20156, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89. Issued in Washington, DC, on June 1, 2017. Patrick T. Warren, Executive Director. [FR Doc. 2017–11727 Filed 6–2–17; 4:15 pm] BILLING CODE 4910–06–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Parts 571 and 585 [Docket No. NHTSA–2016–0125] RIN 2126–AK93 Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Final rule; delay of effective date. AGENCY: In accordance with the Presidential directive as expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled ‘‘Regulatory Freeze Pending Review,’’ this action temporarily delays until September 5, 2017, the effective date of the final rule titled ‘‘Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles,’’ initially scheduled to become effective on February 13, 2017. DATES: The effective date of the final rule published on December 14, 2016 (81 FR 90416), is delayed until September 5, 2017. The initial compliance date is September 1, 2018, with full phase in by September 1, 2019. FOR FURTHER INFORMATION CONTACT: For legal issues, contact Thomas Healy, Office of Chief Counsel, at (202) 366– 2992. For non-legal issues, contact Mike pmangrum on DSK3GDR082PROD with RULES SUMMARY: VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 Pyne, Office of Rulemaking, at (202) 366–4171. SUPPLEMENTARY INFORMATION: NHTSA bases this action in part on the Presidential directive expressed in the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled ‘‘Regulatory Freeze Pending Review’’ (the January 20, 2017 memorandum). That memorandum directed the heads of Executive Departments and Agencies to temporarily postpone for 60 days from the date of the memorandum the effective dates of certain regulations that had been published in the Federal Register, but had not yet taken effect. Because the original effective date of the final rule published on December 14, 2016, fell within that 60-day window, the effective date of the rule was extended to March 21, 2017, in a final rule published on February 6, 2017 (82 FR 9368). The effective date was again extended to May 22, 2017, in a final rule published March 21, 2017 (82 FR 14477). The effective date was further extended until June 5, 2017, in a final rule published May 22, 2017 (82 FR 23150). Consistent with the memorandum of the Assistant to the President and Chief of Staff, and as stated in the February 6, 2017, final rule delaying the effective date, the Agency further delays the effective date of this regulation until September 5, 2017. This delay of the effective date of the final rule is also based on the need to allow additional time to respond to several petitions for reconsideration filed in response to the final rule. These responses will provide regulated entities with greater certainty as to the requirements of the Minimum Sound Requirements for Hybrid and Electric Vehicles final rule prior to the rule coming into effect. Delaying the effective date of the final rule to allow additional time to respond to these petitions for reconsideration is prudent in this instance because the petitions concern topics such as the date by which manufacturers are required to comply with the rule’s requirements and the stringency of the requirements themselves, both of which impact manufacturers’ compliance plans. The Agency’s implementation of this action without opportunity for public comment is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3), in that seeking public comment is impracticable, unnecessary and contrary to the public interest. The delay in the effective date until September 5, 2017, is necessary to provide the opportunity for further review and consideration of this new PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 regulation, consistent with the January 20, 2017 memorandum. Given the imminence of the effective date of the ‘‘Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles’’ final rule, seeking prior public comment on this temporary delay would be impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30116; delegation of authority at 49 CFR 1.95. Terry T. Shelton, Acting Executive Director. [FR Doc. 2017–11732 Filed 6–2–17; 4:15 pm] BILLING CODE 4910–59–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 [Docket No. 160830798–7517–02] RIN 0648–BG32 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Waterfront Construction National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: 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 incidental to conducting waterfront construction at Naval Submarine Base Kings Bay, GA, over the course of five years (2017–2022). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking. DATES: Effective from July 12, 2017, through July 11, 2022. ADDRESSES: A copy of Navy’s application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.nmfs.noaa.gov/pr/ SUMMARY: E:\FR\FM\07JNR1.SGM 07JNR1 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed below (see FOR FURTHER INFORMATION CONTACT). year regulations, and for any subsequent LOAs. As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements. Ben Laws, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Summary of Major Provisions Within the Final Rule Following is a summary of the major provisions of this final rule regarding Navy waterfront construction activities. We have determined that the Navy’s adherence to the planned mitigation, monitoring, and reporting measures listed below will achieve the least practicable adverse impact on the affected marine mammals. These measures include: • Required monitoring of the waterfront construction areas to detect the presence of marine mammals before beginning construction activities. • Shutdown of construction activities under certain circumstances to avoid injury of marine mammals. • 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. FOR FURTHER INFORMATION CONTACT: Purpose and Need for Regulatory Action These regulations, issued under the authority of the MMPA (16 U.S.C. 1361 et seq.), establish a framework for authorizing the take of marine mammals incidental to the Navy’s waterfront construction activities at Naval Submarine Base Kings Bay, GA (NSB Kings Bay). The Navy plans to repair (including direct repairs and repairs by component replacement) in-water structures at NSB Kings Bay, construct a new Transit Protection System Operational Support Facility, and extend the existing Layberth Pier in order to (1) address critical damage and mission and safety requirements, (2) limit further deterioration and increase the useful life of the structures, and (3) upgrade infrastructure to meet requirements of new submarine technology. Construction will include use of impact and vibratory pile driving, including installation and removal of steel, concrete, composite, and timber piles. We received an application from the Navy requesting five-year regulations and authorization to take bottlenose dolphins. Take is anticipated to occur by Level B harassment incidental to impact and vibratory pile installation and removal. The regulations are valid from 2017 to 2022. Please see the ‘‘Background’’ section below for definitions of harassment. pmangrum on DSK3GDR082PROD with RULES 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 five 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, as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this final rule containing five- VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 Background Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1371 (a)(5)(A) and (D)) direct 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 if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 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. Except with respect to certain activities not pertinent here, 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 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 26361 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). Summary of Request On January 19, 2016, we received an adequate and complete request from the Navy for authorization to take marine mammals incidental to waterfront construction activities. On February 17, 2016 (81 FR 8048), we published a notice of receipt of Navy’s application in the Federal Register, requesting comments and information related to the request for 30 days. We did not receive any comments. The Navy provided a revised final draft incorporating minor revisions on March 17, 2017. The Navy plans to repair in-water structures at NSB Kings Bay, as well as to construct new facilities and modify existing facilities. These repairs, upgrades, and new construction would include use of impact and vibratory pile driving, including installation and removal of steel, concrete, composite, and timber piles. Hereafter (unless otherwise specified or detailed), we use the term ‘‘pile driving’’ to refer to both pile installation and pile removal. The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Only the bottlenose dolphin (Tursiops truncatus truncatus) is expected to be present. The regulations are valid for five years, from July 12, 2017, through July 11, 2022. Description of the Specified Activity Additional detail regarding the specified activity was provided in our Federal Register notice of proposed rulemaking (82 FR 684; January 3, 2017); please see that notice or the Navy’s application for more information. Overview NSB Kings Bay is the Navy’s east coast home port for ballistic missile nuclear submarines supporting the Trident II (D–5) missile. NSB Kings Bay manages, maintains, and operates Trident ballistic missile (SSBN) and guided missile (SSGN) submarines, Trident II D–5 and Tomahawk Land Attack Missiles and systems, and infrastructure and quality of life facilities and programs. In 2010, the Navy found that conditions of water- E:\FR\FM\07JNR1.SGM 07JNR1 26362 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations based support facilities varied widely from good to seriously deteriorated. Continuous monitoring of these conditions by Navy at NSB Kings Bay has confirmed the advanced deterioration and critical nature of some issues that pose operational and safety risks. Additionally, other areas of initial deterioration were identified which require remedy in order to maintain the useful life of existing structures. Damage observed includes deteriorated concrete piles, pile caps, and deck components (cracked, spalled, delaminated, exposed/corroded internal reinforcing steel structures); marine pest (marine wood borer) damage on wooden piles; broken or unmaintained mooring fittings; and corrosion on steel piles and pile caps. In some cases, it is more cost effective to demolish older structures that are deteriorated and not well configured to fit existing and upcoming assets and replace them with new structures that are specifically designed to meet new mission requirements. To ensure the Navy can continue its mission of supporting the Fleet Ballistic Missile System and Trident Submarine Program, the Navy plans to repair (including direct repairs and repairs by component replacement) in-water structures at NSB Kings Bay, construct a new Transit Protection System Operational Support Facility, and extend the existing Layberth Pier. These repairs, upgrades, and new construction will (1) address critical damage and mission and safety requirements, (2) limit further deterioration and increase the useful life of the structures, and (3) upgrade infrastructure to meet requirements of new submarine technology. Construction will include use of impact and vibratory pile driving, including installation and removal of steel, concrete, composite, and timber piles. The specified activity is comprised of six distinct projects, four of which are comprised of multiple smaller projects. Dates and Duration The specified activity may occur at any time during the five-year period of validity of the regulations. Planned dates of individual projects and project components are shown in Table 1, however, project dates may shift. Inwater construction activities would occur during daylight hours, defined here as one hour post-sunrise to one hour prior to sunset. Specified Geographical Region NSB Kings Bay is located in southeastern Georgia, approximately four miles inland (straight line distance) from the Atlantic Ocean, and approximately eight miles north of the Georgia-Florida border, along the western shore of Cumberland Sound (see Figure 2–1 in the Navy’s application). NSB Kings Bay is an approximately 16,000-acre installation including the land areas and adjacent water areas along Kings Bay and Cumberland Sound between Marianna Creek to the north and Mill Creek to the south, and is restricted from general public access. This estuarine environment receives salt water input from ocean waters through tidal exchange, and fresh water input from rivers, tributaries, and stormwater outfalls. The large tidal range and strong currents result in tidally mixed waters that are refreshed on a daily basis. Please see section 2 of the Navy’s application for more information. Detailed Description of Activities The Navy plans to remove deteriorated timber, concrete, and steel piles and replace them with concrete, composite, and steel piles. New construction would involve installation of steel, concrete, and composite piles. Aspects of construction activities other than pile driving are not anticipated to have the potential to result in incidental take of marine mammals because they are either above water or do not produce levels of underwater sound with likely potential to result in marine mammal disturbance. Therefore, we do not discuss elements of construction activity other than pile driving. No concurrent pile driving would occur. Project specific pile totals are given in Table 1. A vibratory hammer will be used for all pile removal work. If use of the vibratory hammer is not feasible for pile installation (i.e., with steel piles), a Delmag Pile Hammer D62–22 or equivalent impact hammer will be used. The Delmag Pile Hammer D62–22 is a single acting diesel impact hammer with energy capacity of 76,899–153,799 footpounds. The most effective and efficient method of pile installation available will be implemented for each project. The method fitting these criteria may vary based on specific project requirements and local conditions. In some areas of Kings Bay a limestone layer can be found relatively close to the substrate/water interface. This type of layer requires impact driving because vibratory installation will not drive the piles to a sufficient depth. Impact driving, while generally producing higher levels of sound, also minimizes the net amount of active driving time, thus reducing the amount of time during which marine mammals may be exposed to noise. Impact or vibratory pile driving could occur on any day, but would not occur simultaneously. TABLE 1—PILE DRIVING SUMMARY ID Project start (fiscal year) Water depth (ft) 2017 24 1B ............. 2017 15 2 ............... 3A ............. pmangrum on DSK3GDR082PROD with RULES 1A ............. 2017 2017 2022 46 46 3B ............. 3C ............. 2021 2018 46 46 3D ............. 2017 46 3E ............. 2018 Total number Pile size (in) 46 VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 18 24 16 16 16 14 24 24 24 14 24 30 24 30 24 30 Pile type Installed Concrete .......... Concrete .......... Timber ............. Composite ....... Timber ............. Steel (H) .......... Steel ................ Concrete .......... Steel ................ Steel (H) .......... Steel ................ Steel ................ Steel ................ Steel ................ Steel ................ Steel ................ PO 00000 Frm 00028 Fmt 4700 148 18 0 2 0 55 2 3 10 99 6 0 6 0 6 0 Sfmt 4700 Removed 0 0 159 0 2 0 2 3 10 99 0 6 0 6 0 6 Installation method Impact .............. Impact .............. n/a .................... Vibratory .......... n/a .................... Impact .............. Impact .............. Impact .............. Impact .............. Impact .............. Impact .............. n/a .................... Impact .............. n/a .................... Impact .............. n/a .................... E:\FR\FM\07JNR1.SGM 07JNR1 Estimated number of strikes per pile 60 70 n/a n/a n/a 80 70 75 70 60 70 n/a 70 n/a 70 n/a Total maximum in-water work days 30 4 31 1 1 7 2 2 7 15 1 1 1 1 1 1 26363 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations TABLE 1—PILE DRIVING SUMMARY—Continued Project start (fiscal year) ID Total number Water depth (ft) Pile size (in) 3F ............. 3G ............ 4A ............. 2021 2022 2020 46 30 35 4B ............. 5 ............... 2020 2017 35 46 6A ............. 6B ............. 2022 2022 46 46 Installed 30 14 24 18 24 24 18 16 24 24 Table 2 shows total piles planned for installation (I) and removal (R) by pile type and size in total and per year. Note Steel ................ Steel (H) .......... Concrete .......... Concrete .......... Concrete .......... Steel ................ Composite ....... Timber ............. Concrete .......... Concrete .......... Removed 8 77 165 50 0 30 18 0 0 0 Estimated number of strikes per pile Installation method Pile type 8 77 0 0 121 30 0 18 649 121 Impact .............. Impact .............. Impact .............. Impact .............. n/a .................... Impact .............. Vibratory .......... n/a .................... n/a .................... n/a .................... that no pile driving is planned for fiscal year (FY) 2019. Below we provide further detail specific to individual Total maximum in-water work days 70 60 200 80 n/a 100 n/a n/a n/a n/a 4 16 55 17 8 8 3 3 41 6 projects and project components. For additional detail, please see section 1 of the Navy’s application. TABLE 2—PILE TOTALS BY TYPE AND YEAR Pile type Composite ......................................... Size (in) FY2017 I FY2018 R I FY2020 R I FY2021 R I FY2022 R I Totals R I R Timber ............................................... 16 18 18 24 14 24 30 16 2 18 148 18 55 8 0 0 0 0 0 0 0 2 6 179 0 0 0 0 0 12 0 0 0 0 0 0 0 0 12 0 0 0 50 165 0 30 0 0 0 0 0 121 0 30 0 0 0 0 0 0 99 0 8 0 0 0 0 0 99 0 8 0 0 0 0 3 77 10 0 0 0 0 0 773 77 10 0 0 2 18 198 186 231 60 8 0 0 0 0 894 176 42 26 179 Totals ......................................... ............ 249 187 12 12 245 151 107 107 90 860 703 1,317 Concrete ............................................ pmangrum on DSK3GDR082PROD with RULES Steel (H) ............................................ Steel .................................................. Comments and Responses We published a notice of proposed rulemaking in the Federal Register on January 3, 2017 (82 FR 684). During the 30-day comment period, we received a letter from the Marine Mammal Commission (Commission) and comments from two private citizens. The comments and our responses are described below. Comment 1: The Commission recommends that we require the Navy to conduct source level measurements during vibratory driving of a representative number of 16-inch (in) composite piles in addition to the other pile types and methods proposed to be monitored. Response: We agree with the Commission’s recommendation, and the Navy’s monitoring plan has been revised accordingly. Comment 2: The Commission recommends that we require the Navy to conduct sound propagation measurements in addition to source level measurements during the various activities that would be monitored acoustically to refine the extent of the Level A and B harassment zones. Response: This was originally the intent of the acoustic monitoring plan, VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 and the Navy’s monitoring plan has been revised for clarity. Comment 3: The Commission recommends that we require the Navy to reallocate additional monitoring effort to the first two years of activities and ensure that monitoring occurs during a representative portion of the various pile sizes, types, and methods including during impact driving of steel pipe piles. Response: The Navy has clarified that impact and vibratory pile driving may occur interchangeably on any given day. Therefore, for example, although the description of Project 1A includes a maximum of 31 days of vibratory removal and 30 days of impact installation, these days would not likely be independent, and the much smaller disturbance zone for impact driving would be contained within the zone associated with vibratory driving. We have revised the monitoring plan to include monitoring of the disturbance on a portion of days associated with Project 2; with this addition, all projects other than 1B and the FY17 phase of Project 3A (each of which involves only two days of pile driving) incorporate some disturbance zone monitoring effort. We therefore believe that the PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 monitoring plan achieves the goals expressed in the Commission’s recommendation. Comment 4: A private citizen, while expressing support for the Navy’s proposed waterfront construction activities, suggests that the length of the project may result in long-term avoidance and have permanent adverse effects on the Western North Atlantic South Carolina/Georgia Coastal Stock of bottlenose dolphins. The commenter recommends that the opportunity be used to fill gaps in research in order to provide insight regarding the human impact on marine mammals. Response: We appreciate the commenter’s concern. While the best available information does not lead us to believe that long-term avoidance or permanent adverse effects to any potentially affected stocks of bottlenose dolphin are reasonably anticipated outcomes of the specified activity, NMFS’s implementing regulations (50 CFR 216.104) do require that applicants for incidental take authorization propose the suggested means of 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. Please E:\FR\FM\07JNR1.SGM 07JNR1 26364 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations see ‘‘Monitoring and Reporting,’’ later in this document, for details of planned monitoring and reporting requirements. Comment 5: A private citizen states that protection of marine life is critical to maintaining balanced ecosystems and that mass stranding of marine life is undesirable. Response: We agree with the sentiments expressed by the commenter and issue this final rule in accordance with the requirements of the MMPA, which address the Congressional finding that marine mammal species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part (16 U.S.C. 1361(2)). However, no mass stranding of marine life is anticipated to result from the specified activity, and no injury or mortality of marine mammals is anticipated or authorized. Description of Marine Mammals in the Area of the Specified Activity Only one species under NMFS’s jurisdiction is considered to have the potential to co-occur with Navy activities: The bottlenose dolphin. However, multiple stocks of bottlenose dolphin have the potential to be present. The offshore stock of bottlenose dolphins is considered extralimital to the project area and is not discussed further in this document. Table 3 lists all species and stocks with expected potential for occurrence in the specified geographical region where Navy plans to conduct the specified activity, and summarizes information related to the population or stock, including potential biological removal (PBR). PBR, 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, is considered in concert with known sources of ongoing anthropogenic mortality (as described in NMFS’s SARs). TABLE 3—MARINE MAMMALS POTENTIALLY PRESENT IN THE VICINITY OF NSB KINGS BAY Species ESA/MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 4 PBR 3 Relative occurrence in Kings Bay; season of occurrence 5 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae Bottlenose dolphin. Western North Atlantic Coastal, South Carolina/Georgia. WNA Coastal, Northern Florida. WNA Coastal, Southern Migratory. Southern Georgia Estuarine System. Jacksonville Estuarine System. D; Y 4,377 (0.43; 3,097; 2009) .. 31 ................... 1.2–1.6 ........... Likely; year-round. D; Y 1,219 (0.67; 730; 2009) ..... 7 ..................... 0.4 .................. Rare; year-round. D; Y 9,173 (0.46; 6,326; 2009) .. 63 ................... 0–12 ............... Rare; January–March. -; Y 194 (0.05; 185; 2009) ........ 1.9 .................. Unk ................ Likely; year-round. -; Y Unknown ............................ Undetermined 1.2 .................. Rare; year-round. pmangrum on DSK3GDR082PROD with RULES 1 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 (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. 2 CV is coefficient of variation; N min is the minimum estimate of stock abundance. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. 3 Potential biological removal, 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 size (OSP). 4 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, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a range. 5 The Navy considers ‘‘rare’’ to mean that there may be a few confirmed sightings or that the distribution of the stock is near enough to the area of interest that the species could occur there, and that overall the stock may occur but only infrequently or in small numbers. ‘‘Likely’’ is considered to mean that confirmed and regular sightings of the species occur year-round. Extralimital stocks are those that are considered unlikely to co-occur with the activity because the action area is outside the range of normal occurrence, but for which there may be some sighting or stranding records. We presented a detailed discussion of the status of these stocks and their occurrence in the action area in the notice of the proposed rulemaking (82 FR 684; January 3, 2017), and do not repeat the information here. Please see that document for more information. In summary, the southern Georgia estuarine system stock and the South Carolina/Georgia coastal stock are expected to be the two stocks most likely to be affected by the specified VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 activity. Individual animals from the northern Florida and southern migratory (January to March only) coastal stocks and the Jacksonville estuarine system stock may also occur rarely. Potential Effects of the Specified Activity on Marine Mammals and Their Habitat We provided discussion of the potential effects of the specified activity on marine mammals and their habitat in PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 our Federal Register notice of proposed rulemaking (January 3, 2017; 82 FR 684). Therefore, we do not reprint the information here but refer the reader to that document. That discussion included a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The ‘‘Estimated Take’’ section later in this preamble includes a quantitative analysis of the number of incidents of E:\FR\FM\07JNR1.SGM 07JNR1 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations take expected to occur incidental to this activity. The ‘‘Negligible Impact Analysis’’ section includes an analysis of how this specific activity will impact marine mammals, and considers the content of the discussion of potential effects to marine mammals and their habitat, the ‘‘Estimated Take’’ section, and the ‘‘Mitigation’’ section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals, and from that on the affected marine mammal populations or stocks. Estimated Take 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). Anticipated takes would be by Level B harassment, as pile driving activity has the potential to result in disruption of behavioral patterns for individual marine mammals. Level A harassment by auditory injury is unlikely to occur as a result of this activity for bottlenose dolphins (i.e., mid-frequency hearing specialists) and, although it is unlikely that take by Level A harassment would 26365 occur even in the absence of the planned mitigation and monitoring measures, the measures are expected to further minimize such potential. The Navy has requested authorization for the incidental taking by Level B harassment of bottlenose dolphins in the vicinity of NSB Kings Bay that may result from pile driving during waterfront construction activities described previously in this document. Sound Thresholds We provided discussion of relevant sound thresholds in our Federal Register notice of proposed rulemaking (January 3, 2017; 82 FR 684) and do not reprint the information here. Please see Table 4 for those criteria. TABLE 4—ACOUSTIC EXPOSURE CRITERIA Criterion Definition Threshold Level A harassment (mid-frequency cetaceans). Injury (onset PTS—any level above that which is known to cause TTS). Behavioral disruption ..................... 230 dB 1 (peak pressure) or 185 dB 2 (cumulative sound exposure level). Level B harassment ........................ 1 Referenced pmangrum on DSK3GDR082PROD with RULES 2 Referenced to 1 μPa; unweighted within generalized hearing range. to 1 μPa2s; weighted according to appropriate auditory weighting function. Based on consideration of NMFS’s 2016 ‘‘Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing,’’ potential injury zones are fully encompassed by Navy’s planned shutdown zones. Predicted isopleth distances for auditory injury (i.e., Level A harassment) were calculated for all construction scenarios (e.g., combinations of pile types, hammer types, and assumed number of piles driven per day or driving duration per day). This information was used with NMFS’s optional user spreadsheet, a tool developed to help applicants implement the new Technical Guidance. For vibratory driving, predicted zones ranged from less than 1 m to 3.6 meters (m). For impact driving, predicted zone ranged from less than 1 m to 38 m. All zones were smaller than the Navy’s proposed minimum shutdown zone of 15 m, except for impact driving of 24-in steel piles associated with project 4B in FY20 (16.6 m) and impact driving of 30-in steel piles associated with project 3F in FY 2021 (38 m). Shutdown zones associated with these projects would be increased to 20 m and 40 m, respectively, in order to encompass the predicted injury zones. In consideration of the small injury zones and the Navy’s mitigation, we believe that injury will be avoided. We have considered the new guidance VerDate Sep<11>2014 160 dB root mean square (rms) (impulse sources); 120 dB rms (nonimpulsive, continuous sources). 15:10 Jun 06, 2017 Jkt 241001 and believe that the likelihood of injury is adequately addressed in this analysis, and appropriate protective measures are in place in these regulations. Zones of Influence Sound Propagation—Pile driving generates underwater noise that can potentially result in disturbance to marine mammals in the project area. Transmission loss (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, 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, R1 = the distance of the modeled SPL from the driven pile, and R2 = the distance from the driven pile of the initial measurement. This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 and sediments. Spherical spreading occurs in a perfectly unobstructed (freefield) environment not limited by depth or water surface, resulting in a 6 dB reduction in sound level for each doubling of distance from the source (20*log(range)). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 decibels (dB) in sound level for each doubling of distance from the source (10*log(range)). As is common practice in coastal waters, here we assume practical spreading loss (4.5 dB reduction in sound level for each doubling of distance) here. Practical spreading is a compromise that is often used under conditions where water increases with depth as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Sound Source Levels and Behavioral Zones—The intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment in which the activity takes place. However, there are no measurements available from the specific environment of NSB Kings Bay. Numerous studies have examined sound E:\FR\FM\07JNR1.SGM 07JNR1 26366 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations evaluated, and are displayed in Table 5. Where available, data from the east coast were prioritized due to the differences in bathymetry and sediment at west coast sites. For pile types for which data from the east coast were not available, averages of west coast data were used to approximate source levels. For fiberglass reinforced plastic composite piles, no measured data are available. The source level estimates for this type of pile were based on data from timber piles driven on the east pressure levels (SPLs) recorded from underwater pile driving projects in California and Washington, and the Navy has conducted a few studies on the east coast. In addition, the majority of studies are focused on steel pipe piles, with less data available for other pile types. In order to determine reasonable SPLs and their associated effects on marine mammals that are likely to result from pile driving at NSB Kings Bay, studies with similar properties to the specified activity were coast of the U.S, assuming that this is the most similar pile material. In all cases, where data from the same pile size/type were not available, a more conservative proxy was used. Where appropriate, weighted project averages were considered. Values measured at distances greater than 10 m were normalized to 10 m before calculating averages. For full details of data considered, please see Appendix C of the Navy’s application. TABLE 5—SUMMARY OF PROXY MEASURED UNDERWATER SOUND PRESSURE LEVELS [SPLs] Proxy source levels (dB at 10 m) Method Pile size and material Proxy rms Vibratory ............. Vibratory ............. Vibratory ............. Vibratory ............. Vibratory ............. Impact ................. Impact ................. Impact ................. Impact ................. Impact ................. 16″ timber; 16–18″ composite ....... 18–24″ concrete ............................. 14″ steel H ..................................... 24″ steel pipe ................................. 30″ steel pipe ................................. 18″ concrete ................................... 24″ concrete ................................... 14″ steel H ..................................... 24″ steel pipe ................................. 30″ steel pipe ................................. 12–16″ timber 1 .............................. 24″ steel pipe 2–5 ............................ 14″ steel H 6 ................................... 24″ steel pipe 2–5 ............................ 30″ steel pipe 7–9 ............................ 18″ concrete 4 ................................. 24″ concrete 1 6 .............................. 14″ steel H 4 ................................... 24″ steel pipe 4 10–11 ...................... 30″ steel pipe 4 8 10 12 ..................... pk 161 166 163 166 166 170 174 178 190 193 SEL n/a n/a n/a n/a n/a 184 184 196 206 209 n/a n/a n/a n/a n/a 159 165 168 179 188 Sources: 1 Illingworth & Rodkin, 2015; 2 Illingworth & Rodkin, 2010; 3 Illingworth & Rodkin, 2012; 4 Caltrans, 2012; 5 Illingworth & Rodkin, 2013b; & Rodkin, 2013a; 7 Laughlin, 2010a; 8 Laughlin, 2010b; 9 Laughlin, 2011; 10 Laughlin, 2005a; 11 Laughlin, 2005b; 12 MacGillivray and Racca, 2005. 6 Illingworth We consider the values presented in Table 5 to be representative of SPLs that may be produced by the specified activity. All calculated distances to and the total area encompassed by the marine mammal sound thresholds are provided in Table 6. Calculated radial distances to the 160 dB threshold assume a field free of obstruction. However, the waters surrounding NSB Kings Bay do not represent open water conditions and the calculated zonespecific areas take landforms into consideration. Actual zones are depicted in Figures 6–1 through 6–26 of the Navy’s application. Although calculated radial distances to threshold do not change, the actual zone sizes may vary depending on the specific project location. TABLE 6—DISTANCES TO RELEVANT SOUND THRESHOLDS AND AREAS OF ENSONIFICATION Distance to threshold (m) and associated area of ensonification (km2) pmangrum on DSK3GDR082PROD with RULES Project Pile type 160 dB 1A .................................. 1A .................................. 1A .................................. 1B .................................. 2 ..................................... 3A (FY17) ...................... 3A (FY22) ...................... 3A (FY22) ...................... 3B .................................. 3C .................................. 3D .................................. 3E .................................. 3F ................................... 3G .................................. 4A .................................. 4A .................................. 4B .................................. 5 ..................................... 6A/6B ............................. 16″ timber ............................................................ 18″ concrete ........................................................ 24″ concrete ........................................................ 16″ timber/composite ........................................... 14″ steel H ........................................................... 24″ steel pipe ...................................................... 24″ concrete ........................................................ 24″ steel pipe ...................................................... 14″ steel H ........................................................... 24–30″ steel pipe ................................................ 24–30″ steel pipe ................................................ 24–30″ steel pipe ................................................ 30″ steel pipe ...................................................... 14″ steel H ........................................................... 18″ concrete ........................................................ 24″ concrete ........................................................ 24″ steel pipe ...................................................... 16″ timber/18″ composite .................................... 24″ concrete ........................................................ n/a 46.4 85.8 n/a 159 1,000 85.8 1,000 159 1,000 1,000 1,000 1,585 159 46.4 85.8 1,000 n/a n/a 120 dB n/a 0.01 0.02 n/a 0.06 0.88 0.02 0.88 0.04 0.75 0.90 0.88 1.35 0.07 0.02 0.01 1.63 n/a n/a 5,412 n/a n/a 5,412 n/a 11,659 11,659 11,659 7,356 11,659 11,659 11,659 11,659 7,356 11,659 11,659 11,659 5,412 11,659 Areas presented take into account attenuation and/or shadowing by land. Please see Figures 6–1 to 6–26 in the Navy’s application. VerDate Sep<11>2014 16:30 Jun 06, 2017 Jkt 241001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\07JNR1.SGM 07JNR1 3.69 n/a n/a 3.12 n/a 3.63 3.63 3.63 2.40 3.32 3.17 3.72 3.49 4.00 7.51 7.51 6.87 10.75 9.34 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations Marine Mammal Density The Navy conducted marine mammal surveys at NSB Kings Bay during 2006– 2007 (McKee and Latusek, 2009). Transect lines were run in the waters around NSB Kings Bay during summer and fall 2006 and during winter and spring 2007. The survey area included estuarine waters extending from the mouth of the St. Marys River north through the Cumberland Sound to approximately eight nautical miles (nmi) inland along the Satilla River. The Crooked River and the Brickhill River, which flow into Cumberland Sound, were also part of the study area, though line transects were not possible in these locations, and census counts were substituted here. The geographic limits ranged from 30°40′ N. to 31°00′ N. and inland limits to 81°40′ W. Nearshore Atlantic waters were not included in the surveys. Observations were made with 7x50 power binoculars and with the naked eye, scanning from 0–90° relative to the vessel’s line of travel. Sightings, radial distance and angle to animal, and number of individuals were recorded. For census count areas, the vessel was driven along the center line of the river and distance and angle to sightings were noted. Commercially available software (Distance 5.0) was used to analyze the collected data, including area surveyed, and calculate a seasonal density. Seasonal densities were combined to calculate an average annual density of 1.12 dolphins per square kilometer (km2). Incidental Take Calculation The species density described above (1.12 animals/km2) was multiplied by 26367 the activity-specific ZOIs shown in Table 6 to determine the estimated daily exposures. The Navy then rounded these daily exposure estimates to the nearest whole number before multiplying by activity-specific pile driving days, shown in Table 1, to yield the exposure estimates shown in Table 7. The Navy has requested authorization for a total of 881 incidents of Level B harassment of bottlenose dolphins over the five-year period of validity of these regulations. Table 7 displays the total take estimate broken out by project and year. However, note that year assignments reflect only the projected project start years. Projects may continue into succeeding years, but neither exact start dates nor whether a project would in fact continue into the succeeding year are known at this time. TABLE 7—INCIDENTAL TAKE TOTALS Year Project Impact Vibratory FY17 ............................................................................................................................................ 1A 1B 2 3A 3D 5 0 n/a 0 1 1 n/a 124 6 n/a 4 4 72 FY17 Totals .......................................................................................................................... n/a 2 210 212 FY18 ............................................................................................................................................ 3C 3E 1 1 4 4 FY18 Totals .......................................................................................................................... n/a 2 8 10 FY19 ............................................................................................................................................ n/a FY20 ............................................................................................................................................ 4A 4B 0 8 64 32 FY20 Totals .......................................................................................................................... n/a 8 96 104 FY21 ............................................................................................................................................ 3B 3F 0 4 21 8 FY21 Totals .......................................................................................................................... n/a 4 29 33 pmangrum on DSK3GDR082PROD with RULES FY22 ............................................................................................................................................ 3A 3G 6A 6B 4 0 n/a n/a 16 32 410 60 FY22 Totals .......................................................................................................................... n/a 4 518 522 FY17–22 Totals ............................................................................................................. n/a 20 881 VerDate Sep<11>2014 17:38 Jun 06, 2017 Jkt 241001 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 E:\FR\FM\07JNR1.SGM 07JNR1 861 26368 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations pmangrum on DSK3GDR082PROD with RULES Analyses and Determinations Negligible Impact Analysis NMFS has defined ‘‘negligible impact’’ in 50 CFR 216.103 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. 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 by mortality, serious injury, and Level A or Level B harassment, we consider other factors, such as the likely nature of any behavioral responses (e.g., intensity, duration), the context of any such responses (e.g., critical reproductive time or location, migration), as well as the number and nature of estimated Level A harassment takes (if any), and effects on habitat. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status (i.e., the environmental baseline). Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into these analyses via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, sources of human-caused mortality). Pile driving activities associated with the wharf construction projects, as described previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving. Potential takes could occur if individual bottlenose dolphins are present in the ensonified zone when pile driving is happening. No serious injury or mortality would be expected even in the absence of the planned mitigation measures. No Level A harassment is anticipated given the nature of the activities and measures designed to minimize the possibility of injury. The potential for injury is small, and is expected to be essentially eliminated through implementation of the planned mitigation measures—soft start (for impact driving) and shutdown zones. Impact driving, as compared with VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 vibratory driving, has source characteristics (short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks) that are potentially injurious or more likely to produce severe behavioral reactions. Given sufficient notice through use of soft start, marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious or resulting in more severe behavioral reactions. Environmental conditions in waters surrounding NSB Kings Bay are expected to generally be good, with calm sea states, albeit with high turbidity. Nevertheless, we expect conditions would allow a high marine mammal detection capability, enabling a high rate of success in implementation of shutdowns to avoid injury. Effects on individuals that are taken by Level B harassment, 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; HDR, Inc., 2012; Lerma, 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although 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 in San Francisco Bay and in the Puget Sound region, which have taken place with no known long-term adverse consequences from behavioral harassment. The Navy has conducted similar multi-year activities potentially affecting bottlenose dolphins in San Diego Bay and in the same general region at Mayport, Florida, that have similarly reported no apparently consequential behavioral reactions or long-term effects on bottlenose dolphin populations (Lerma, 2014; Navy, 2015). Repeated exposures of individuals to relatively low levels of sound outside of preferred habitat areas are unlikely to significantly disrupt critical behaviors. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein and, if sound produced by project PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring. While vibratory driving associated with some project components may produce sound at distances of multiple kilometers from the pile driving site, thus intruding on higher-quality habitat, the project sites themselves and the majority of sound fields produced by the specified activities are within a heavily impacted, industrialized area. Therefore, we expect that animals annoyed by project sound would simply avoid the area and use more-preferred habitats. In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; (3) the absence of any significant habitat within the project area, including known areas or features of special significance for foraging or reproduction; and (4) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In addition, while some of the potentially affected stocks are considered depleted under the MMPA, it is unlikely that minor noise effects in a small, localized area would have any effect on the stocks’ ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, shortterm effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. 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 planned monitoring and mitigation measures, we find that the total marine mammal take from the Navy’s waterfront construction activities will have a negligible impact on the affected marine mammal species or stocks. Small Numbers Analysis Please see Table 7 for information relating to this small numbers analysis; as described previously, although we provide exposure estimates broken out by year and project component, we do not have specific information about when each project would be concluded E:\FR\FM\07JNR1.SGM 07JNR1 pmangrum on DSK3GDR082PROD with RULES Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations or therefore how many takes may actually accrue in any given year during the five-year period of validity of these regulations. An average of 176 incidents of behavioral harassment of bottlenose dolphins is predicted to occur annually over the five-year effective period of these regulations; we have no information allowing us to parse the predicted incidents amongst the stocks of bottlenose dolphin that may occur in the project area. However, because they would be expected to occur only rarely and/or seasonally, we assume that only small numbers of individuals of the northern Florida coastal, southern migratory coastal, and Jacksonville estuarine system stocks would be potentially present and available to be taken as a result of the specified activities. The South Carolina/Georgia coastal and southern Georgia estuarine system (SGES) stocks are expected to potentially be present more regularly. For the South Carolina/Georgia coastal stock, the predicted annual average number of incidents of take to be authorized is considered small— approximately four percent—even if each estimated taking was of a new individual. This is an extremely unlikely scenario as, for bottlenose dolphins in estuarine and nearshore waters, there is likely to be some overlap in individuals present day-today. The total number of authorized takes for bottlenose dolphins, if assumed to accrue solely to unique individuals of the SGES stock, is higher relative to the total stock abundance, which is currently estimated at 194 individuals. As described previously, this estimate is the result of surveys covering only a portion of the stock range and is assumed to underestimate the stock abundance. Regardless, these numbers represent the estimated incidents of take, not the number of individuals taken. That is, it is highly likely that a relatively small subset of SGES bottlenose dolphins would be harassed by project activities. SGES bottlenose dolphins range from Cumberland Sound at the Georgia-Florida border north to the Altamaha Sound, Georgia, an area spanning approximately 70 linear km of coastline and including habitat consisting of complex inshore and estuarine waterways. SGES dolphins show strong site fidelity (Balmer et al., 2013), and it is likely that the majority of SGES dolphins would not occur within waters ensonified by project activities. In summary, SGES dolphins are known to exhibit strong site fidelity (i.e., individuals do not generally range throughout the recognized overall SGES VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 stock range), and the specified activity will be stationary within a relatively enclosed industrial area not recognized as an area of any special significance that would serve to attract or aggregate dolphins. We therefore believe that the estimated numbers of take, were they to occur, likely represent repeated exposures of a much smaller number of bottlenose dolphins, and that these estimated incidents of take represent small numbers of bottlenose dolphins. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks. Mitigation In order to issue an incidental take authorization under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, ‘‘and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.’’ NMFS’s implementing 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 such 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)). The mitigation strategies described below largely follow those required and successfully implemented under previous incidental take authorizations issued in association with similar construction activities. Measurements from similar pile driving events were coupled with practical spreading loss and other relevant information to estimate zones of influence (ZOI; see ‘‘Estimated Take’’ section); these ZOI values were used to develop mitigation measures for pile driving activities at NSB Kings Bay. Background discussion related to underwater sound concepts and terminology was provided in the section on ‘‘Description of Sound Sources,’’ in our Federal Register notice of proposed rulemaking (January 3, 2017; 82 FR 684, at 694–695). Practical spreading loss is discussed in further detail previously in this preamble in the section on ‘‘Zones of Influence.’’ The ZOIs effectively represent the mitigation zone that would be established around PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 26369 each pile to prevent Level A harassment to dolphins, while providing estimates of the areas within which Level B harassment might occur. In addition to the specific measures described later in this section, the Navy will conduct briefings for construction supervisors and crews, marine mammal monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. All relevant personnel will watch applicable sections of the Navy’s Marine Species Awareness Training video. Relevant personnel will also follow NMFS’s ‘‘Southeast Region Marine Mammal and Sea Turtle Viewing Guidelines,’’ which are described in Attachment 1 of Navy’s Monitoring Plan. Monitoring and Shutdown for Pile Driving The following measures will apply to the Navy’s mitigation through shutdown and disturbance zones: Shutdown Zone—The purpose of a shutdown zone is to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing some undesirable outcome, such as auditory injury or behavioral disturbance of sensitive species (serious injury or death are unlikely outcomes even in the absence of mitigation measures). For all pile driving activities, the Navy will establish a minimum shutdown zone with radial distance of 15 m. This minimum zone is intended to prevent the already unlikely possibility of physical interaction with construction equipment and to establish a precautionary minimum zone with regard to acoustic effects. As described previously in the ‘‘Estimated Take’’ section, we used NMFS’s user spreadsheet, an optional companion spreadsheet associated with the alternative implementation methodology provided in Appendix D of NMFS’s acoustic guidance (NMFS, 2016), to calculate project, pile type, and pile driving methodology-specific zones within which auditory injury (i.e., Level A harassment) could occur. The user spreadsheet is publicly available online at www.nmfs.noaa.gov/pr/ acoustics/guidelines.htm. In using the spreadsheet, we assumed practical spreading loss and used supplementary information provided by the Navy regarding assumed number of piles driven per day and number of pile strikes necessary to install a pile (for E:\FR\FM\07JNR1.SGM 07JNR1 pmangrum on DSK3GDR082PROD with RULES 26370 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations impact pile driving) and daily duration of pile driving (for vibratory pile driving). Assumed source levels are provided in Table 5. In most cases, this minimum shutdown zone of 15 m is expected to contain the area in which auditory injury could occur. All predicted auditory injury zones are less than the minimum 15 m shutdown zone (radial distance range: 0.5–13.1 m), with the exception of impact driving of 30-in steel piles associated with Project 3F (radial distance of 38 m) and impact driving of 24-in steel piles associated with Project 4B (radial distance of 16.6 m). In all cases, predicted injury zones are calculated on the basis of cumulative sound exposure, as peak pressure source levels are below the injury threshold for mid-frequency cetaceans. For these two scenarios we require shutdown zones of 40 m and 20 m radial distance, respectively. Injury zone predictions generated using the optional user spreadsheet are precautionary due to a number of simplifying assumptions. For example, the spreadsheet tool assumes that marine mammals remain stationary during the activity and does not account for potential recovery between intermittent sounds. In addition, the tool incorporates the acoustic guidance’s weighting functions through use of a single-frequency weighting factor adjustment intended to represent the signal’s 95 percent frequency contour percentile (i.e., upper frequency below which 95 percent of total cumulative energy is contained; Charif et al., 2010). This will typically result in higher predicted exposures for broadband sounds, since only one frequency is being considered, compared to exposures associated with the ability to fully incorporate the guidance’s weighting functions. Disturbance Zone—Disturbance zones are the areas in which SPLs equal or exceed 160 and 120 dB root mean square (rms) (for impulsive and nonimpulsive, continuous sound, respectively). Disturbance zones provide utility for monitoring conducted for mitigation purposes (i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone, and thus prepare for potential shutdowns of activity. However, the primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 later (see ‘‘Monitoring and Reporting’’). Nominal radial distances for disturbance zones are shown in Table 6. In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer’s location and the location of the pile being driven are known, and the location of the animal may be estimated as a distance from the observer and then compared to the location from the pile. It may then be estimated whether the animal was exposed to sound levels constituting incidental harassment on the basis of predicted distances to relevant thresholds in post-processing of observational data, and a precise accounting of observed incidents of harassment created. This information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes, in cases where the entire zone was not monitored and/or all days of activity were not monitored. Monitoring Protocols—Monitoring would be conducted before, during, and after pile driving activities. In addition, observers will record all incidents of marine mammal occurrence, regardless of distance from activity, and monitors will document any behavioral reactions in concert with distance from piles being driven. Observations made outside the shutdown zone will not result in shutdown. That pile segment will be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities would be halted. Monitoring will take place from 15 minutes prior to initiation through 30 minutes post-completion of pile driving activities. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes. Observation of shutdown zones will always occur, but observation of the larger disturbance zones will occur on a subset of days associated with each specific project (see projectspecific details provided in ‘‘Monitoring and Reporting,’’ later in this document). Please see the Monitoring Plan, developed by the Navy in agreement with NMFS, for full details of the monitoring protocols. The following additional measures apply to visual monitoring: (1) Monitoring will be conducted by designated observers, who will be placed at the best vantage point(s) practicable (as defined in the Monitoring Plan) to monitor for marine mammals and implement shutdown/ delay procedures when applicable by PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 calling for the shutdown to the hammer operator. Observers would have no other construction-related tasks while conducting monitoring. Observers should have the following minimum qualifications: • Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water’s surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target; • Ability to conduct field observations and collect data according to assigned protocols; • Experience or training in the field identification of bottlenose dolphins, including the identification of behaviors; • Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; • Writing skills sufficient to document observations including, but not limited to: The number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury of marine mammals from construction noise within a defined shutdown zone; and marine mammal behavior; and • Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary. (2) Prior to the start of pile driving activity, the shutdown zone will be monitored for 15 minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals. Animals will be allowed to remain in the shutdown zone (i.e., must leave of their own volition), and their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible (i.e., when not obscured by dark, rain, fog, etc.). In addition, if such conditions should arise during impact pile driving that is already underway, the activity would be halted. (3) If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal. Monitoring will be conducted E:\FR\FM\07JNR1.SGM 07JNR1 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations throughout the time required to drive a pile and for thirty minutes following the conclusion of pile driving. pmangrum on DSK3GDR082PROD with RULES Soft Start The use of a soft start procedure is believed to provide additional protection to marine mammals by warning marine mammals or providing them with a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in ‘‘bouncing’’ of the hammer as it strikes the pile, resulting in multiple ‘‘strikes.’’ The Navy will utilize soft start techniques for impact pile driving. We require an initial set of three strikes from the impact hammer at reduced energy, followed by a 30second waiting period, then 2 subsequent 3-strike sets. Soft start will be required at the beginning of each day’s impact pile driving work and at any time following a cessation of impact pile driving of thirty minutes or longer; the requirement to implement soft start for impact driving is independent of whether vibratory driving has occurred within the prior 30 minutes. We have carefully evaluated the Navy’s proposed mitigation measures and considered a range of other measures in the context of ensuring that we prescribed the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation. Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below: (1) Avoidance or minimization of injury or death of marine mammals VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 wherever possible (goals 2, 3, and 4 may contribute to this goal). (2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only). (3) A reduction in the number (total number or number at a biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only). (4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only). (5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time. (6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation. Based on our evaluation of these measures, we have determined that the planned mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal 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 incidental take authorization 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 incidental take 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 in the proposed action area. Any monitoring requirement we prescribe should improve our PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 26371 understanding of one or more of the following: • Occurrence of marine mammal species in action area (e.g., presence, abundance, distribution, density). • 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 action; or (4) biological or behavioral context of exposure (e.g., age, calving, or feeding areas). • Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological). • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of an individual; or (2) population, species, or stock. • Effects on marine mammal habitat and resultant impacts to marine mammals. • Mitigation and monitoring effectiveness. The Navy provided a separate Marine Mammal Monitoring Plan, which is available online at www.nmfs.noaa.gov/ pr/permits/incidental/construction.htm. Visual Marine Mammal Observations The Navy will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Navy would monitor all shutdown zones at all times, and would monitor disturbance zones during a varying subset of total project days. Disturbance zone monitoring effort during the first two years of project activities is expected to provide verification during the early stages of the project regarding assumed numbers of bottlenose dolphins present in the area. If compliance monitoring results suggest that the actual number of incidental take events may differ significantly from the number originally authorized, the Navy would consult with NMFS. The Navy will conduct monitoring before, during, and after pile driving, with observers located at the best practicable vantage points. Based on our requirements, the Navy will implement the following procedures for pile driving: • Marine mammal observers will be located at the best vantage point(s) in E:\FR\FM\07JNR1.SGM 07JNR1 pmangrum on DSK3GDR082PROD with RULES 26372 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations order to properly see the entire shutdown zone and as much of the disturbance zone as possible. • During all observation periods, observers will use binoculars and the naked eye to search continuously for marine mammals. • If the shutdown zones are obscured by fog or poor lighting conditions, pile driving at that location will not be initiated until that zone is visible. Should such conditions arise while impact driving is underway, the activity would be halted. • The shutdown zone around the pile will be monitored for the presence of marine mammals before, during, and after all pile driving activity, while disturbance zone monitoring will be implemented according to the schedule proposed here. Notional marine mammal observation locations are depicted in Figures 3–14 of the Navy’s monitoring plan. Total days planned for each project are provided above in Table 1. Project-specific disturbance zone monitoring is described in the following list. • Project 1A—A minimum of three observers will be deployed to monitor the disturbance zone on a minimum of ten days of vibratory pile driving. • Project 1B—Only two total days of work are planned as part of Project 1B, and no disturbance zone monitoring will occur. • Project 2—Only impact pile driving is proposed in association with Project 2; therefore, the disturbance zone would be visible during shutdown zone monitoring. However, a minimum of two observers will be deployed to monitor the zones on a minimum of three of the seven anticipated days of pile driving. • Project 3A—This project is expected to occur in two phases, beginning in FY2017 and FY2022. During phase one, only two total days of work are planned and no disturbance zone monitoring will occur. During phase two, a minimum of three observers will be deployed to monitor the disturbance zone on a minimum of three days of vibratory pile driving. • Project 3B—A minimum of three observers will be deployed to monitor the disturbance zone on a minimum of five days of vibratory pile driving. • Projects 3C, 3D, and 3E—A minimum of two observers will be deployed to monitor the disturbance zone during all impact driving associated with these projects. • Project 3F—A minimum of three observers will be deployed to monitor the disturbance zone on a minimum of two days of vibratory pile driving. VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 • Project 3G—A minimum of three observers will be deployed to monitor the disturbance zone on a minimum of four days of vibratory pile driving. • Project 4A—A minimum of four observers will be deployed to monitor the disturbance zone on a minimum of eight days of vibratory pile driving. • Project 4B—A minimum of four observers will be deployed to monitor the disturbance zone on a minimum of three days of vibratory pile driving. • Project 5—A minimum of four observers will be deployed to monitor the disturbance zone on a minimum of three days of vibratory pile driving. • Projects 6A and 6B—A minimum of five observers will be deployed to monitor the disturbance zone on a minimum of twelve days of vibratory pile driving. Individuals implementing the monitoring protocol will assess its effectiveness using an adaptive approach. Monitoring biologists will use their best professional judgment throughout implementation and seek improvements to these methods when deemed appropriate. Any modifications to the protocol will be coordinated between NMFS and the Navy. Data Collection We require that observers use standardized data forms. Among other pieces of information, the Navy will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. We require that, at a minimum, the following information be collected on the sighting forms: • Date and time that monitored activity begins or ends; • Construction activities occurring during each observation period; • Weather parameters (e.g., wind speed, percent cloud cover, visibility); • Water conditions (e.g., sea state, tide state); • Species, numbers, and, if possible, sex and age class of marine mammals; • Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity; • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; • Description of implementation of mitigation measures (e.g., shutdown or delay). • Locations of all marine mammal observations; and • Other human activity in the area. PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 Acoustic Monitoring The Navy will implement a sound source level verification study during activities associated with specific project components of interest. Because data is relatively lacking for these pile types, data collection would be targeted towards impact and vibratory driving of concrete, timber, and composite piles. A sample scope of work for acoustic monitoring is provided as Attachment 3 of the Navy’s monitoring plan. The exact specifications of the acoustic monitoring work would be finalized in consultation with Navy personnel, subject to constraints related to logistics and security requirements. Reporting of measured sound level signals will include the average, minimum, and maximum rms value and frequency spectra for each pile monitored. Peak and single-strike SEL values would also be reported for impact pile driving. Acoustic monitoring would be conducted in association with Project 1A (impact driving of 18–24″ concrete piles and vibratory removal of 16″ timber piles); Project 2 (impact driving of 14″ steel H piles); Project 4A (impact driving of 18–24″ concrete piles and vibratory removal of 24″ concrete piles); and Project 5 (vibratory removal of 18″ timber piles and vibratory installation of 18″ composite piles). Propagation loss measurements will also be part of the plan. Marine Mammal Surveys Subject to funding availability, additional work would be performed to describe the spatial and temporal distributions of bottlenose dolphins and their densities in areas that may be affected by the specified activities. Surveys would be performed as soon as practicable. Reporting A draft report will be submitted to NMFS within 90 days of the completion of the monitoring period for each project. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals, a complete description of all mitigation shutdowns and the results of those actions, and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within thirty days following resolution of comments on the draft report. The Navy will also submit a comprehensive summary report E:\FR\FM\07JNR1.SGM 07JNR1 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations following conclusion of the specified activities. Adaptive Management The regulations governing the take of marine mammals incidental to Navy waterfront construction activities contain an adaptive management component. The reporting requirements associated with this final rule are designed to provide NMFS with monitoring data from the previous year 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 on marine mammals and if the measures are practicable. The following are some of the possible sources of applicable data to be 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 subsequent LOAs. Changes to the Proposed Regulations In response to public comment, and as a result of clarifying discussions with the Navy, we made certain changes to the proposed regulations as described here. These changes are considered minor and do not affect any of our preliminary determinations. pmangrum on DSK3GDR082PROD with RULES Monitoring We have added a requirement to conduct disturbance zone monitoring for Project 2, and have clarified that disturbance zone monitoring for Projects 3C–E would occur within the estimated 1,000-m disturbance zone associated with impact pile driving. We have also clarified that required acoustic monitoring will include measurements of propagation loss in addition to measurements of sound source levels. Finally, in order to accomplish acoustic monitoring of composite piles we have substituted Project 5 for Projects 6A–B in the acoustic monitoring plan. VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 Impact on Availability of Affected Species for Taking for Subsistence Uses There are no relevant subsistence uses of marine mammals implicated by these actions. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Endangered Species Act (ESA) No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that section 7 consultation under the ESA is not required. National Environmental Policy Act (NEPA) In our Federal Register notice of proposed rulemaking (January 3, 2017; 82 FR 684), we stated our intent to independently evaluate the Navy’s draft EA and determine whether or not to adopt it. Since publication of the proposed rule, NOAA has completed revisions to NOAA’s procedures for implementing NEPA and related authorities, as contained in the Companion Manual to NOAA Administrative Order (NAO) 216–6A (Companion Manual). The Companion Manual includes NOAA’s revised categorical exclusions (CE) and related extraordinary circumstances. In accordance with the Companion Manual and NAO 216–6A, we have determined that issuance of this final rule qualifies to be categorically excluded from further NEPA review. Issuance of this final rule is consistent with categories of activities identified in CE B4 of the Companion Manual and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual that would preclude application of this CE. NMFS has prepared a CE memorandum for the record. 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. Navy is the sole entity that would be subject to the requirements of PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 26373 these regulations, and the U.S. Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. No comments were received regarding this certification. As a result, a regulatory flexibility analysis is not required and none has been prepared. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. However, this rule does not contain a collection-of-information requirement subject to the provisions of the PRA because the applicant is a Federal agency. List of Subjects in 50 CFR Part 217 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: June 2, 2017. Samuel D. Rauch, III, Acting Assistant Administrator for Fisheries, National Marine Fisheries Service. For reasons set forth in the preamble, NMFS amends 50 CFR part 217 as follows: PART 217—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 217 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq. Subpart Y—[Reserved] ■ 2. Add reserved subpart Y. ■ 3. Add subpart Z to read as follows: Subpart Z—Taking Marine Mammals Incidental to Navy Waterfront Construction Activities at Naval Submarine Base Kings Bay Sec. 217.250 Specified activity and specified geographical region. 217.251 Effective dates. 217.252 Permissible methods of taking. 217.253 Prohibitions. 217.254 Mitigation requirements. 217.255 Requirements for monitoring and reporting. 217.256 Letters of Authorization. 217.257 Renewals and modifications of Letters of Authorization. 217.258 [Reserved] 217.259 [Reserved] E:\FR\FM\07JNR1.SGM 07JNR1 26374 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations § 217.250 Specified activity and specified 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 occurs in the area outlined in paragraph (b) of this section and that occurs incidental to waterfront construction activities. (b) The taking of marine mammals by Navy may be authorized in a Letter of Authorization (LOA) only if it occurs within waters adjacent to Naval Submarine Base Kings Bay and Crab Island. § 217.251 Effective dates. Regulations in this subpart are effective from July 12, 2017, through July 11, 2022. § 217.252 Permissible methods of taking. Under LOAs issued pursuant to § 216.106 of this chapter and § 217.256, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not intentionally, take marine mammals within the area described in § 217.250(b) by Level B harassment associated with waterfront construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. pmangrum on DSK3GDR082PROD with RULES § 217.253 Prohibitions. Notwithstanding takings contemplated in § 217.250 and authorized by a LOA issued under § 216.106 of this chapter and § 217.256, no person in connection with the activities described in § 217.250 may: (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.256; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal specified in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses. § 217.254 Mitigation requirements. When conducting the activities identified in § 217.250, the mitigation measures contained in any LOA issued under § 216.106 of this chapter and VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 § 217.256 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions: (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 shall conduct briefings for construction supervisors and crews, marine mammal monitoring team, acoustic monitoring team, and Navy staff prior to the start of the first pile driving activity conducted pursuant to this chapter, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. (b) Except for pile driving covered under paragraphs (c) and (d) of this section, for all pile driving activity, the Navy shall implement a minimum shutdown zone of 15 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease. (c) For impact pile driving associated with Project 3F (Warping Wharf with Capstan), the Navy shall implement a minimum shutdown zone of 40 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease. (d) For impact pile driving associated with Project 4B (Small Craft Berth Site VI), the Navy shall implement a minimum shutdown zone of 20 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease. (e) The Navy shall deploy marine mammal observers as indicated in the final Marine Mammal Monitoring Plan and as described in § 217.255 of this chapter. (1) For all pile driving activities, a minimum of one observer shall be stationed at the active pile driving rig or within reasonable proximity of the rig in order to monitor the shutdown zone. (2) Monitoring shall take place from 15 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-activity monitoring shall be conducted for 15 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to remain in the shutdown zone (i.e., must leave of PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 their own volition) and their behavior shall be monitored and documented. Monitoring shall occur throughout the time required to drive a pile. The entire shutdown zone must be visible before it can be deemed clear of marine mammals. (3) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location shall 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 fifteen minutes have passed without re-detection of the animal. (4) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed from 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. (f) The Navy shall use soft start techniques for impact pile driving. Soft start for impact drivers requires contractors to provide an initial set of strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. Soft start shall 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 thirty minutes or longer. (g) Pile driving shall only be conducted during daylight hours. § 217.255 Requirements for monitoring and reporting. (a) Trained observers shall complete applicable portions of the Navy’s Marine Species Awareness Training, as well as a general environmental awareness briefing conducted by Navy staff. At minimum, training shall include identification of bottlenose dolphins and relevant mitigation and monitoring requirements. All observers shall have no other construction-related tasks while conducting monitoring. (b) For shutdown zone monitoring, the Navy shall report on implementation of shutdown or delay procedures, including whether the procedures were not implemented and why (when relevant). (c) The Navy shall deploy additional observers to monitor disturbance zones according to the minimum requirements defined in this chapter. These observers shall collect sighting data and behavioral responses to pile driving for E:\FR\FM\07JNR1.SGM 07JNR1 pmangrum on DSK3GDR082PROD with RULES Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations marine mammal species observed in the region of activity during the period of activity, and shall communicate with the shutdown zone observer as appropriate with regard to the presence of marine mammals. All observers shall be trained in identification and reporting of marine mammal behaviors. (1) During Project 1A (Tug Pier), Navy shall deploy a minimum of three additional marine mammal monitoring observers on a minimum of ten days of vibratory pile driving activity. (2) During Project 2 (UMC Layberth (P–661)), Navy shall deploy a minimum of two additional marine mammal monitoring observers on a minimum of three days of impact pile driving activity. (3) During the fiscal year 2022 phase of Project 3A (Explosives Handling Wharf #2), Navy shall deploy a minimum of three additional marine mammal monitoring observers on a minimum of three days of vibratory pile driving activity. (4) During Project 3B ((Dry Dock) Interface Wharf), Navy shall deploy a minimum of three additional marine mammal monitoring observers on a minimum of five days of vibratory pile driving activity. (5) During Projects 3C, 3D, and 3E (Refit Wharves #1–3), Navy shall deploy a minimum of two additional marine mammal monitoring observers on all days of pile driving activity. (6) During Project 3F (Warping Wharf with Capstan), Navy shall deploy a minimum of three additional marine mammal monitoring observers on a minimum of two days of vibratory pile driving activity. (7) During Project 3G (Tug Pier), Navy shall deploy a minimum of three additional marine mammal monitoring observers on a minimum of four days of vibratory pile driving activity. (8) During Project 4A (Transit Protection System (TPS) Pier), Navy shall deploy a minimum of four additional marine mammal monitoring observers on a minimum of eight days of vibratory pile driving activity. (9) During Project 4B (Small Craft Berth Site VI), Navy shall deploy a minimum of four additional marine mammal monitoring observers on a minimum of three days of vibratory pile driving activity. (10) During Project 5 (Magnetic Silencing Facility Repairs), Navy shall deploy a minimum of four additional marine mammal monitoring observers on a minimum of three days of vibratory pile driving activity. (11) During Projects 6A (Demolition of TPS Pier) and 6B (Demolition of North Trestle), Navy shall deploy a minimum VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 of five additional marine mammal monitoring observers on a minimum of twelve days of vibratory pile driving activity. (d) The Navy shall conduct acoustic data collection (sound source verification and propagation loss), in accordance with NMFS’s guidelines, in conjunction with Project 1A (Tug Pier), Project 2 (Unspecified Minor Construction Layberth Fender Pile Modification), Project 4A (TPS Pier), and Project 5 (Magnetic Silencing Facility). (e) Reporting: (1) Annual reporting: (i) Navy shall submit an annual summary report to NMFS not later than ninety days following the end of inwater work for each project. Navy shall provide a final report within thirty days following resolution of comments on the draft report. (ii) These reports shall contain, at minimum, the following: (A) Date and time that monitored activity begins or ends; (B) Construction activities occurring during each observation period; (C) Weather parameters (e.g., wind speed, percent cloud cover, visibility); (D) Water conditions (e.g., sea state, tide state); (E) Species, numbers, and, if possible, sex and age class of marine mammals; (F) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity; (G) Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; (H) Description of implementation of mitigation measures (e.g., shutdown or delay); (I) Locations of all marine mammal observations; and (J) Other human activity in the area. (2) Navy shall submit a comprehensive summary report to NMFS no later than 90 days following the conclusion of marine mammal monitoring efforts described in this chapter. (3) Navy shall submit acoustic monitoring reports as necessary pursuant to § 217.255(d). (f) Reporting of injured or dead marine mammals: (1) In the unanticipated event that the activity defined in § 217.250 clearly causes the take of a marine mammal in a prohibited manner, Navy shall immediately cease such activity and report the incident to the Office of Protected Resources (OPR), NMFS, and to the Southeast Regional Stranding Coordinator, NMFS. Activities shall not PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 26375 resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Navy to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Navy may not resume their activities until notified by NMFS. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mammal observations in the 24 hours preceding the incident; (v) Species identification or description of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s). Photographs may be taken once the animal has been moved from the waterfront area. (2) In the event that Navy discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), Navy shall immediately report the incident to OPR and the Southeast Regional Stranding Coordinator, NMFS. The report must include the information identified in paragraph (f)(1) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with Navy to determine whether additional mitigation measures or modifications to the activities are appropriate. (3) In the event that Navy discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.250 (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), Navy shall report the incident to OPR and the Southeast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. Navy shall provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. Photographs may be taken once the animal has been moved from the waterfront area. § 217.256 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, Navy must apply for and obtain a LOA. (b) A LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. E:\FR\FM\07JNR1.SGM 07JNR1 26376 Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Rules and Regulations (c) If a LOA expires prior to the expiration date of these regulations, 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 a LOA, Navy must apply for and obtain a modification of the LOA as described in § 217.257. (e) The LOA shall set forth: (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 shall 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 a LOA shall be published in the Federal Register within thirty days of a determination. pmangrum on DSK3GDR082PROD with RULES § 217.257 Renewals and modifications of Letters of Authorization. (a) A LOA issued under § 216.106 of this chapter and § 217.256 for the activity identified in § 217.250 shall be renewed or modified upon request by the applicant, provided that: (1) The proposed 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 (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), and (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented. (b) For a LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or that 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) A LOA issued under § 216.106 of this chapter and § 217.256 for the VerDate Sep<11>2014 15:10 Jun 06, 2017 Jkt 241001 activity identified in § 217.250 may be modified by NMFS under the following circumstances: (1) Adaptive Management—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 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 a LOA: (A) Results from Navy’s monitoring from previous years. (B) Results from other marine mammal and/or sound research or studies. (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. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies—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 § 216.106 of this chapter and § 217.256, a LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action. § 217.258 [Reserved] § 217.259 [Reserved] [FR Doc. 2017–11805 Filed 6–6–17; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 170515489–7489–01] RIN 0648–BG89 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Red Snapper Management Measures; Compliance With Court Order National Marine Fisheries Service (NMFS), National Oceanic and AGENCY: PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. This final rule revises the Gulf of Mexico (Gulf) red snapper commercial and recreational sector allocations of the stock annual catch limit (ACL), the commercial and recreational quotas, and the recreational annual catch targets (ACTs), including ACTs for the private angling and forhire (charter vessels and headboats) components of the recreational sector. A court order directs NMFS to reinstate the previous red snapper sector allocations, and the corresponding sector quotas (which are equivalent to the ACLs), to 51 percent commercial and 49 percent recreational. The intent of this final rule is to ensure that the regulations reflect the sector allocations and corresponding catch levels as required by the court order. DATES: This final rule is effective on June 6, 2017. FOR FURTHER INFORMATION CONTACT: Kelli O’Donnell, NMFS Southeast Regional Office, telephone: 727–824– 5305, email: kelli.odonnell@noaa.gov. SUPPLEMENTARY INFORMATION: The Gulf reef fish fishery includes red snapper and is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). All weights for red snapper below apply as round weight. The Secretary of Commerce approved Amendment 28 to the FMP on March 23, 2016. The purpose of Amendment 28 was to reallocate the red snapper harvest consistent with the 2014 red snapper update assessment to ensure the allowable catch and recovery benefits from a rebuilding stock were fairly and equitably allocated between the commercial and recreational sectors to achieve optimum yield. On April 28, 2016, NMFS published a final rule implementing Amendment 28 (81 FR 25576). The final rule for Amendment 28 revised the allocation of the red snapper ACL between the commercial and recreational sectors to be 48.5 percent and 51.5 percent, respectively, and consequently revised the commercial and recreational quotas and ACLs, as well as the recreational ACTs (81 FR 25576, April 28, 2016). However, a court decision in Guindon v. Pritzker, 2017 SUMMARY: E:\FR\FM\07JNR1.SGM 07JNR1

Agencies

[Federal Register Volume 82, Number 108 (Wednesday, June 7, 2017)]
[Rules and Regulations]
[Pages 26360-26376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11805]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 160830798-7517-02]
RIN 0648-BG32

Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Waterfront Construction

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

ACTION: Final rule.

-----------------------------------------------------------------------

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 incidental to conducting waterfront
construction at Naval Submarine Base Kings Bay, GA, over the course of
five years (2017-2022). These regulations, which allow for the issuance
of Letters of Authorization (LOA) for the incidental take of marine
mammals during the described activities and specified timeframes,
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on marine mammal species
or stocks and their habitat, and establish requirements pertaining to
the monitoring and reporting of such taking.

DATES: Effective from July 12, 2017, through July 11, 2022.

ADDRESSES: A copy of Navy's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: www.nmfs.noaa.gov/pr/

[[Page 26361]]

permits/incidental/construction.htm. In case of problems accessing
these documents, please call the contact listed below (see FOR FURTHER
INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

These regulations, issued under the authority of the MMPA (16
U.S.C. 1361 et seq.), establish a framework for authorizing the take of
marine mammals incidental to the Navy's waterfront construction
activities at Naval Submarine Base Kings Bay, GA (NSB Kings Bay). The
Navy plans to repair (including direct repairs and repairs by component
replacement) in-water structures at NSB Kings Bay, construct a new
Transit Protection System Operational Support Facility, and extend the
existing Layberth Pier in order to (1) address critical damage and
mission and safety requirements, (2) limit further deterioration and
increase the useful life of the structures, and (3) upgrade
infrastructure to meet requirements of new submarine technology.
Construction will include use of impact and vibratory pile driving,
including installation and removal of steel, concrete, composite, and
timber piles.
We received an application from the Navy requesting five-year
regulations and authorization to take bottlenose dolphins. Take is
anticipated to occur by Level B harassment incidental to impact and
vibratory pile installation and removal. The regulations are valid from
2017 to 2022. Please see the ``Background'' section 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 five 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, as well as monitoring and reporting
requirements. Section 101(a)(5)(A) of the MMPA and the implementing
regulations at 50 CFR part 216, subpart I provide the legal basis for
issuing this final rule containing five-year regulations, and for any
subsequent LOAs. As directed by this legal authority, this final rule
contains mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Final Rule

Following is a summary of the major provisions of this final rule
regarding Navy waterfront construction activities. We have determined
that the Navy's adherence to the planned mitigation, monitoring, and
reporting measures listed below will achieve the least practicable
adverse impact on the affected marine mammals. These measures include:
Required monitoring of the waterfront construction areas
to detect the presence of marine mammals before beginning construction
activities.
Shutdown of construction activities under certain
circumstances to avoid injury of marine mammals.
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.

Background

Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1371
(a)(5)(A) and (D)) direct 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
if certain findings are made and either regulations are issued or, if
the taking is limited to harassment, a notice of a proposed
authorization is provided to the public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
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.
Except with respect to certain activities not pertinent here, 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).

Summary of Request

On January 19, 2016, we received an adequate and complete request
from the Navy for authorization to take marine mammals incidental to
waterfront construction activities. On February 17, 2016 (81 FR 8048),
we published a notice of receipt of Navy's application in the Federal
Register, requesting comments and information related to the request
for 30 days. We did not receive any comments. The Navy provided a
revised final draft incorporating minor revisions on March 17, 2017.
The Navy plans to repair in-water structures at NSB Kings Bay, as
well as to construct new facilities and modify existing facilities.
These repairs, upgrades, and new construction would include use of
impact and vibratory pile driving, including installation and removal
of steel, concrete, composite, and timber piles. Hereafter (unless
otherwise specified or detailed), we use the term ``pile driving'' to
refer to both pile installation and pile removal. The use of both
vibratory and impact pile driving is expected to produce underwater
sound at levels that have the potential to result in behavioral
harassment of marine mammals. Only the bottlenose dolphin (Tursiops
truncatus truncatus) is expected to be present. The regulations are
valid for five years, from July 12, 2017, through July 11, 2022.

Description of the Specified Activity

Additional detail regarding the specified activity was provided in
our Federal Register notice of proposed rulemaking (82 FR 684; January
3, 2017); please see that notice or the Navy's application for more
information.

Overview

NSB Kings Bay is the Navy's east coast home port for ballistic
missile nuclear submarines supporting the Trident II (D-5) missile. NSB
Kings Bay manages, maintains, and operates Trident ballistic missile
(SSBN) and guided missile (SSGN) submarines, Trident II D-5 and
Tomahawk Land Attack Missiles and systems, and infrastructure and
quality of life facilities and programs. In 2010, the Navy found that
conditions of water-

[[Page 26362]]

based support facilities varied widely from good to seriously
deteriorated. Continuous monitoring of these conditions by Navy at NSB
Kings Bay has confirmed the advanced deterioration and critical nature
of some issues that pose operational and safety risks. Additionally,
other areas of initial deterioration were identified which require
remedy in order to maintain the useful life of existing structures.
Damage observed includes deteriorated concrete piles, pile caps, and
deck components (cracked, spalled, delaminated, exposed/corroded
internal reinforcing steel structures); marine pest (marine wood borer)
damage on wooden piles; broken or unmaintained mooring fittings; and
corrosion on steel piles and pile caps. In some cases, it is more cost
effective to demolish older structures that are deteriorated and not
well configured to fit existing and upcoming assets and replace them
with new structures that are specifically designed to meet new mission
requirements.
To ensure the Navy can continue its mission of supporting the Fleet
Ballistic Missile System and Trident Submarine Program, the Navy plans
to repair (including direct repairs and repairs by component
replacement) in-water structures at NSB Kings Bay, construct a new
Transit Protection System Operational Support Facility, and extend the
existing Layberth Pier. These repairs, upgrades, and new construction
will (1) address critical damage and mission and safety requirements,
(2) limit further deterioration and increase the useful life of the
structures, and (3) upgrade infrastructure to meet requirements of new
submarine technology. Construction will include use of impact and
vibratory pile driving, including installation and removal of steel,
concrete, composite, and timber piles. The specified activity is
comprised of six distinct projects, four of which are comprised of
multiple smaller projects.

Dates and Duration

The specified activity may occur at any time during the five-year
period of validity of the regulations. Planned dates of individual
projects and project components are shown in Table 1, however, project
dates may shift. In-water construction activities would occur during
daylight hours, defined here as one hour post-sunrise to one hour prior
to sunset.

Specified Geographical Region

NSB Kings Bay is located in southeastern Georgia, approximately
four miles inland (straight line distance) from the Atlantic Ocean, and
approximately eight miles north of the Georgia-Florida border, along
the western shore of Cumberland Sound (see Figure 2-1 in the Navy's
application). NSB Kings Bay is an approximately 16,000-acre
installation including the land areas and adjacent water areas along
Kings Bay and Cumberland Sound between Marianna Creek to the north and
Mill Creek to the south, and is restricted from general public access.
This estuarine environment receives salt water input from ocean
waters through tidal exchange, and fresh water input from rivers,
tributaries, and stormwater outfalls. The large tidal range and strong
currents result in tidally mixed waters that are refreshed on a daily
basis. Please see section 2 of the Navy's application for more
information.

Detailed Description of Activities

The Navy plans to remove deteriorated timber, concrete, and steel
piles and replace them with concrete, composite, and steel piles. New
construction would involve installation of steel, concrete, and
composite piles. Aspects of construction activities other than pile
driving are not anticipated to have the potential to result in
incidental take of marine mammals because they are either above water
or do not produce levels of underwater sound with likely potential to
result in marine mammal disturbance. Therefore, we do not discuss
elements of construction activity other than pile driving. No
concurrent pile driving would occur. Project specific pile totals are
given in Table 1.
A vibratory hammer will be used for all pile removal work. If use
of the vibratory hammer is not feasible for pile installation (i.e.,
with steel piles), a Delmag Pile Hammer D62-22 or equivalent impact
hammer will be used. The Delmag Pile Hammer D62-22 is a single acting
diesel impact hammer with energy capacity of 76,899-153,799 foot-
pounds. The most effective and efficient method of pile installation
available will be implemented for each project. The method fitting
these criteria may vary based on specific project requirements and
local conditions. In some areas of Kings Bay a limestone layer can be
found relatively close to the substrate/water interface. This type of
layer requires impact driving because vibratory installation will not
drive the piles to a sufficient depth. Impact driving, while generally
producing higher levels of sound, also minimizes the net amount of
active driving time, thus reducing the amount of time during which
marine mammals may be exposed to noise. Impact or vibratory pile
driving could occur on any day, but would not occur simultaneously.

Table 1--Pile Driving Summary
--------------------------------------------------------------------------------------------------------------------------------------------------------
Project Total number Estimated Total
start Water Pile size -------------------------- number of maximum in-
ID (fiscal depth (in) Pile type Installation method strikes per water work
year) (ft) Installed Removed pile days
--------------------------------------------------------------------------------------------------------------------------------------------------------
1A.................. 2017 24 18 Concrete.............. 148 0 Impact............... 60 30
24 Concrete.............. 18 0 Impact............... 70 4
16 Timber................ 0 159 n/a.................. n/a 31
1B.................. 2017 15 16 Composite............. 2 0 Vibratory............ n/a 1
16 Timber................ 0 2 n/a.................. n/a 1
2................... 2017 46 14 Steel (H)............. 55 0 Impact............... 80 7
3A.................. 2017 46 24 Steel................. 2 2 Impact............... 70 2
2022 24 Concrete.............. 3 3 Impact............... 75 2
24 Steel................. 10 10 Impact............... 70 7
3B.................. 2021 46 14 Steel (H)............. 99 99 Impact............... 60 15
3C.................. 2018 46 24 Steel................. 6 0 Impact............... 70 1
30 Steel................. 0 6 n/a.................. n/a 1
3D.................. 2017 46 24 Steel................. 6 0 Impact............... 70 1
30 Steel................. 0 6 n/a.................. n/a 1
3E.................. 2018 46 24 Steel................. 6 0 Impact............... 70 1
30 Steel................. 0 6 n/a.................. n/a 1

[[Page 26363]]

3F.................. 2021 46 30 Steel................. 8 8 Impact............... 70 4
3G.................. 2022 30 14 Steel (H)............. 77 77 Impact............... 60 16
4A.................. 2020 35 24 Concrete.............. 165 0 Impact............... 200 55
18 Concrete.............. 50 0 Impact............... 80 17
24 Concrete.............. 0 121 n/a.................. n/a 8
4B.................. 2020 35 24 Steel................. 30 30 Impact............... 100 8
5................... 2017 46 18 Composite............. 18 0 Vibratory............ n/a 3
16 Timber................ 0 18 n/a.................. n/a 3
6A.................. 2022 46 24 Concrete.............. 0 649 n/a.................. n/a 41
6B.................. 2022 46 24 Concrete.............. 0 121 n/a.................. n/a 6
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 2 shows total piles planned for installation (I) and removal
(R) by pile type and size in total and per year. Note that no pile
driving is planned for fiscal year (FY) 2019. Below we provide further
detail specific to individual projects and project components. For
additional detail, please see section 1 of the Navy's application.

Table 2--Pile Totals by Type and Year
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY2017 FY2018 FY2020 FY2021 FY2022 Totals
Pile type Size -----------------------------------------------------------------------------------------------------------
(in) I R I R I R I R I R I R
--------------------------------------------------------------------------------------------------------------------------------------------------------
Composite.......................... 16 2 0 0 0 0 0 0 0 0 0 2 0
18 18 0 0 0 0 0 0 0 0 0 18 0
Concrete........................... 18 148 0 0 0 50 0 0 0 0 0 198 0
24 18 0 0 0 165 121 0 0 3 773 186 894
Steel (H).......................... 14 55 0 0 0 0 0 99 99 77 77 231 176
Steel.............................. 24 8 2 12 0 30 30 0 0 10 10 60 42
30 0 6 0 12 0 0 8 8 0 0 8 26
Timber............................. 16 0 179 0 0 0 0 0 0 0 0 0 179
-----------------------------------------------------------------------------------------------------------
Totals......................... ....... 249 187 12 12 245 151 107 107 90 860 703 1,317
--------------------------------------------------------------------------------------------------------------------------------------------------------

Comments and Responses

We published a notice of proposed rulemaking in the Federal
Register on January 3, 2017 (82 FR 684). During the 30-day comment
period, we received a letter from the Marine Mammal Commission
(Commission) and comments from two private citizens. The comments and
our responses are described below.
Comment 1: The Commission recommends that we require the Navy to
conduct source level measurements during vibratory driving of a
representative number of 16-inch (in) composite piles in addition to
the other pile types and methods proposed to be monitored.
Response: We agree with the Commission's recommendation, and the
Navy's monitoring plan has been revised accordingly.
Comment 2: The Commission recommends that we require the Navy to
conduct sound propagation measurements in addition to source level
measurements during the various activities that would be monitored
acoustically to refine the extent of the Level A and B harassment
zones.
Response: This was originally the intent of the acoustic monitoring
plan, and the Navy's monitoring plan has been revised for clarity.
Comment 3: The Commission recommends that we require the Navy to
reallocate additional monitoring effort to the first two years of
activities and ensure that monitoring occurs during a representative
portion of the various pile sizes, types, and methods including during
impact driving of steel pipe piles.
Response: The Navy has clarified that impact and vibratory pile
driving may occur interchangeably on any given day. Therefore, for
example, although the description of Project 1A includes a maximum of
31 days of vibratory removal and 30 days of impact installation, these
days would not likely be independent, and the much smaller disturbance
zone for impact driving would be contained within the zone associated
with vibratory driving. We have revised the monitoring plan to include
monitoring of the disturbance on a portion of days associated with
Project 2; with this addition, all projects other than 1B and the FY17
phase of Project 3A (each of which involves only two days of pile
driving) incorporate some disturbance zone monitoring effort. We
therefore believe that the monitoring plan achieves the goals expressed
in the Commission's recommendation.
Comment 4: A private citizen, while expressing support for the
Navy's proposed waterfront construction activities, suggests that the
length of the project may result in long-term avoidance and have
permanent adverse effects on the Western North Atlantic South Carolina/
Georgia Coastal Stock of bottlenose dolphins. The commenter recommends
that the opportunity be used to fill gaps in research in order to
provide insight regarding the human impact on marine mammals.
Response: We appreciate the commenter's concern. While the best
available information does not lead us to believe that long-term
avoidance or permanent adverse effects to any potentially affected
stocks of bottlenose dolphin are reasonably anticipated outcomes of the
specified activity, NMFS's implementing regulations (50 CFR 216.104) do
require that applicants for incidental take authorization propose the
suggested means of 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. Please

[[Page 26364]]

see ``Monitoring and Reporting,'' later in this document, for details
of planned monitoring and reporting requirements.
Comment 5: A private citizen states that protection of marine life
is critical to maintaining balanced ecosystems and that mass stranding
of marine life is undesirable.
Response: We agree with the sentiments expressed by the commenter
and issue this final rule in accordance with the requirements of the
MMPA, which address the Congressional finding that marine mammal
species and population stocks should not be permitted to diminish
beyond the point at which they cease to be a significant functioning
element in the ecosystem of which they are a part (16 U.S.C. 1361(2)).
However, no mass stranding of marine life is anticipated to result from
the specified activity, and no injury or mortality of marine mammals is
anticipated or authorized.

Description of Marine Mammals in the Area of the Specified Activity

Only one species under NMFS's jurisdiction is considered to have
the potential to co-occur with Navy activities: The bottlenose dolphin.
However, multiple stocks of bottlenose dolphin have the potential to be
present. The offshore stock of bottlenose dolphins is considered
extralimital to the project area and is not discussed further in this
document.
Table 3 lists all species and stocks with expected potential for
occurrence in the specified geographical region where Navy plans to
conduct the specified activity, and summarizes information related to
the population or stock, including potential biological removal (PBR).
PBR, 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, is considered in concert with known sources of
ongoing anthropogenic mortality (as described in NMFS's SARs).

Table 3--Marine Mammals Potentially Present in the Vicinity of NSB Kings Bay
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status;
Species Stock strategic (Y/N) Stock abundance (CV, Nmin, most PBR \3\ Annual M/SI \4\ Relative occurrence in Kings
\1\ recent abundance survey) \2\ Bay; season of occurrence \5\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin.............. Western North D; Y 4,377 (0.43; 3,097; 2009)........... 31................... 1.2-1.6.............. Likely; year-round.
Atlantic Coastal,
South Carolina/
Georgia.
WNA Coastal, D; Y 1,219 (0.67; 730; 2009)............. 7.................... 0.4.................. Rare; year-round.
Northern Florida.
WNA Coastal, D; Y 9,173 (0.46; 6,326; 2009)........... 63................... 0-12................. Rare; January-March.
Southern Migratory.
Southern Georgia -; Y 194 (0.05; 185; 2009)............... 1.9.................. Unk.................. Likely; year-round.
Estuarine System.
Jacksonville -; Y Unknown............................. Undetermined......... 1.2.................. Rare; year-round.
Estuarine System.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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 (see footnote 3) or which is determined to be declining and likely to be listed under the ESA
within the foreseeable future.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be
more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, 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 size (OSP).
\4\ 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, subsistence hunting, ship
strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a range.
\5\ The Navy considers ``rare'' to mean that there may be a few confirmed sightings or that the distribution of the stock is near enough to the area of interest that the species could occur
there, and that overall the stock may occur but only infrequently or in small numbers. ``Likely'' is considered to mean that confirmed and regular sightings of the species occur year-round.
Extralimital stocks are those that are considered unlikely to co-occur with the activity because the action area is outside the range of normal occurrence, but for which there may be some
sighting or stranding records.

We presented a detailed discussion of the status of these stocks
and their occurrence in the action area in the notice of the proposed
rulemaking (82 FR 684; January 3, 2017), and do not repeat the
information here. Please see that document for more information. In
summary, the southern Georgia estuarine system stock and the South
Carolina/Georgia coastal stock are expected to be the two stocks most
likely to be affected by the specified activity. Individual animals
from the northern Florida and southern migratory (January to March
only) coastal stocks and the Jacksonville estuarine system stock may
also occur rarely.

Potential Effects of the Specified Activity on Marine Mammals and Their
Habitat

We provided discussion of the potential effects of the specified
activity on marine mammals and their habitat in our Federal Register
notice of proposed rulemaking (January 3, 2017; 82 FR 684). Therefore,
we do not reprint the information here but refer the reader to that
document. That discussion included a summary and discussion of the ways
that components of the specified activity may impact marine mammals and
their habitat. The ``Estimated Take'' section later in this preamble
includes a quantitative analysis of the number of incidents of

[[Page 26365]]

take expected to occur incidental to this activity. The ``Negligible
Impact Analysis'' section includes an analysis of how this specific
activity will impact marine mammals, and considers the content of the
discussion of potential effects to marine mammals and their habitat,
the ``Estimated Take'' section, and the ``Mitigation'' section, to draw
conclusions regarding the likely impacts of these activities on the
reproductive success or survivorship of individuals, and from that on
the affected marine mammal populations or stocks.

Estimated Take

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).
Anticipated takes would be by Level B harassment, as pile driving
activity has the potential to result in disruption of behavioral
patterns for individual marine mammals. Level A harassment by auditory
injury is unlikely to occur as a result of this activity for bottlenose
dolphins (i.e., mid-frequency hearing specialists) and, although it is
unlikely that take by Level A harassment would occur even in the
absence of the planned mitigation and monitoring measures, the measures
are expected to further minimize such potential. The Navy has requested
authorization for the incidental taking by Level B harassment of
bottlenose dolphins in the vicinity of NSB Kings Bay that may result
from pile driving during waterfront construction activities described
previously in this document.

Sound Thresholds

We provided discussion of relevant sound thresholds in our Federal
Register notice of proposed rulemaking (January 3, 2017; 82 FR 684) and
do not reprint the information here. Please see Table 4 for those
criteria.

Table 4--Acoustic Exposure Criteria
------------------------------------------------------------------------
Criterion Definition Threshold
------------------------------------------------------------------------
Level A harassment (mid- Injury (onset 230 dB \1\ (peak
frequency cetaceans). PTS--any level pressure) or 185 dB
above that which \2\ (cumulative
is known to sound exposure
cause TTS). level).
Level B harassment............ Behavioral 160 dB root mean
disruption. square (rms)
(impulse sources);
120 dB rms (non-
impulsive,
continuous sources).
------------------------------------------------------------------------
\1\ Referenced to 1 [mu]Pa; unweighted within generalized hearing range.
\2\ Referenced to 1 [mu]Pa\2\s; weighted according to appropriate
auditory weighting function.

Based on consideration of NMFS's 2016 ``Technical Guidance for
Assessing the Effects of Anthropogenic Sound on Marine Mammal
Hearing,'' potential injury zones are fully encompassed by Navy's
planned shutdown zones. Predicted isopleth distances for auditory
injury (i.e., Level A harassment) were calculated for all construction
scenarios (e.g., combinations of pile types, hammer types, and assumed
number of piles driven per day or driving duration per day). This
information was used with NMFS's optional user spreadsheet, a tool
developed to help applicants implement the new Technical Guidance. For
vibratory driving, predicted zones ranged from less than 1 m to 3.6
meters (m). For impact driving, predicted zone ranged from less than 1
m to 38 m. All zones were smaller than the Navy's proposed minimum
shutdown zone of 15 m, except for impact driving of 24-in steel piles
associated with project 4B in FY20 (16.6 m) and impact driving of 30-in
steel piles associated with project 3F in FY 2021 (38 m). Shutdown
zones associated with these projects would be increased to 20 m and 40
m, respectively, in order to encompass the predicted injury zones. In
consideration of the small injury zones and the Navy's mitigation, we
believe that injury will be avoided. We have considered the new
guidance and believe that the likelihood of injury is adequately
addressed in this analysis, and appropriate protective measures are in
place in these regulations.

Zones of Influence

Sound Propagation--Pile driving generates underwater noise that can
potentially result in disturbance to marine mammals in the project
area. Transmission loss (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, 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,

R1 = the distance of the modeled SPL from the driven
pile, and
R2 = the distance from the driven pile of the initial
measurement.

This formula neglects loss due to scattering and absorption, which
is assumed to be zero here. The degree to which underwater sound
propagates away from a sound source is dependent on a variety of
factors, most notably the water bathymetry and presence or absence of
reflective or absorptive conditions including in-water structures and
sediments. Spherical spreading occurs in a perfectly unobstructed
(free-field) environment not limited by depth or water surface,
resulting in a 6 dB reduction in sound level for each doubling of
distance from the source (20*log(range)). Cylindrical spreading occurs
in an environment in which sound propagation is bounded by the water
surface and sea bottom, resulting in a reduction of 3 decibels (dB) in
sound level for each doubling of distance from the source
(10*log(range)). As is common practice in coastal waters, here we
assume practical spreading loss (4.5 dB reduction in sound level for
each doubling of distance) here. Practical spreading is a compromise
that is often used under conditions where water increases with depth as
the receiver moves away from the shoreline, resulting in an expected
propagation environment that would lie between spherical and
cylindrical spreading loss conditions.
Sound Source Levels and Behavioral Zones--The intensity of pile
driving sounds is greatly influenced by factors such as the type of
piles, hammers, and the physical environment in which the activity
takes place. However, there are no measurements available from the
specific environment of NSB Kings Bay. Numerous studies have examined
sound

[[Page 26366]]

pressure levels (SPLs) recorded from underwater pile driving projects
in California and Washington, and the Navy has conducted a few studies
on the east coast. In addition, the majority of studies are focused on
steel pipe piles, with less data available for other pile types. In
order to determine reasonable SPLs and their associated effects on
marine mammals that are likely to result from pile driving at NSB Kings
Bay, studies with similar properties to the specified activity were
evaluated, and are displayed in Table 5. Where available, data from the
east coast were prioritized due to the differences in bathymetry and
sediment at west coast sites. For pile types for which data from the
east coast were not available, averages of west coast data were used to
approximate source levels. For fiberglass reinforced plastic composite
piles, no measured data are available. The source level estimates for
this type of pile were based on data from timber piles driven on the
east coast of the U.S, assuming that this is the most similar pile
material. In all cases, where data from the same pile size/type were
not available, a more conservative proxy was used. Where appropriate,
weighted project averages were considered. Values measured at distances
greater than 10 m were normalized to 10 m before calculating averages.
For full details of data considered, please see Appendix C of the
Navy's application.

Table 5--Summary of Proxy Measured Underwater Sound Pressure Levels
[SPLs]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Proxy source levels (dB at 10 m)
Method Pile size and material Proxy -----------------------------------------------
rms pk SEL
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory.............................. 16'' timber; 16-18'' composite. 12-16'' timber \1\............ 161 n/a n/a
Vibratory.............................. 18-24'' concrete............... 24'' steel pipe 2-5........... 166 n/a n/a
Vibratory.............................. 14'' steel H................... 14'' steel H \6\.............. 163 n/a n/a
Vibratory.............................. 24'' steel pipe................ 24'' steel pipe 2-5........... 166 n/a n/a
Vibratory.............................. 30'' steel pipe................ 30'' steel pipe 7-9........... 166 n/a n/a
Impact................................. 18'' concrete.................. 18'' concrete \4\............. 170 184 159
Impact................................. 24'' concrete.................. 24'' concrete 1 6............. 174 184 165
Impact................................. 14'' steel H................... 14'' steel H \4\.............. 178 196 168
Impact................................. 24'' steel pipe................ 24'' steel pipe 4 10-11....... 190 206 179
Impact................................. 30'' steel pipe................ 30'' steel pipe 4 8 10 12..... 193 209 188
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: \1\ Illingworth & Rodkin, 2015; \2\ Illingworth & Rodkin, 2010; \3\ Illingworth & Rodkin, 2012; \4\ Caltrans, 2012; \5\ Illingworth & Rodkin,
2013b; \6\ Illingworth & Rodkin, 2013a; \7\ Laughlin, 2010a; \8\ Laughlin, 2010b; \9\ Laughlin, 2011; \10\ Laughlin, 2005a; \11\ Laughlin, 2005b; \12\
MacGillivray and Racca, 2005.

We consider the values presented in Table 5 to be representative of
SPLs that may be produced by the specified activity. All calculated
distances to and the total area encompassed by the marine mammal sound
thresholds are provided in Table 6. Calculated radial distances to the
160 dB threshold assume a field free of obstruction. However, the
waters surrounding NSB Kings Bay do not represent open water conditions
and the calculated zone-specific areas take landforms into
consideration. Actual zones are depicted in Figures 6-1 through 6-26 of
the Navy's application. Although calculated radial distances to
threshold do not change, the actual zone sizes may vary depending on
the specific project location.

Table 6--Distances to Relevant Sound Thresholds and Areas of Ensonification
--------------------------------------------------------------------------------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------------------------------------------------------------------
Distance to threshold (m) and associated area of
ensonification (km\2\)
---------------------------------------------------------------
Project Pile type.............................. 160 dB
120 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
1A............................................. 16'' timber............................ n/a n/a 5,412 3.69
1A............................................. 18'' concrete.......................... 46.4 0.01 n/a n/a
1A............................................. 24'' concrete.......................... 85.8 0.02 n/a n/a
1B............................................. 16'' timber/composite.................. n/a n/a 5,412 3.12
2.............................................. 14'' steel H........................... 159 0.06 n/a n/a
3A (FY17)...................................... 24'' steel pipe........................ 1,000 0.88 11,659 3.63
3A (FY22)...................................... 24'' concrete.......................... 85.8 0.02 11,659 3.63
3A (FY22)...................................... 24'' steel pipe........................ 1,000 0.88 11,659 3.63
3B............................................. 14'' steel H........................... 159 0.04 7,356 2.40
3C............................................. 24-30'' steel pipe..................... 1,000 0.75 11,659 3.32
3D............................................. 24-30'' steel pipe..................... 1,000 0.90 11,659 3.17
3E............................................. 24-30'' steel pipe..................... 1,000 0.88 11,659 3.72
3F............................................. 30'' steel pipe........................ 1,585 1.35 11,659 3.49
3G............................................. 14'' steel H........................... 159 0.07 7,356 4.00
4A............................................. 18'' concrete.......................... 46.4 0.02 11,659 7.51
4A............................................. 24'' concrete.......................... 85.8 0.01 11,659 7.51
4B............................................. 24'' steel pipe........................ 1,000 1.63 11,659 6.87
5.............................................. 16'' timber/18'' composite............. n/a n/a 5,412 10.75
6A/6B.......................................... 24'' concrete.......................... n/a n/a 11,659 9.34
--------------------------------------------------------------------------------------------------------------------------------------------------------
Areas presented take into account attenuation and/or shadowing by land. Please see Figures 6-1 to 6-26 in the Navy's application.

[[Page 26367]]

Marine Mammal Density

The Navy conducted marine mammal surveys at NSB Kings Bay during
2006-2007 (McKee and Latusek, 2009). Transect lines were run in the
waters around NSB Kings Bay during summer and fall 2006 and during
winter and spring 2007. The survey area included estuarine waters
extending from the mouth of the St. Marys River north through the
Cumberland Sound to approximately eight nautical miles (nmi) inland
along the Satilla River. The Crooked River and the Brickhill River,
which flow into Cumberland Sound, were also part of the study area,
though line transects were not possible in these locations, and census
counts were substituted here. The geographic limits ranged from
30[deg]40' N. to 31[deg]00' N. and inland limits to 81[deg]40' W.
Nearshore Atlantic waters were not included in the surveys.
Observations were made with 7x50 power binoculars and with the
naked eye, scanning from 0-90[deg] relative to the vessel's line of
travel. Sightings, radial distance and angle to animal, and number of
individuals were recorded. For census count areas, the vessel was
driven along the center line of the river and distance and angle to
sightings were noted. Commercially available software (Distance 5.0)
was used to analyze the collected data, including area surveyed, and
calculate a seasonal density. Seasonal densities were combined to
calculate an average annual density of 1.12 dolphins per square
kilometer (km\2\).

Incidental Take Calculation

The species density described above (1.12 animals/km\2\) was
multiplied by the activity-specific ZOIs shown in Table 6 to determine
the estimated daily exposures. The Navy then rounded these daily
exposure estimates to the nearest whole number before multiplying by
activity-specific pile driving days, shown in Table 1, to yield the
exposure estimates shown in Table 7. The Navy has requested
authorization for a total of 881 incidents of Level B harassment of
bottlenose dolphins over the five-year period of validity of these
regulations. Table 7 displays the total take estimate broken out by
project and year. However, note that year assignments reflect only the
projected project start years. Projects may continue into succeeding
years, but neither exact start dates nor whether a project would in
fact continue into the succeeding year are known at this time.

Table 7--Incidental Take Totals
----------------------------------------------------------------------------------------------------------------
Year Project Impact Vibratory
----------------------------------------------------------------------------------------------------------------
FY17............................................................ 1A 0 124
1B n/a 6
2 0 n/a
3A 1 4
3D 1 4
5 n/a 72
-------------------------------
FY17 Totals................................................. n/a 2 210
-------------------------------
212
-------------------------------
FY18............................................................ 3C 1 4
3E 1 4
-------------------------------
FY18 Totals................................................. n/a 2 8
-------------------------------
10
-----------------------------------------------
FY19............................................................ n/a
-----------------------------------------------
FY20............................................................ 4A 0 64
4B 8 32
-------------------------------
FY20 Totals................................................. n/a 8 96
-------------------------------
104
-------------------------------
FY21............................................................ 3B 0 21
3F 4 8
-------------------------------
FY21 Totals................................................. n/a 4 29
-------------------------------
33
-------------------------------
FY22............................................................ 3A 4 16
3G 0 32
6A n/a 410
6B n/a 60
-------------------------------
FY22 Totals................................................. n/a 4 518
-------------------------------
522
-------------------------------
FY17-22 Totals.......................................... n/a 20 861
-------------------------------
881
----------------------------------------------------------------------------------------------------------------

[[Page 26368]]

Analyses and Determinations

Negligible Impact Analysis

NMFS has defined ``negligible impact'' in 50 CFR 216.103 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. 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 by mortality, serious injury, and Level A or Level B
harassment, we consider other factors, such as the likely nature of any
behavioral responses (e.g., intensity, duration), the context of any
such responses (e.g., critical reproductive time or location,
migration), as well as the number and nature of estimated Level A
harassment takes (if any), and effects on habitat. We also assess the
number, intensity, and context of estimated takes by evaluating this
information relative to population status (i.e., the environmental
baseline).
Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into these
analyses via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, sources of human-caused mortality).
Pile driving activities associated with the wharf construction
projects, as described previously, have the potential to disturb or
displace marine mammals. Specifically, the specified activities may
result in take, in the form of Level B harassment (behavioral
disturbance) only, from underwater sounds generated from pile driving.
Potential takes could occur if individual bottlenose dolphins are
present in the ensonified zone when pile driving is happening.
No serious injury or mortality would be expected even in the
absence of the planned mitigation measures. No Level A harassment is
anticipated given the nature of the activities and measures designed to
minimize the possibility of injury. The potential for injury is small,
and is expected to be essentially eliminated through implementation of
the planned mitigation measures--soft start (for impact driving) and
shutdown zones. Impact driving, as compared with vibratory driving, has
source characteristics (short, sharp pulses with higher peak levels and
much sharper rise time to reach those peaks) that are potentially
injurious or more likely to produce severe behavioral reactions. Given
sufficient notice through use of soft start, marine mammals are
expected to move away from a sound source that is annoying prior to its
becoming potentially injurious or resulting in more severe behavioral
reactions. Environmental conditions in waters surrounding NSB Kings Bay
are expected to generally be good, with calm sea states, albeit with
high turbidity. Nevertheless, we expect conditions would allow a high
marine mammal detection capability, enabling a high rate of success in
implementation of shutdowns to avoid injury.
Effects on individuals that are taken by Level B harassment, 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; HDR, Inc., 2012; Lerma, 2014). Most likely, individuals will
simply move away from the sound source and be temporarily displaced
from the areas of pile driving, although 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 in San Francisco
Bay and in the Puget Sound region, which have taken place with no known
long-term adverse consequences from behavioral harassment.
The Navy has conducted similar multi-year activities potentially
affecting bottlenose dolphins in San Diego Bay and in the same general
region at Mayport, Florida, that have similarly reported no apparently
consequential behavioral reactions or long-term effects on bottlenose
dolphin populations (Lerma, 2014; Navy, 2015). Repeated exposures of
individuals to relatively low levels of sound outside of preferred
habitat areas are unlikely to significantly disrupt critical behaviors.
Thus, even repeated Level B harassment of some small subset of the
overall stock is unlikely to result in any significant realized
decrease in viability for the affected individuals, and thus would not
result in any adverse impact to the stock as a whole. Level B
harassment will be reduced to the level of least practicable adverse
impact 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. While vibratory driving associated with some project
components may produce sound at distances of multiple kilometers from
the pile driving site, thus intruding on higher-quality habitat, the
project sites themselves and the majority of sound fields produced by
the specified activities are within a heavily impacted, industrialized
area. Therefore, we expect that animals annoyed by project sound would
simply avoid the area and use more-preferred habitats.
In summary, this negligible impact analysis is founded on the
following factors: (1) The possibility of injury, serious injury, or
mortality may reasonably be considered discountable; (2) the
anticipated incidents of Level B harassment consist of, at worst,
temporary modifications in behavior; (3) the absence of any significant
habitat within the project area, including known areas or features of
special significance for foraging or reproduction; and (4) the presumed
efficacy of the planned mitigation measures in reducing the effects of
the specified activity to the level of least practicable adverse
impact. In addition, while some of the potentially affected stocks are
considered depleted under the MMPA, it is unlikely that minor noise
effects in a small, localized area would have any effect on the stocks'
ability to recover. In combination, we believe that these factors, as
well as the available body of evidence from other similar activities,
demonstrate that the potential effects of the specified activities will
have only minor, short-term effects on individuals. The specified
activities are not expected to impact rates of recruitment or survival
and will therefore not result in population-level impacts.
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 planned monitoring and
mitigation measures, we find that the total marine mammal take from the
Navy's waterfront construction activities will have a negligible impact
on the affected marine mammal species or stocks.

Small Numbers Analysis

Please see Table 7 for information relating to this small numbers
analysis; as described previously, although we provide exposure
estimates broken out by year and project component, we do not have
specific information about when each project would be concluded

[[Page 26369]]

or therefore how many takes may actually accrue in any given year
during the five-year period of validity of these regulations. An
average of 176 incidents of behavioral harassment of bottlenose
dolphins is predicted to occur annually over the five-year effective
period of these regulations; we have no information allowing us to
parse the predicted incidents amongst the stocks of bottlenose dolphin
that may occur in the project area. However, because they would be
expected to occur only rarely and/or seasonally, we assume that only
small numbers of individuals of the northern Florida coastal, southern
migratory coastal, and Jacksonville estuarine system stocks would be
potentially present and available to be taken as a result of the
specified activities.
The South Carolina/Georgia coastal and southern Georgia estuarine
system (SGES) stocks are expected to potentially be present more
regularly. For the South Carolina/Georgia coastal stock, the predicted
annual average number of incidents of take to be authorized is
considered small--approximately four percent--even if each estimated
taking was of a new individual. This is an extremely unlikely scenario
as, for bottlenose dolphins in estuarine and nearshore waters, there is
likely to be some overlap in individuals present day-to-day.
The total number of authorized takes for bottlenose dolphins, if
assumed to accrue solely to unique individuals of the SGES stock, is
higher relative to the total stock abundance, which is currently
estimated at 194 individuals. As described previously, this estimate is
the result of surveys covering only a portion of the stock range and is
assumed to underestimate the stock abundance. Regardless, these numbers
represent the estimated incidents of take, not the number of
individuals taken. That is, it is highly likely that a relatively small
subset of SGES bottlenose dolphins would be harassed by project
activities. SGES bottlenose dolphins range from Cumberland Sound at the
Georgia-Florida border north to the Altamaha Sound, Georgia, an area
spanning approximately 70 linear km of coastline and including habitat
consisting of complex inshore and estuarine waterways. SGES dolphins
show strong site fidelity (Balmer et al., 2013), and it is likely that
the majority of SGES dolphins would not occur within waters ensonified
by project activities. In summary, SGES dolphins are known to exhibit
strong site fidelity (i.e., individuals do not generally range
throughout the recognized overall SGES stock range), and the specified
activity will be stationary within a relatively enclosed industrial
area not recognized as an area of any special significance that would
serve to attract or aggregate dolphins. We therefore believe that the
estimated numbers of take, were they to occur, likely represent
repeated exposures of a much smaller number of bottlenose dolphins, and
that these estimated incidents of take represent small numbers of
bottlenose dolphins.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, we find that
small numbers of marine mammals will be taken relative to the
populations of the affected species or stocks.

Mitigation

In order to issue an incidental take authorization under section
101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods
of taking pursuant to such activity, ``and other means of effecting the
least practicable adverse impact on such species or stock and its
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance, and on the availability of such species
or stock for subsistence uses.'' NMFS's implementing 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 such
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)).
The mitigation strategies described below largely follow those
required and successfully implemented under previous incidental take
authorizations issued in association with similar construction
activities. Measurements from similar pile driving events were coupled
with practical spreading loss and other relevant information to
estimate zones of influence (ZOI; see ``Estimated Take'' section);
these ZOI values were used to develop mitigation measures for pile
driving activities at NSB Kings Bay. Background discussion related to
underwater sound concepts and terminology was provided in the section
on ``Description of Sound Sources,'' in our Federal Register notice of
proposed rulemaking (January 3, 2017; 82 FR 684, at 694-695). Practical
spreading loss is discussed in further detail previously in this
preamble in the section on ``Zones of Influence.'' The ZOIs effectively
represent the mitigation zone that would be established around each
pile to prevent Level A harassment to dolphins, while providing
estimates of the areas within which Level B harassment might occur. In
addition to the specific measures described later in this section, the
Navy will conduct briefings for construction supervisors and crews,
marine mammal monitoring team, and Navy staff prior to the start of all
pile driving activity, and when new personnel join the work, in order
to explain responsibilities, communication procedures, marine mammal
monitoring protocol, and operational procedures. All relevant personnel
will watch applicable sections of the Navy's Marine Species Awareness
Training video. Relevant personnel will also follow NMFS's ``Southeast
Region Marine Mammal and Sea Turtle Viewing Guidelines,'' which are
described in Attachment 1 of Navy's Monitoring Plan.

Monitoring and Shutdown for Pile Driving

The following measures will apply to the Navy's mitigation through
shutdown and disturbance zones:
Shutdown Zone--The purpose of a shutdown zone is to define an area
within which shutdown of activity would occur upon sighting of a marine
mammal (or in anticipation of an animal entering the defined area),
thus preventing some undesirable outcome, such as auditory injury or
behavioral disturbance of sensitive species (serious injury or death
are unlikely outcomes even in the absence of mitigation measures). For
all pile driving activities, the Navy will establish a minimum shutdown
zone with radial distance of 15 m. This minimum zone is intended to
prevent the already unlikely possibility of physical interaction with
construction equipment and to establish a precautionary minimum zone
with regard to acoustic effects.
As described previously in the ``Estimated Take'' section, we used
NMFS's user spreadsheet, an optional companion spreadsheet associated
with the alternative implementation methodology provided in Appendix D
of NMFS's acoustic guidance (NMFS, 2016), to calculate project, pile
type, and pile driving methodology-specific zones within which auditory
injury (i.e., Level A harassment) could occur. The user spreadsheet is
publicly available online at www.nmfs.noaa.gov/pr/acoustics/guidelines.htm. In using the spreadsheet, we assumed practical
spreading loss and used supplementary information provided by the Navy
regarding assumed number of piles driven per day and number of pile
strikes necessary to install a pile (for

[[Page 26370]]

impact pile driving) and daily duration of pile driving (for vibratory
pile driving). Assumed source levels are provided in Table 5.
In most cases, this minimum shutdown zone of 15 m is expected to
contain the area in which auditory injury could occur. All predicted
auditory injury zones are less than the minimum 15 m shutdown zone
(radial distance range: 0.5-13.1 m), with the exception of impact
driving of 30-in steel piles associated with Project 3F (radial
distance of 38 m) and impact driving of 24-in steel piles associated
with Project 4B (radial distance of 16.6 m). In all cases, predicted
injury zones are calculated on the basis of cumulative sound exposure,
as peak pressure source levels are below the injury threshold for mid-
frequency cetaceans. For these two scenarios we require shutdown zones
of 40 m and 20 m radial distance, respectively.
Injury zone predictions generated using the optional user
spreadsheet are precautionary due to a number of simplifying
assumptions. For example, the spreadsheet tool assumes that marine
mammals remain stationary during the activity and does not account for
potential recovery between intermittent sounds. In addition, the tool
incorporates the acoustic guidance's weighting functions through use of
a single-frequency weighting factor adjustment intended to represent
the signal's 95 percent frequency contour percentile (i.e., upper
frequency below which 95 percent of total cumulative energy is
contained; Charif et al., 2010). This will typically result in higher
predicted exposures for broadband sounds, since only one frequency is
being considered, compared to exposures associated with the ability to
fully incorporate the guidance's weighting functions.
Disturbance Zone--Disturbance zones are the areas in which SPLs
equal or exceed 160 and 120 dB root mean square (rms) (for impulsive
and non-impulsive, continuous sound, respectively). Disturbance zones
provide utility for monitoring conducted for mitigation purposes (i.e.,
shutdown zone monitoring) by establishing monitoring protocols for
areas adjacent to the shutdown zones. Monitoring of disturbance zones
enables observers to be aware of and communicate the presence of marine
mammals in the project area but outside the shutdown zone, and thus
prepare for potential shutdowns of activity. However, the primary
purpose of disturbance zone monitoring is for documenting incidents of
Level B harassment; disturbance zone monitoring is discussed in greater
detail later (see ``Monitoring and Reporting''). Nominal radial
distances for disturbance zones are shown in Table 6.
In order to document observed incidents of harassment, monitors
record all marine mammal observations, regardless of location. The
observer's location and the location of the pile being driven are
known, and the location of the animal may be estimated as a distance
from the observer and then compared to the location from the pile. It
may then be estimated whether the animal was exposed to sound levels
constituting incidental harassment on the basis of predicted distances
to relevant thresholds in post-processing of observational data, and a
precise accounting of observed incidents of harassment created. This
information may then be used to extrapolate observed takes to reach an
approximate understanding of actual total takes, in cases where the
entire zone was not monitored and/or all days of activity were not
monitored.
Monitoring Protocols--Monitoring would be conducted before, during,
and after pile driving activities. In addition, observers will record
all incidents of marine mammal occurrence, regardless of distance from
activity, and monitors will document any behavioral reactions in
concert with distance from piles being driven. Observations made
outside the shutdown zone will not result in shutdown. That pile
segment will be completed without cessation, unless the animal
approaches or enters the shutdown zone, at which point all pile driving
activities would be halted. Monitoring will take place from 15 minutes
prior to initiation through 30 minutes post-completion of pile driving
activities. Pile driving activities include the time to install or
remove a single pile or series of piles, as long as the time elapsed
between uses of the pile driving equipment is no more than thirty
minutes. Observation of shutdown zones will always occur, but
observation of the larger disturbance zones will occur on a subset of
days associated with each specific project (see project-specific
details provided in ``Monitoring and Reporting,'' later in this
document). Please see the Monitoring Plan, developed by the Navy in
agreement with NMFS, for full details of the monitoring protocols.
The following additional measures apply to visual monitoring:
(1) Monitoring will be conducted by designated observers, who will
be placed at the best vantage point(s) practicable (as defined in the
Monitoring Plan) to monitor for marine mammals and implement shutdown/
delay procedures when applicable by calling for the shutdown to the
hammer operator. Observers would have no other construction-related
tasks while conducting monitoring. Observers should have the following
minimum qualifications:
Visual acuity in both eyes (correction is permissible)
sufficient for discernment of moving targets at the water's surface
with ability to estimate target size and distance; use of binoculars
may be necessary to correctly identify the target;
Ability to conduct field observations and collect data
according to assigned protocols;
Experience or training in the field identification of
bottlenose dolphins, including the identification of behaviors;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
Writing skills sufficient to document observations
including, but not limited to: The number and species of marine mammals
observed; dates and times when in-water construction activities were
conducted; dates and times when in-water construction activities were
suspended to avoid potential incidental injury of marine mammals from
construction noise within a defined shutdown zone; and marine mammal
behavior; and
Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
(2) Prior to the start of pile driving activity, the shutdown zone
will be monitored for 15 minutes to ensure that it is clear of marine
mammals. Pile driving will only commence once observers have declared
the shutdown zone clear of marine mammals. Animals will be allowed to
remain in the shutdown zone (i.e., must leave of their own volition),
and their behavior will be monitored and documented. The shutdown zone
may only be declared clear, and pile driving started, when the entire
shutdown zone is visible (i.e., when not obscured by dark, rain, fog,
etc.). In addition, if such conditions should arise during impact pile
driving that is already underway, the activity would be halted.
(3) If a marine mammal approaches or enters the shutdown zone
during the course of pile driving operations, activity will be halted
and delayed until either the animal has voluntarily left and been
visually confirmed beyond the shutdown zone or fifteen minutes have
passed without re-detection of the animal. Monitoring will be conducted

[[Page 26371]]

throughout the time required to drive a pile and for thirty minutes
following the conclusion of pile driving.

Soft Start

The use of a soft start procedure is believed to provide additional
protection to marine mammals by warning marine mammals or providing
them with a chance to leave the area prior to the hammer operating at
full capacity, and typically involves a requirement to initiate sound
from the hammer at reduced energy followed by a waiting period. This
procedure is repeated two additional times. It is difficult to specify
the reduction in energy for any given hammer because of variation
across drivers and, for impact hammers, the actual number of strikes at
reduced energy will vary because operating the hammer at less than full
power results in ``bouncing'' of the hammer as it strikes the pile,
resulting in multiple ``strikes.'' The Navy will utilize soft start
techniques for impact pile driving. We require an initial set of three
strikes from the impact hammer at reduced energy, followed by a 30-
second waiting period, then 2 subsequent 3-strike sets. Soft start will
be required at the beginning of each day's impact pile driving work and
at any time following a cessation of impact pile driving of thirty
minutes or longer; the requirement to implement soft start for impact
driving is independent of whether vibratory driving has occurred within
the prior 30 minutes.
We have carefully evaluated the Navy's proposed mitigation measures
and considered a range of other measures in the context of ensuring
that we prescribed the means of effecting the least practicable adverse
impact on the affected marine mammal species and stocks and their
habitat. Our evaluation of potential measures included consideration of
the following factors in relation to one another: (1) The manner in
which, and the degree to which, the successful implementation of the
measure is expected to minimize adverse impacts to marine mammals, (2)
the proven or likely efficacy of the specific measure to minimize
adverse impacts as planned; and (3) the practicability of the measure
for applicant implementation.
Any mitigation measure(s) we prescribe should be able to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals 2, 3, and 4 may contribute to this goal).
(2) A reduction in the number (total number or number at
biologically important time or location) of individual marine mammals
exposed to stimuli expected to result in incidental take (this goal may
contribute to 1, above, or to reducing takes by behavioral harassment
only).
(3) A reduction in the number (total number or number at a
biologically important time or location) of times any individual marine
mammal would be exposed to stimuli expected to result in incidental
take (this goal may contribute to 1, above, or to reducing takes by
behavioral harassment only).
(4) A reduction in the intensity of exposure to stimuli expected to
result in incidental take (this goal may contribute to 1, above, or to
reducing the severity of behavioral harassment only).
(5) Avoidance or minimization of adverse effects to marine mammal
habitat, paying particular attention to the prey base, blockage or
limitation of passage to or from biologically important areas,
permanent destruction of habitat, or temporary disturbance of habitat
during a biologically important time.
(6) For monitoring directly related to mitigation, an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation.

Based on our evaluation of these measures, we have determined that the
planned mitigation measures provide the means of effecting the least
practicable adverse impact on marine mammal 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 incidental take authorization 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 incidental take 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 in the proposed action area.
Any monitoring requirement we prescribe should improve our
understanding of one or more of the following:
Occurrence of marine mammal species in action area (e.g.,
presence, abundance, distribution, density).
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 action; or (4) biological or
behavioral context of exposure (e.g., age, calving, or feeding areas).
Individual responses to acute stressors, or impacts of
chronic exposures (behavioral or physiological).
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of an individual; or (2) population,
species, or stock.
Effects on marine mammal habitat and resultant impacts to
marine mammals.
Mitigation and monitoring effectiveness.
The Navy provided a separate Marine Mammal Monitoring Plan, which
is available online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Visual Marine Mammal Observations

The Navy will collect sighting data and behavioral responses to
construction for marine mammal species observed in the region of
activity during the period of activity. All observers will be trained
in marine mammal identification and behaviors and are required to have
no other construction-related tasks while conducting monitoring. The
Navy would monitor all shutdown zones at all times, and would monitor
disturbance zones during a varying subset of total project days.
Disturbance zone monitoring effort during the first two years of
project activities is expected to provide verification during the early
stages of the project regarding assumed numbers of bottlenose dolphins
present in the area. If compliance monitoring results suggest that the
actual number of incidental take events may differ significantly from
the number originally authorized, the Navy would consult with NMFS. The
Navy will conduct monitoring before, during, and after pile driving,
with observers located at the best practicable vantage points. Based on
our requirements, the Navy will implement the following procedures for
pile driving:
Marine mammal observers will be located at the best
vantage point(s) in

[[Page 26372]]

order to properly see the entire shutdown zone and as much of the
disturbance zone as possible.
During all observation periods, observers will use
binoculars and the naked eye to search continuously for marine mammals.
If the shutdown zones are obscured by fog or poor lighting
conditions, pile driving at that location will not be initiated until
that zone is visible. Should such conditions arise while impact driving
is underway, the activity would be halted.
The shutdown zone around the pile will be monitored for
the presence of marine mammals before, during, and after all pile
driving activity, while disturbance zone monitoring will be implemented
according to the schedule proposed here.
Notional marine mammal observation locations are depicted in
Figures 3-14 of the Navy's monitoring plan. Total days planned for each
project are provided above in Table 1. Project-specific disturbance
zone monitoring is described in the following list.
Project 1A--A minimum of three observers will be deployed
to monitor the disturbance zone on a minimum of ten days of vibratory
pile driving.
Project 1B--Only two total days of work are planned as
part of Project 1B, and no disturbance zone monitoring will occur.
Project 2--Only impact pile driving is proposed in
association with Project 2; therefore, the disturbance zone would be
visible during shutdown zone monitoring. However, a minimum of two
observers will be deployed to monitor the zones on a minimum of three
of the seven anticipated days of pile driving.
Project 3A--This project is expected to occur in two
phases, beginning in FY2017 and FY2022. During phase one, only two
total days of work are planned and no disturbance zone monitoring will
occur. During phase two, a minimum of three observers will be deployed
to monitor the disturbance zone on a minimum of three days of vibratory
pile driving.
Project 3B--A minimum of three observers will be deployed
to monitor the disturbance zone on a minimum of five days of vibratory
pile driving.
Projects 3C, 3D, and 3E--A minimum of two observers will
be deployed to monitor the disturbance zone during all impact driving
associated with these projects.
Project 3F--A minimum of three observers will be deployed
to monitor the disturbance zone on a minimum of two days of vibratory
pile driving.
Project 3G--A minimum of three observers will be deployed
to monitor the disturbance zone on a minimum of four days of vibratory
pile driving.
Project 4A--A minimum of four observers will be deployed
to monitor the disturbance zone on a minimum of eight days of vibratory
pile driving.
Project 4B--A minimum of four observers will be deployed
to monitor the disturbance zone on a minimum of three days of vibratory
pile driving.
Project 5--A minimum of four observers will be deployed to
monitor the disturbance zone on a minimum of three days of vibratory
pile driving.
Projects 6A and 6B--A minimum of five observers will be
deployed to monitor the disturbance zone on a minimum of twelve days of
vibratory pile driving.
Individuals implementing the monitoring protocol will assess its
effectiveness using an adaptive approach. Monitoring biologists will
use their best professional judgment throughout implementation and seek
improvements to these methods when deemed appropriate. Any
modifications to the protocol will be coordinated between NMFS and the
Navy.

Data Collection

We require that observers use standardized data forms. Among other
pieces of information, the Navy will record detailed information about
any implementation of shutdowns, including the distance of animals to
the pile and description of specific actions that ensued and resulting
behavior of the animal, if any. We require that, at a minimum, the
following information be collected on the sighting forms:
Date and time that monitored activity begins or ends;
Construction activities occurring during each observation
period;
Weather parameters (e.g., wind speed, percent cloud cover,
visibility);
Water conditions (e.g., sea state, tide state);
Species, numbers, and, if possible, sex and age class of
marine mammals;
Description of any observable marine mammal behavior
patterns, including bearing and direction of travel and distance from
pile driving activity;
Distance from pile driving activities to marine mammals
and distance from the marine mammals to the observation point;
Description of implementation of mitigation measures
(e.g., shutdown or delay).
Locations of all marine mammal observations; and
Other human activity in the area.

Acoustic Monitoring

The Navy will implement a sound source level verification study
during activities associated with specific project components of
interest. Because data is relatively lacking for these pile types, data
collection would be targeted towards impact and vibratory driving of
concrete, timber, and composite piles. A sample scope of work for
acoustic monitoring is provided as Attachment 3 of the Navy's
monitoring plan. The exact specifications of the acoustic monitoring
work would be finalized in consultation with Navy personnel, subject to
constraints related to logistics and security requirements. Reporting
of measured sound level signals will include the average, minimum, and
maximum rms value and frequency spectra for each pile monitored. Peak
and single-strike SEL values would also be reported for impact pile
driving. Acoustic monitoring would be conducted in association with
Project 1A (impact driving of 18-24'' concrete piles and vibratory
removal of 16'' timber piles); Project 2 (impact driving of 14'' steel
H piles); Project 4A (impact driving of 18-24'' concrete piles and
vibratory removal of 24'' concrete piles); and Project 5 (vibratory
removal of 18'' timber piles and vibratory installation of 18''
composite piles). Propagation loss measurements will also be part of
the plan.

Marine Mammal Surveys

Subject to funding availability, additional work would be performed
to describe the spatial and temporal distributions of bottlenose
dolphins and their densities in areas that may be affected by the
specified activities. Surveys would be performed as soon as
practicable.

Reporting

A draft report will be submitted to NMFS within 90 days of the
completion of the monitoring period for each project. The report will
include marine mammal observations pre-activity, during-activity, and
post-activity during pile driving days, and will also provide
descriptions of any behavioral responses to construction activities by
marine mammals, a complete description of all mitigation shutdowns and
the results of those actions, and an extrapolated total take estimate
based on the number of marine mammals observed during the course of
construction. A final report must be submitted within thirty days
following resolution of comments on the draft report. The Navy will
also submit a comprehensive summary report

[[Page 26373]]

following conclusion of the specified activities.

Adaptive Management

The regulations governing the take of marine mammals incidental to
Navy waterfront construction activities contain an adaptive management
component.
The reporting requirements associated with this final rule are
designed to provide NMFS with monitoring data from the previous year 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 on marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be 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
subsequent LOAs.

Changes to the Proposed Regulations

In response to public comment, and as a result of clarifying
discussions with the Navy, we made certain changes to the proposed
regulations as described here. These changes are considered minor and
do not affect any of our preliminary determinations.

Monitoring

We have added a requirement to conduct disturbance zone monitoring
for Project 2, and have clarified that disturbance zone monitoring for
Projects 3C-E would occur within the estimated 1,000-m disturbance zone
associated with impact pile driving. We have also clarified that
required acoustic monitoring will include measurements of propagation
loss in addition to measurements of sound source levels. Finally, in
order to accomplish acoustic monitoring of composite piles we have
substituted Project 5 for Projects 6A-B in the acoustic monitoring
plan.

Impact on Availability of Affected Species for Taking for Subsistence
Uses

There are no relevant subsistence uses of marine mammals implicated
by these actions. Therefore, we have determined that the total taking
of affected species or stocks would not have an unmitigable adverse
impact on the availability of such species or stocks for taking for
subsistence purposes.

Endangered Species Act (ESA)

No marine mammal species listed under the ESA are expected to be
affected by these activities. Therefore, we have determined that
section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

In our Federal Register notice of proposed rulemaking (January 3,
2017; 82 FR 684), we stated our intent to independently evaluate the
Navy's draft EA and determine whether or not to adopt it. Since
publication of the proposed rule, NOAA has completed revisions to
NOAA's procedures for implementing NEPA and related authorities, as
contained in the Companion Manual to NOAA Administrative Order (NAO)
216-6A (Companion Manual). The Companion Manual includes NOAA's revised
categorical exclusions (CE) and related extraordinary circumstances.
In accordance with the Companion Manual and NAO 216-6A, we have
determined that issuance of this final rule qualifies to be
categorically excluded from further NEPA review. Issuance of this final
rule is consistent with categories of activities identified in CE B4 of
the Companion Manual and we have not identified any extraordinary
circumstances listed in Chapter 4 of the Companion Manual that would
preclude application of this CE. NMFS has prepared a CE memorandum for
the record.

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. Navy is the sole entity that would be subject to the
requirements of these regulations, and the U.S. Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received regarding this
certification. As a result, a regulatory flexibility analysis is not
required and none has been prepared.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number. However, this rule does
not contain a collection-of-information requirement subject to the
provisions of the PRA because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.

Dated: June 2, 2017.
Samuel D. Rauch, III,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.

For reasons set forth in the preamble, NMFS amends 50 CFR part 217
as follows:

PART 217--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS

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

Authority: 16 U.S.C. 1361 et seq.

Subpart Y--[Reserved]

0
2. Add reserved subpart Y.

0
3. Add subpart Z to read as follows:

Subpart Z--Taking Marine Mammals Incidental to Navy Waterfront
Construction Activities at Naval Submarine Base Kings Bay

Sec.
217.250 Specified activity and specified geographical region.
217.251 Effective dates.
217.252 Permissible methods of taking.
217.253 Prohibitions.
217.254 Mitigation requirements.
217.255 Requirements for monitoring and reporting.
217.256 Letters of Authorization.
217.257 Renewals and modifications of Letters of Authorization.
217.258 [Reserved]
217.259 [Reserved]

[[Page 26374]]

Sec. 217.250 Specified activity and specified 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 occurs in the area
outlined in paragraph (b) of this section and that occurs incidental to
waterfront construction activities.
(b) The taking of marine mammals by Navy may be authorized in a
Letter of Authorization (LOA) only if it occurs within waters adjacent
to Naval Submarine Base Kings Bay and Crab Island.

Sec. 217.251 Effective dates.

Regulations in this subpart are effective from July 12, 2017,
through July 11, 2022.

Sec. 217.252 Permissible methods of taking.

Under LOAs issued pursuant to Sec. 216.106 of this chapter and
Sec. 217.256, the Holder of the LOA (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.250(b) by Level B harassment associated
with waterfront construction activities, provided the activity is in
compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.

Sec. 217.253 Prohibitions.

Notwithstanding takings contemplated in Sec. 217.250 and
authorized by a LOA issued under Sec. 216.106 of this chapter and
Sec. 217.256, no person in connection with the activities described in
Sec. 217.250 may:
(a) 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. 217.256;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner
other than as specified;
(d) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in an unmitigable adverse impact on the species or
stock of such marine mammal for taking for subsistence uses.

Sec. 217.254 Mitigation requirements.

When conducting the activities identified in Sec. 217.250, the
mitigation measures contained in any LOA issued under Sec. 216.106 of
this chapter and Sec. 217.256 must be implemented. These mitigation
measures shall include but are not limited to:
(a) General conditions:
(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 shall conduct briefings for construction supervisors
and crews, marine mammal monitoring team, acoustic monitoring team, and
Navy staff prior to the start of the first pile driving activity
conducted pursuant to this chapter, and when new personnel join the
work, in order to explain responsibilities, communication procedures,
marine mammal monitoring protocol, and operational procedures.
(b) Except for pile driving covered under paragraphs (c) and (d) of
this section, for all pile driving activity, the Navy shall implement a
minimum shutdown zone of 15 m radius around the pile. If a marine
mammal comes within or approaches the shutdown zone, such operations
shall cease.
(c) For impact pile driving associated with Project 3F (Warping
Wharf with Capstan), the Navy shall implement a minimum shutdown zone
of 40 m radius around the pile. If a marine mammal comes within or
approaches the shutdown zone, such operations shall cease.
(d) For impact pile driving associated with Project 4B (Small Craft
Berth Site VI), the Navy shall implement a minimum shutdown zone of 20
m radius around the pile. If a marine mammal comes within or approaches
the shutdown zone, such operations shall cease.
(e) The Navy shall deploy marine mammal observers as indicated in
the final Marine Mammal Monitoring Plan and as described in Sec.
217.255 of this chapter.
(1) For all pile driving activities, a minimum of one observer
shall be stationed at the active pile driving rig or within reasonable
proximity of the rig in order to monitor the shutdown zone.
(2) Monitoring shall take place from 15 minutes prior to initiation
of pile driving activity through 30 minutes post-completion of pile
driving activity. Pre-activity monitoring shall be conducted for 15
minutes to ensure that the shutdown zone is clear of marine mammals,
and pile driving may commence when observers have declared the shutdown
zone clear of marine mammals. In the event of a delay or shutdown of
activity resulting from marine mammals in the shutdown zone, animals
shall be allowed to remain in the shutdown zone (i.e., must leave of
their own volition) and their behavior shall be monitored and
documented. Monitoring shall occur throughout the time required to
drive a pile. The entire shutdown zone must be visible before it can be
deemed clear of marine mammals.
(3) If a marine mammal approaches or enters the shutdown zone, all
pile driving activities at that location shall 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 fifteen minutes have passed without re-detection of the animal.
(4) Monitoring shall be conducted by trained observers, who shall
have no other assigned tasks during monitoring periods. Trained
observers shall be placed from 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.
(f) The Navy shall use soft start techniques for impact pile
driving. Soft start for impact drivers requires contractors to provide
an initial set of strikes at reduced energy, followed by a thirty-
second waiting period, then two subsequent reduced energy strike sets.
Soft start shall 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 thirty minutes or longer.
(g) Pile driving shall only be conducted during daylight hours.

Sec. 217.255 Requirements for monitoring and reporting.

(a) Trained observers shall complete applicable portions of the
Navy's Marine Species Awareness Training, as well as a general
environmental awareness briefing conducted by Navy staff. At minimum,
training shall include identification of bottlenose dolphins and
relevant mitigation and monitoring requirements. All observers shall
have no other construction-related tasks while conducting monitoring.
(b) For shutdown zone monitoring, the Navy shall report on
implementation of shutdown or delay procedures, including whether the
procedures were not implemented and why (when relevant).
(c) The Navy shall deploy additional observers to monitor
disturbance zones according to the minimum requirements defined in this
chapter. These observers shall collect sighting data and behavioral
responses to pile driving for

[[Page 26375]]

marine mammal species observed in the region of activity during the
period of activity, and shall communicate with the shutdown zone
observer as appropriate with regard to the presence of marine mammals.
All observers shall be trained in identification and reporting of
marine mammal behaviors.
(1) During Project 1A (Tug Pier), Navy shall deploy a minimum of
three additional marine mammal monitoring observers on a minimum of ten
days of vibratory pile driving activity.
(2) During Project 2 (UMC Layberth (P-661)), Navy shall deploy a
minimum of two additional marine mammal monitoring observers on a
minimum of three days of impact pile driving activity.
(3) During the fiscal year 2022 phase of Project 3A (Explosives
Handling Wharf #2), Navy shall deploy a minimum of three additional
marine mammal monitoring observers on a minimum of three days of
vibratory pile driving activity.
(4) During Project 3B ((Dry Dock) Interface Wharf), Navy shall
deploy a minimum of three additional marine mammal monitoring observers
on a minimum of five days of vibratory pile driving activity.
(5) During Projects 3C, 3D, and 3E (Refit Wharves #1-3), Navy shall
deploy a minimum of two additional marine mammal monitoring observers
on all days of pile driving activity.
(6) During Project 3F (Warping Wharf with Capstan), Navy shall
deploy a minimum of three additional marine mammal monitoring observers
on a minimum of two days of vibratory pile driving activity.
(7) During Project 3G (Tug Pier), Navy shall deploy a minimum of
three additional marine mammal monitoring observers on a minimum of
four days of vibratory pile driving activity.
(8) During Project 4A (Transit Protection System (TPS) Pier), Navy
shall deploy a minimum of four additional marine mammal monitoring
observers on a minimum of eight days of vibratory pile driving
activity.
(9) During Project 4B (Small Craft Berth Site VI), Navy shall
deploy a minimum of four additional marine mammal monitoring observers
on a minimum of three days of vibratory pile driving activity.
(10) During Project 5 (Magnetic Silencing Facility Repairs), Navy
shall deploy a minimum of four additional marine mammal monitoring
observers on a minimum of three days of vibratory pile driving
activity.
(11) During Projects 6A (Demolition of TPS Pier) and 6B (Demolition
of North Trestle), Navy shall deploy a minimum of five additional
marine mammal monitoring observers on a minimum of twelve days of
vibratory pile driving activity.
(d) The Navy shall conduct acoustic data collection (sound source
verification and propagation loss), in accordance with NMFS's
guidelines, in conjunction with Project 1A (Tug Pier), Project 2
(Unspecified Minor Construction Layberth Fender Pile Modification),
Project 4A (TPS Pier), and Project 5 (Magnetic Silencing Facility).
(e) Reporting:
(1) Annual reporting:
(i) Navy shall submit an annual summary report to NMFS not later
than ninety days following the end of in-water work for each project.
Navy shall provide a final report within thirty days following
resolution of comments on the draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Date and time that monitored activity begins or ends;
(B) Construction activities occurring during each observation
period;
(C) Weather parameters (e.g., wind speed, percent cloud cover,
visibility);
(D) Water conditions (e.g., sea state, tide state);
(E) Species, numbers, and, if possible, sex and age class of marine
mammals;
(F) Description of any observable marine mammal behavior patterns,
including bearing and direction of travel and distance from pile
driving activity;
(G) Distance from pile driving activities to marine mammals and
distance from the marine mammals to the observation point;
(H) Description of implementation of mitigation measures (e.g.,
shutdown or delay);
(I) Locations of all marine mammal observations; and
(J) Other human activity in the area.
(2) Navy shall submit a comprehensive summary report to NMFS no
later than 90 days following the conclusion of marine mammal monitoring
efforts described in this chapter.
(3) Navy shall submit acoustic monitoring reports as necessary
pursuant to Sec. 217.255(d).
(f) Reporting of injured or dead marine mammals:
(1) In the unanticipated event that the activity defined in Sec.
217.250 clearly causes the take of a marine mammal in a prohibited
manner, Navy shall immediately cease such activity and report the
incident to the Office of Protected Resources (OPR), NMFS, and to the
Southeast Regional Stranding Coordinator, NMFS. Activities shall not
resume until NMFS is able to review the circumstances of the prohibited
take. NMFS will work with Navy to determine what measures are necessary
to minimize the likelihood of further prohibited take and ensure MMPA
compliance. Navy may not resume their activities until notified by
NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility);
(iv) Description of all marine mammal observations in the 24 hours
preceding the incident;
(v) Species identification or description of the animal(s)
involved;
(vi) Fate of the animal(s); and
(vii) Photographs or video footage of the animal(s). Photographs
may be taken once the animal has been moved from the waterfront area.
(2) In the event that Navy discovers an injured or dead marine
mammal and determines that the cause of the injury or death is unknown
and the death is relatively recent (e.g., in less than a moderate state
of decomposition), Navy shall immediately report the incident to OPR
and the Southeast Regional Stranding Coordinator, NMFS. The report must
include the information identified in paragraph (f)(1) of this section.
Activities may continue while NMFS reviews the circumstances of the
incident. NMFS will work with Navy to determine whether additional
mitigation measures or modifications to the activities are appropriate.
(3) In the event that Navy discovers an injured or dead marine
mammal and determines that the injury or death is not associated with
or related to the activities defined in Sec. 217.250 (e.g., previously
wounded animal, carcass with moderate to advanced decomposition,
scavenger damage), Navy shall report the incident to OPR and the
Southeast Regional Stranding Coordinator, NMFS, within 24 hours of the
discovery. Navy shall provide photographs or video footage or other
documentation of the stranded animal sighting to NMFS. Photographs may
be taken once the animal has been moved from the waterfront area.

Sec. 217.256 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these
regulations, Navy must apply for and obtain a LOA.
(b) A LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.

[[Page 26376]]

(c) If a LOA expires prior to the expiration date of these
regulations, 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 a LOA, Navy must apply
for and obtain a modification of the LOA as described in Sec. 217.257.
(e) The LOA shall set forth:
(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 shall 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 a LOA shall be published in the
Federal Register within thirty days of a determination.

Sec. 217.257 Renewals and modifications of Letters of Authorization.

(a) A LOA issued under Sec. 216.106 of this chapter and Sec.
217.256 for the activity identified in Sec. 217.250 shall be renewed
or modified upon request by the applicant, provided that:
(1) The proposed 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 (excluding changes
made pursuant to the adaptive management provision in paragraph (c)(1)
of this section), and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For a LOA modification or renewal requests by the applicant
that include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in paragraph (c)(1) of this section) that do not change the
findings made for the regulations or that 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) A LOA issued under Sec. 216.106 of this chapter and Sec.
217.256 for the activity identified in Sec. 217.250 may be modified by
NMFS under the following circumstances:
(1) Adaptive Management--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 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 a LOA:
(A) Results from Navy's monitoring from previous years.
(B) Results from other marine mammal and/or sound research or
studies.
(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.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed LOA in the Federal Register and
solicit public comment.
(2) Emergencies--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. 216.106 of
this chapter and Sec. 217.256, a LOA may be modified without prior
notice or opportunity for public comment. Notice would be published in
the Federal Register within thirty days of the action.

Sec. 217.258 [Reserved]

Sec. 217.259 [Reserved]

[FR Doc. 2017-11805 Filed 6-6-17; 8:45 am]
BILLING CODE 3510-22-P

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