Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction at Naval Station Norfolk in Norfolk, Virginia, 24340-24359 [2021-09512]

Download as PDF khammond on DSKJM1Z7X2PROD with RULES 24340 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations 11 at Lubbock in the DTV Table of Allotments. For the reasons set forth in the Report and Order referenced below, the Bureau amends FCC regulations to substitute channel 36 for channel 11 at Lubbock. DATES: Effective May 6, 2021. FOR FURTHER INFORMATION CONTACT: Joyce Bernstein, Media Bureau, at (202) 418–1647 or Joyce.Bernstein@fcc.gov. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission’s Report and Order, MB Docket No. 21–61; RM– 11885; DA 21–477, adopted April 26, 2021, and released April 26, 2021. The full text of this document is available for download at https://www.fcc.gov/edocs. 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In § 73.622(i), amend the PostTransition Table of DTV Allotments, under Texas, by revising the entry for Lubbock to read as follows: ■ § 73.622 Digital television table of allotments. * * * (i) * * * * * Community * * Channel No. * * * TEXAS * * * * Lubbock ................................ * * * * 16, 27, 35, 36, * 39, 40 * * [FR Doc. 2021–09537 Filed 5–5–21; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 218 [Docket No. 210421–0084] RIN 0648–BJ90 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction at Naval Station Norfolk in Norfolk, Virginia National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS, upon request of the U.S. Navy (Navy), hereby issues SUMMARY: PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 regulations to govern the unintentional taking of marine mammals incidental to construction activities including marine structure maintenance, pile replacement, and select waterfront improvements at Naval Station Norfolk (NAVSTA Norfolk) over the course of five years (2021–2026). These regulations, which allow for the issuance of a Letter 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, as well as requirements pertaining to the monitoring and reporting of such taking. DATES: Effective from June 7, 2021 to June 7, 2026. ADDRESSES: A copy of the Navy’s application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https:// www.fisheries.noaa.gov/action/ incidental-take-authorization-us-navyconstruction-naval-station-norfolknorfolk-virginia. In case of problems accessing these documents, please call the contact listed below. FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Purpose and Need for Regulatory Action We received an application from the Navy requesting five-year regulations and authorization to take multiple species of marine mammals. This rule establishes a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take by Level B harassment of marine mammals incidental to the Navy’s construction activities, including impact and vibratory pile driving. Please see Background below for definitions of harassment. Legal Authority for the Action Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 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 and other means of E:\FR\FM\06MYR1.SGM 06MYR1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations effecting the ‘‘least practicable adverse impact’’ on the affected species or stocks and their habitat (see the discussion below in the Mitigation Measures section), 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 fiveyear 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 construction activities. These measures include: • Required monitoring of the 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; and • 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. khammond on DSKJM1Z7X2PROD with RULES Background Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made, regulations are issued, and notice is provided to the public. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other ‘‘means of effecting the least practicable adverse impact’’ on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as ‘‘mitigation’’); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. Summary of Request In February 2020, NMFS received a request from the Navy for an LOA to take marine mammals incidental to construction activities including marine structure maintenance, pile replacement, and select waterfront improvements at NAVSTA Norfolk. NMFS reviewed the Navy’s application, and the Navy provided an updated version addressing NMFS’ questions and comments on May 22, 2020. The application was deemed adequate and complete and published for public review and comment on June 9, 2020 (85 FR 35267). We did not receive substantive comments on the notice of the receipt of the Navy’s application. We subsequently published a proposed rule in the Federal Register on December 21, 2020 (85 FR 83001). Comments received during the public comment period on the proposed regulations are addressed in the Comments and Responses section of this final rule. The Navy plans to conduct construction activities at NAVSTA Norfolk and nearby facilities off the lower Chesapeake Bay. Among other activities, the planned project will include both vibratory pile driving and removal, and impact pile driving. The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in harassment of marine mammals. The Navy requested authorization to take a small number of five species of marine mammals by Level B harassment only. Neither the Navy nor NMFS expect serious injury or mortality to result from this activity. The regulations are valid for five years (2021–2026). Description of the Specified Activity The Navy is proposing to conduct construction activities at NAVSTA Norfolk on the Naval Station, and at nearby facilities off the lower Chesapeake Bay. The Navy’s planned activities include pile replacement at the Morale, Welfare and Recreation Marina, and installation of two new floating docks at the V-area. Both areas are located on the Naval Station. The Navy also proposes to conduct maintenance/repair activities at the Naval Station and neighboring Defense Fuel Supply Point Craney Island and Lambert’s Point Deperming Station (see Figure 1 of the proposed rule; 85 FR 83001; December 21, 2020). The Navy has indicated specific projects where PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 24341 existing needs have been identified, as well as estimates for expected emergent or emergency repairs. The planned project will include both vibratory pile driving and removal, and impact pile driving (hereafter, collectively referred to as ‘‘pile driving’’) over approximately 574 days over five years (2021–2026), with the greatest amount of work occurring during Year 1 (approximately 208 days). The Navy plans to conduct all work during daylight hours. A detailed description of the planned construction project is provided in the proposed rule (85 FR 83001; December 21, 2020). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to the proposed rule for the description of the specific activity. Comments and Responses We published a proposed rule in the Federal Register on December 21, 2020 (85 FR 83001). During the 30-day comment period, we received a letter from the Marine Mammal Commission (Commission), and a comment from the general public. Summaries of all substantive comments, and our responses to these comments, are provided here. Please see the comment letter, available online at: https:// www.fisheries.noaa.gov/action/ incidental-take-authorization-us-navyconstruction-naval-station-norfolknorfolk-virginia, for full detail regarding the comments received. Comment 1: The Commission recommended that NMFS re-estimate the numbers of Level B harassment takes of harbor seals based on up to 21 rather than 14 seals potentially being taken on the various days of proposed activities. Response: In the proposed rule, NMFS calculated takes based on haulout data from the CBBT (14 Level B harassment takes per day. See the Estimated Take section of the proposed rule; 85 FR 83001; December 21, 2020). The CBBT is approximately 19 km (kilometers; 12 miles (mi)) from the project site, and the ES haulout is approximately 48 km (30 mi) from the project site. While some seals tagged at ES haulouts entered the Chesapeake Bay (Ampela et al. 2019), even if a seal enters the Chesapeake Bay, it does not necessarily enter the project area. The Level B harassment zones are <50 m for all impact pile driving, and given the shoreline, Level B harassment zones during vibratory pile driving would be truncated in many directions. Additionally, some seals move between the CBBT and ES haulout sites (Jones et al. 2018); therefore, including seals from E:\FR\FM\06MYR1.SGM 06MYR1 khammond on DSKJM1Z7X2PROD with RULES 24342 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations both haulouts could result in double counting of the same animals. Further, the nearby HRBT project began pile installation in September, and no seals have been sighted during five months of construction under the project’s Marine Mammal Monitoring and Mitigation Program. Therefore, the best available information indicates that the take estimate included in the proposed rule is already conservative, and it is not appropriate to increase the take estimate as suggested by the Commission. Therefore, NMFS does not concur with the Commission’s recommendation and does not adopt it. Comment 2: The Commission recommended that NMFS require the Navy to (1) conduct sound source and sound propagation measurements of vibratory and impact installation of at least 10 high-density polyethylene (HDPE), 10 hollow-core fiberglass, and 3 concrete piles using near-field and farfield hydrophones placed mid-water column and (2) include certain specific elements in its hydroacoustic monitoring report. The Commission also recommended that NMFS require the Navy to increase the sizes of the shut-down zones and Level B harassment zones if the measured data indicate that the modelestimated zones were underestimated. Response: Since publication of the proposed rule, the Navy has determined that sound source verification (SSV) may not be feasible given budget constraints associated with the individual, small-scale projects planned. Therefore, NMFS did not adopt the Commission’s recommendation to require sound source and sound propagation measurements for the number of piles it indicated, and NMFS has removed the SSV requirement from this final rule. However, subject to funding availability, the Navy may conduct a SSV study for pile types other than timber piles (prioritizing composite pile types). As noted in the proposed rule, composite piles may be either HDPE or hollowcore fiberglass; the Navy will not necessarily install both types. If funding is available for a SSV study, the Navy will develop an acoustic monitoring plan. The acoustic monitoring plan would follow accepted methodologies regarding source level measurements and propagation measurements. NMFS generally agrees with the elements that the Commission has suggested that the Navy report, though the exact reporting requirements would be outlined in an acoustic monitoring plan, which would be available at a later date, and would be VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 reviewed and approved by NMFS prior to implementation. If the Navy conducts hydroacoustic monitoring, and the results suggest that the Level A or Level B harassment zones were underestimated in this final rule, NMFS will work with the Navy to update the Level A and Level B harassment zone sizes and the associated shutdown zones, as appropriate. Comment 3: The Commission recommends generally that NMFS require the use of shutdown zones that encompass the extent of the associated Level A harassment zone. Specifically, the Commission recommends that NMFS require the Navy to implement a shutdown zone of 55 m rather than 50 m for low-frequency (LF) cetaceans during impact installation of 24-inch (in) concrete piles. Response: NMFS does not agree with the Commission’s rationale for this recommendation. Generally speaking, given the duration component associated with actual occurrence of Level A harassment take, it is not necessary to require a shutdown zone equivalent to the estimated Level A harassment zone to avoid permanent threshold shift (PTS), i.e., Level A harassment take. Regardless, in this case, the proposed 50 m shutdown zone is essentially equivalent to the estimated 52 m Level A harassment zone. Nevertheless, the Navy has agreed to implement the 55 m shutdown zone recommended by the Commission. Comment 4: The Commission recommended that NMFS require the Navy to use at least three PSOs to monitor for marine mammals during vibratory pile installation and removal at Pier 3, Pier 12, and Craney Island and four PSOs for Lambert’s Point positioned sufficiently in the far field to monitor the largest extents of the respective Level B harassment zones. Response: NMFS concurs with the Commission’s recommendation and has adopted it. This final rule requires the Navy to employ at least three PSOs during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs during vibratory pile driving at Lambert’s Point, though the exact locations are not stipulated. For all other pile driving activities, a minimum of two PSOs will be used, as stated in the proposed rule (85 FR 83001; December 21, 2020). Comment 5: The Commission recommended that NMFS make available to the public for review and comment all monitoring plans, hydroacoustic and marine mammalrelated, contemporaneously with any proposed rule or proposed incidental PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 harassment authorization that NMFS publishes in the Federal Register. Response: NMFS agrees that it is important to ensure adequate review of monitoring plans, including hydroacoustic and marine mammalrelated monitoring plans, before they are implemented by applicants. NMFS will review the Navy’s proposed marine mammal monitoring plan prior to the start of construction, and therefore prior to the implementation of the plan. If funding is available for a SSV study, the Navy will develop an acoustic monitoring plan, and NMFS will review and approve the plan prior to its implementation. It is important to provide the objectives of proposed monitoring for review by the public. However, as is the case here, methodological details follow widely accepted practices and, therefore, it is unnecessary to provide these plans for public review. To do so would necessitate development of standalone plans at an earlier stage than is ideal or, in some cases, possible. While the Navy initially expected to submit a standalone marine mammal monitoring and mitigation plan in association with the application, it has since indicated that it is unable to do so given restrictions on funding allocation between NEPA and associated analyses/ consultations such as this MMPA authorization and separate construction project funding. The construction project funding must be used for further development of site/project-specific monitoring plans at a later stage of project development. All monitoring requirements in the Navy’s LOA application, this final rule, and any subsequent LOA(s) will be incorporated into the construction contractor’s monitoring plan. Comment 6: The Commission recommended that NMFS include the requirement, which it deems standard, that the Navy conduct pile driving and removal activities during daylight hours only either in section 218.5 of the final rule or in any LOA issued under the final rule. Response: We do not concur with the Commission’s recommendations, or with their underlying justification, and did not adopt them. While the Navy has no intention of conducting pile driving activities at night, it is unnecessary to preclude such activity should the need arise (e.g., on an emergency basis or to complete driving of a pile begun during daylight hours, should the construction operator deem it necessary to do so). Further, while acknowledging that prescribed mitigation measures for any specific action (and an associated determination that the prescribed E:\FR\FM\06MYR1.SGM 06MYR1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations measures are sufficient to achieve the least practicable adverse impact on the affected species or stocks and their habitat) are subject to review by the Commission and the public, any determination of what measures constitute ‘‘standard’’ mitigation requirements is NMFS’ alone to make. Even in the context of measures that NMFS considers to be ‘‘standard’’ we reserve the flexibility to deviate from such measures, depending on the circumstances of the action. We disagree with the statement that a prohibition on pile driving activity outside of daylight hours would help to ensure that the Navy is effecting the least practicable adverse impact on the affected species, and the Commission does not justify this assertion. The final rule includes a measure stating that ‘‘should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), pile driving and removal must be delayed until observers are confident marine mammals within the shutdown zone could be detected,’’ though this need not preclude pile driving at night with sufficient illumination. Comment 7: The Commission recommends that NMFS revise section 218.6(g)(9) in the final rule to require the Navy to report the number of individuals of each species detected within the Level A and B harassment zones, and estimates of the number of marine mammals taken by Level A and B harassment, by species. In a related comment, the Commission recommended that, for the final rule, NMFS include requirements in section 218.6(g) that the Navy include in its monitoring report (1) the estimated percentages of the Level B harassment zones that were not visible, (2) an extrapolation of the estimated takes by Level B harassment based on the number of observed exposures within the Level B harassment zones and the percentages of the Level B harassment zones that were not visible (i.e., extrapolated takes), and (3) the total number of Level B harassment takes based on both the observed and extrapolated takes for each species. Response: We do not fully concur with the Commission’s recommendation and do not adopt it as stated. NMFS agrees with the recommendation to require the Navy to report the number of individuals of each species detected within the Level A and Level B harassment zones. Section 218.6(g)(9) in the proposed rule stated that the Navy must report the ‘‘number of marine mammals detected within the VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 harassment zones, by species,’’ which is effectively the same measure as the Commission’s recommended ‘‘number of individuals of each species detected within the Level A and B harassment zones.’’ Therefore, NMFS did not modify that measure. NMFS does not agree with the recommendation to require the Navy to report estimates of the numbers of marine mammals taken by Level A and Level B harassment. The Commission does not explain why it believes this requirement is necessary, nor does it provide recommendations for methods of generating such estimates in a manner that would lead to credible results. NMFS does not agree that the basic method described in footnote 22 of the Commission’s November 19, 2020 letter should be expected to yield estimates of total take such that readers of the Navy’s report should have confidence that the estimates are reasonable representations of what may have actually occurred. NMFS does agree that the Navy should report the estimated percentage(s) of the Level B harassment zones that were not visible, and has included this requirement in this final rule (See section 218.6(g)(12)). These pieces of information—numbers of individuals of each species detected within the harassment zones and the estimated percentage(s) of the harassment zones that were not visible—may be used to glean an approximate understanding of whether the Navy may have exceeded the amount of take authorized. Although the Commission does not explain its reasoning for offering these recommendations, NMFS recognizes the basic need to understand whether an IHA-holder may have exceeded its authorized take. The need to accomplish this basic function of reporting does not require that NMFS require applicants to use methods we do not have confidence in to generate estimates of ‘‘total take’’ that cannot be considered reliable. Comment 8: The Commission recommended that NMFS reinforce that the Navy must keep a running tally of the total Level B harassment takes, both observed and extrapolated, for each species consistent with section 218.5(a)(10) of the final rule. Response: The LOA will indicate the number of takes authorized for each species. We agree that the Navy must ensure they do not exceed authorized takes, but do not concur with the Commission’s repeated recommendations regarding the need for NMFS to dictate how an applicant does so, including by requiring an applicant to maintain a ‘‘running tally’’ of takes. Regardless of the Commission’s PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 24343 substitution of the word ‘‘reinforce’’ for the word ‘‘ensure,’’ as compared with its prior recommendations for other actions, compliance with the terms of an issued LOA remains the responsibility of the LOA-holder. Changes From Proposed to Final Regulations As noted by the Commission in its informal comments on the proposed rule, Table 13 in the proposed rule mistakenly indicated an estimate of 20 Level B harassment takes of harbor porpoise over the five-year duration of this rule. NMFS corrected this take estimate to reflect 24 takes over the fiveyear period, as described in the Estimated Take section of this final rule. NMFS has also adjusted the harbor seal take estimate in this final rule to reflect estimated take of 13.6 harbor seals per day, rather than 14 harbor seals per day included in the proposed rule, also described further in the Estimated Take section. Regarding mitigation, this final rule requires the Navy to establish a 55 m shutdown zone for LF cetaceans during impact driving of 24-in concrete piles, rather than 50 m included in the proposed rule. Regarding monitoring, the proposed rule stated that the Navy would conduct SSV for composite piles; however, this final rule does not include a requirement for the Navy to conduct SSV. Please see the Acoustic Monitoring section for additional information. This final rule requires the Navy to employ at least three PSOs during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs during vibratory pile driving at Lambert’s Point, though the exact locations have not been determined. For all other pile driving activities, a minimum of two PSOs will be used, as stated in the proposed rule (85 FR 83001; December 21, 2020). This change is reflected in the Monitoring and Reporting section of this final rule and in section 218.6(b). Regarding reporting, this final rule requires the Navy to report the estimated percentage of the Level B harassment zone that was not visible. Description of Marine Mammals in the Area of Specified Activities Sections 3 and 4 of the Navy’s application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS’s SARs (https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ E:\FR\FM\06MYR1.SGM 06MYR1 24344 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations marine-mammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website (https:// www.fisheries.noaa.gov/find-species). Table 1 lists all species or stocks for which take is expected and may be authorized, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2020). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS’s SARs). While no mortality is anticipated, nor will mortality be authorized, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’s U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al. 2020). All values presented in Table 1 are the most recent available at the time of publication and are available in the 2019 SARs (Hayes et al. 2020) or the 2020 draft SARS, available at https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessment-reports. TABLE 1—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA Common name Scientific name Stock I ESA/ MMPA status; strategic (Y/N) 1 I Stock abundance (CV, Nmin, most recent abundance survey) 2 Annual M/SI 3 PBR I I Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Balaenopteridae (rorquals): Humpback whale ........................ Megaptera novaeangliae ........ Gulf of Maine .......................... -,-; N 1,396 (0; 1,380; see SAR). 22 12.15 48 12.2–21.5 23 0–18.3 7.8 7.2–30 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Bottlenose dolphin ...................... Family Phocoenidae (porpoises): Harbor porpoise .......................... Tursiops truncatus .................. Phocoena phocoena ............... Western North Atlantic (WNA) Coastal, Northern Migratory. WNA Coastal, Southern Migratory. Northern North Carolina Estuarine System (NNCES). -,-; Y Gulf of Maine/Bay of Fundy .... -, -; N 95,543 (0.31; 74,034; 2016). 851 217 -; N 75,834 (0.15; 66,884, 2012). 27,131 (0.19, 23,158, 2016). 2,006 350 -,-; Y -,-; Y 6,639 (0.41; 4,759; 2016). 3,751 (0.06; 2,353; 2011). 823 (0.06; 782; 2017) ... Order Carnivora—Superfamily Pinnipedia Family Phocidae (earless seals): Harbor seal ................................. Phoca vitulina ......................... WNA ....................................... Gray seal ........................................... Halichoerus grypus ................. WNA ....................................... -; N I I I 1,359 I 4,729 khammond on DSKJM1Z7X2PROD with RULES 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. As indicated above, all five species (with seven managed stocks) in Table 1 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we may authorize take. While North Atlantic right whales (Eubalaena glacialis), minke whales (Balaenoptera acutorostrata acutorostrata), and fin whales (Balaenoptera physalus) have been documented in the area, the temporal and/or spatial occurrence of these whales is such that take is not expected to occur, and they are not VerDate Sep<11>2014 17:46 May 05, 2021 Jkt 253001 discussed further beyond the explanation provided here. Based on sighting data and passive acoustic studies, the North Atlantic right whale could occur off Virginia year-round (DoN 2009; Salisbury et al. 2016). They have also been reported seasonally off Virginia during migrations in the spring, fall, and winter (CeTAP 1981, 1982; Niemeyer et al. 2008; Kahn et al. 2009; McLellan 2011b, 2013; Mallette et al. 2016a, 2016b, 2017, 2018a; Palka et al. 2017; Cotter 2019). Right whales are known to frequent the PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 coastal waters of the mouth of the Chesapeake Bay (Knowlton et al. 2002) and the area is a seasonal management area (November 1–April 30) mandating reduced ship speeds out to approximately 20 nautical miles (37 km) for the species; however, the project area is further inside the Bay. North Atlantic right whales have stranded in Virginia, one each in 2001, 2002, 2004, 2005: Three during winter (February and March) and one in summer (September) (Costidis et al. 2017, 2019). In January 2018, a dead, E:\FR\FM\06MYR1.SGM 06MYR1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations entangled North Atlantic right whale was observed floating over 60 miles (96.6 km) offshore of Virginia Beach (Costidis et al. 2019). All North Atlantic right whale strandings in Virginia waters have occurred on ocean-facing beaches along Virginia Beach and the barrier islands seaward of the lower Delmarva Peninsula (Costidis et al. 2017). Due to the low occurrence of North Atlantic right whales in the project area, NMFS is not authorizing take of this species. Fin whales have been sighted off Virginia (Cetacean and Turtle Assessment Program (CeTAP) 1981, 1982; Swingle et al. 1993; DoN 2009; Hyrenbach et al. 2012; Barco 2013; Mallette et al. 2016a, b; Aschettino et al. 2018; Engelhaupt et al. 2017, 2018; Cotter 2019), and in the Chesapeake Bay (Bailey 1948; CeTAP 1981, 1982; Morgan et al. 2002; Barco 2013; Aschettino et al. 2018); however, they are not likely to occur in the project area. Sightings have been documented around the Chesapeake Bay Bridge Tunnel (CBBT) during the winter months (CeTAP 1981, 1982; Barco 2013; Aschettino et al. 2018). Eleven fin whale strandings have occurred off Virginia from 1988 to 2016 mostly during the winter months of February and March, followed by a few in the spring and summer months (Costidis et al. 2017). Six of the strandings occurred in the Chesapeake Bay (three on eastern shore; three on western shore) with the remaining five occurring on the Atlantic coast (Costidis et al. 2017). Documented strandings near the project area have occurred: February 2012, a dead fin whale washed ashore on Oceanview Beach in Norfolk (Swingle et al. 2013); December 2017, a live fin whale stranded on a shoal in Newport News and died at the site (Swingle et al. 2018); February 2014, a dead fin whale stranded on a sand bar in Pocomoke Sound near Great Fox Island, Accomack (Swingle et al. 2015); and, March 2007, a dead fin whale near Craney Island, in the Elizabeth River, in Norfolk (Barco 2013). Only stranded fin whales have been documented in the project area; no free-swimming fin whales have been observed. Due to the low occurrence of fin whales in the project area, NMFS is not authorizing take of this species. Minke whales have been sighted off Virginia (CeTAP 1981, 1982; Hyrenbach et al. 2012; Barco 2013; Mallette et al. 2016a, b; McLellan 2017; Engelhaupt et al. 2017, 2018; Cotter 2019), near the CBBT (Aschettino et al. 2018), but sightings in the project area are from strandings (Jensen and Silber 2004; Barco 2013; DoN 2009). In August 1994, a ship strike incident involved a minke whale in Hampton Roads (Jensen and Silber 2004; Barco 2013). It was reported that the animal was struck offshore and was carried inshore on the bow of a ship (DoN 2009). Twelve strandings of minke whales have occurred in Virginia waters from 1988 to 2016 (Costidis et al. 2017). There have been six minke whale stranding from 2017 through 2020 in Virginia waters. Because all known minke whale occurrences in the project area are due to strandings, NMFS is not authorizing take of this species. A detailed description of the species likely to be affected by the Navy’s project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the proposed rule (85 FR 83001; December 21, 2020); since that time, we are not aware of any changes in the status of these species and stocks, except that the Gulf of Maine humpback whale stock has been designated as strategic in the 2020 draft SARs; therefore, detailed descriptions 24345 are not provided here. Please refer to the proposed rule for these descriptions (85 FR 83001; December 21, 2020). Please also refer to NMFS’ website (https:// www.fisheries.noaa.gov/find-species) for generalized species accounts. Marine Mammal Hearing Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al. 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., LF cetaceans). Subsequently, NMFS (2018) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for LF cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in Table 2. TABLE 2—MARINE MAMMAL HEARING GROUPS [NMFS, 2018] Generalized hearing range * Hearing group khammond on DSKJM1Z7X2PROD with RULES Low-frequency (LF) cetaceans (baleen whales) ............................................................................................................ Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) .................................. High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. australis). Phocid pinnipeds (PW) (underwater) (true seals) .......................................................................................................... Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ..................................................................................... 7 Hz to 35 kHz. 150 Hz to 160 kHz. 275 Hz to 160 kHz. 50 Hz to 86 kHz. 60 Hz to 39 kHz. * Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation). The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 especially in the higher frequency range (Hemila¨ et al. 2006; Kastelein et al. 2009; Reichmuth and Holt, 2013). E:\FR\FM\06MYR1.SGM 06MYR1 24346 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Five marine mammal species (three cetacean and two phocid pinniped species) have the reasonable potential to co-occur with the planned construction activities. Please refer to Table 1. Of the cetacean species that may be present, one is classified as a LF cetacean (i.e., humpback whale) one is classified as a mid-frequency cetacean (i.e., bottlenose dolphin), and one is classified as a highfrequency cetacean (i.e., harbor porpoise). khammond on DSKJM1Z7X2PROD with RULES Potential Effects of Specified Activities on Marine Mammals and Their Habitat The effects of underwater noise from the Navy’s activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the survey area. The proposed rule (85 FR 83001; December 21, 2020) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from the Navy’s construction activities on marine mammals and their habitat. That information and analysis is incorporated by reference into this final rule and is not repeated here; please refer to the proposed rule (85 FR 83001; December 21, 2020). The Estimated Take section in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Mitigation Measures section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks. We also provided additional description of sound sources in our proposed rule (85 FR 83001; December 21, 2020). Estimated Take This section provides an estimate of the number of incidental takes that may be authorized, which will inform both NMFS’ consideration of ‘‘small numbers’’ and the negligible impact determination. Harassment is the only type of take expected to result from these activities. Except with respect to certain activities VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 not pertinent here, section 3(18) of the MMPA defines ‘‘harassment’’ as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns and potential TTS for individual marine mammals resulting from exposure to pile driving and removal. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., shutdown zones) discussed in detail below in the Mitigation Measures section, Level A harassment is neither anticipated nor will be authorized. As described previously, mortality is neither anticipated nor will be authorized for this activity. Below we describe how the take is estimated. Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (e.g., previous monitoring results or average group size). Below, we describe the factors considered here in more detail and present the take estimate. Acoustic Thresholds NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Level B Harassment for non-explosive sources—Though significantly driven by PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al. 2007, Ellison et al. 2012). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 mPa (rms) (microPascal, root mean square) for continuous (e.g., vibratory pile-driving, drilling) and above 160 dB re 1 mPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources. The Navy’s construction includes the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 mPa (rms) are applicable. Level A harassment for non-explosive sources—NMFS’ Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or nonimpulsive). The Navy’s planned construction includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving) sources. These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ marine-mammal-acoustic-technicalguidance. E:\FR\FM\06MYR1.SGM 06MYR1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations 24347 TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset acoustic thresholds * (received level) Hearing group Impulsive Low-Frequency (LF) Cetaceans ...................................... Mid-Frequency (MF) Cetaceans ...................................... High-Frequency (HF) Cetaceans ..................................... Phocid Pinnipeds (PW) (Underwater) ............................. Otariid Pinnipeds (OW) (Underwater) ............................. Cell Cell Cell Cell Cell 1: 3: 5: 7: 9: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: 219 230 202 218 232 dB; dB; dB; dB; dB; Non-impulsive LE,LF,24h: 183 dB ......................... LE,MF,24h: 185 dB ........................ LE,HF,24h: 155 dB ........................ LE,PW,24h: 185 dB ....................... LE,OW,24h: 203 dB ....................... Cell Cell Cell Cell Cell 2: LE,LF,24h: 199 dB. 4: LE,MF,24h: 198 dB. 6: LE,HF,24h: 173 dB. 8: LE,PW,24h: 201 dB. 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels. The sound field in the project area is the existing background noise plus additional construction noise from the planned project. Marine mammals are expected to be affected via sound generated by the primary components of the project (i.e., impact pile driving and vibratory pile driving). The largest calculated Level B harassment zone extends 7.2 km (4.5 mi) from the source (though truncated by land in some directions), with an area of 4.7 km2 (1.8 mi2), as calculated using geographic information system (GIS) data as determined by the transmission loss modeling. TABLE 4—PROJECT SOUND SOURCE LEVELS Pile size and type Installation method 24-in Square Concrete .................... 16-in Composite .............................. Impact ................ Impact ................ Vibratory ............ Vibratory ............ 12-in Timber .................................... RMS SPL 176 165 158 2 158 Peak SPL SEL Source 189 177 ........................ ........................ 163 157 ........................ ........................ Illingworth and Rodkin, 2017. Caltrans, 2015.1 Illingworth and Rodkin, 2017. Illingworth and Rodkin, 2017. 1 These source levels are from a 12-in timber pile (Table 2–2, page 2–16). typically recommends a proxy source level of 152dB RMS SPL for installation and removal of 12-in timber piles; however, the Navy’s application included specialized modeling (described below) using 158dB RMS SPL. Given that modeling and that 158dB RMS SPL is a more conservative source level, NMFS concurred with the use of 158dB RMS SPL as the proxy source level for 12-in timber piles. 2 NMFS The Navy contracted the University of Washington, Applied Physics Laboratory (APL) to conduct sitespecific acoustic transmission loss modeling for the project. The APL’s full report is included in Appendix B of the Navy’s application. NMFS independently reviewed and concurred with the modeling in the report, and has adopted the resulting isopleths for the project, as included in Table 5. TABLE 5—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS Site Level A harassment isopleth (m) Pile size and type LF cetacean I MF cetacean I HF cetacean I Phocid Level B harassment isopleth (m) 1 Impact Pile Driving Pier 3 ................................................... Pier 12 ................................................. MWR Marina ........................................ khammond on DSKJM1Z7X2PROD with RULES V-Area ................................................. Craney Island ...................................... Lambert’s Point ................................... 16-in 16-in 24-in 16-in 24-in 16-in 16-in 16-in Composite .................................. Composite .................................. Concrete .................................... Composite .................................. Concrete .................................... Composite .................................. Composite .................................. Composite .................................. 18 18 52 11 42 11 16 19 <10m 27 24 59 18 47 17 21 28 Vibratory Pile Driving Pier 3 ................................................... Pier 12 ................................................. MWR Marina ........................................ V-Area ................................................. VerDate Sep<11>2014 16:26 May 05, 2021 16-in Composite/12-in Timber ............ Jkt 253001 PO 00000 Frm 00045 Fmt 4700 <10m Sfmt 4700 E:\FR\FM\06MYR1.SGM 5,615 4,159 469 382 06MYR1 24348 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations TABLE 5—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS—Continued Site Level A harassment isopleth (m) Pile size and type LF cetacean Craney Island ...................................... Lambert’s Point ................................... 1 Please I MF cetacean 16-in Composite/12-in Timber I HF cetacean I Phocid Level B harassment isopleth (m) 1 <10m 3,001 7,161 refer to Tables 6–5 and 6–6 in the Navy’s application for the areas of the Level B harassment zones. Marine Mammal Occurrence and Take Calculation and Estimation In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. We describe how the information provided above is brought together to produce a quantitative take estimate. Humpback Whale Humpback whales occur in the mouth of the Chesapeake Bay and nearshore waters of Virginia during winter and spring months. Most detections during shipboard surveys were of one or two juveniles per sighting. Although two individuals were detected in the vicinity of MPU project activities, there is no evidence that they linger for multiple days. Because no density estimates are available for the species in this area, the Navy estimated one take for every 60 days of pile driving. However, given the potential group size of two, as indicated by the sightings referenced above, NMFS has estimated that two humpback whales may be taken by Level B harassment for every 60 days of pile driving. Therefore, given the number of project days expected in each year (Table 4), NMFS may authorize a total of 24 takes by Level B harassment of humpback whale over the five-year authorization, with no more than eight takes by Level B harassment in one year. The largest Level A harassment zone for low-frequency cetaceans extends approximately 52 m from the source during impact pile driving of 24-in concrete piles at the MWR Marina (Table 5). For most activities, the Level A harassment zone is less than 20 m. The Navy is planning to implement a 55-m shutdown zone for humpback whales during impact pile driving of 24in concrete piles, and shutdown zones that include the entire Level A harassment isopleth for all activities, as indicated in Table 11. Therefore, the Navy did not request, and NMFS will not authorize Level A harassment take of humpback whale. Bottlenose Dolphin The expected number of bottlenose dolphins in the project area was estimated using inshore seasonal densities provided in Engelhaupt et al. (2016) from vessel line-transect surveys near NAVSTA Norfolk and adjacent areas near Virginia Beach, Virginia, from August 2012 through August 2015 (Engelhaupt et al. 2016). To calculate Level B harassment takes of bottlenose dolphin, NMFS used the Chesapeake Bay density of 1.38 dolphins/km2 (Engelhaupt et al. 2016). This density includes sightings inshore of the Chesapeake Bay from NAVSTA Norfolk west to the Thimble Shoals Bridge, and is the most representative density for the project area. NMFS conservatively multiplied the density of 1.38 dolphins/ km2 by the largest Level B harassment zone for each project location (Table 7) and then by the proportional number of estimated pile driving days at each location for each year (Table 6). For example, to calculate Level B harassment takes associated with work at Pier 3 in 2021, NMFS multiplied the density (1.38 dolphins/km2) by largest Level B harassment zone for Pier 3 (10.3 km2) by the proportional number of pile driving days at Pier 3 in 2021 (24.6) for a total of 350 Level B harassment takes at Pier 3 in 2021. Therefore, NMFS may authorize 7,566 takes by Level B harassment of bottlenose dolphin across all five years, with no more than 2,742 in one year. TABLE 6—ESTIMATED NUMBER OF PILE DRIVING DAYS AT EACH PROJECT LOCATION Estimated number of pile driving days (all seasons) khammond on DSKJM1Z7X2PROD with RULES Location 1 Proportional number of pile driving days 3 2021 2022 2023 2024 2025 Pier 3 .................................................................................................................. Pier 12 ................................................................................................................ MWR Marina ...................................................................................................... V-Area ................................................................................................................ Craney Island ..................................................................................................... Lambert’s Point .................................................................................................. 68 352 52 44 52 8 24.6 127.6 18.8 15.9 18.8 2.9 10.0 51.5 7.6 6.4 7.6 1.2 2.1 11.0 1.6 1.4 1.6 0.3 9.0 46.6 6.9 5.8 6.9 1.1 22.3 115.3 17.0 14.4 17.0 2.6 Estimated Total Pile Driving Days per Year ............................................... 2 574 208 84 18 76 188 Percentage of Total Pile Driving Days ....................................................... .......................... 36 15 3 13 33 1 While the Navy plans to conduct work at additional locations not listed here, these locations are assumed to be representative of the overall project site (ex: all pile driving lumped together at Lambert’s Point Deperming Station), as noted in Appendix A of the Navy’s application. Pile driving at these additional locations is included in the total number of pile driving days assumed here. 2 NMFS recognizes that due to rounding, the sum of the estimated number of work days at each location is 576, not 574. However, as mentioned previously, the Navy expects construction to last 574 days across all five years. 3 The number of pile driving days indicated per year at each location is intended to inform our assessment of both the total and maximum annual taking allowable under the rule. NMFS does not expect that the Navy will conduct exactly the fractional number of days of pile driving indicated for each year in each location. VerDate Sep<11>2014 18:07 May 05, 2021 Jkt 253001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\06MYR1.SGM 06MYR1 24349 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations TABLE 7—ANNUAL LEVEL B HARASSMENT TAKES OF BOTTLENOSE DOLPHIN BY PROJECT LOCATION Level B harassment takes 1 Largest Level B harassment zone (km2) Location 2021 2022 2023 2024 2025 Total Pier 3 .................................................................................................... Pier 12 .................................................................................................. MWR Marina ........................................................................................ V-Area .................................................................................................. Craney Island ....................................................................................... Lambert’s Point .................................................................................... 10.3 13.1 0.2 0.2 2.2 4.7 350.2 2,305.9 5.2 4.4 57.2 18.8 141.4 931.2 2.1 1.8 23.1 7.6 30.3 199.6 0.5 0.4 5.0 1.6 128.0 842.5 1.9 1.6 20.9 6.9 316.6 2,084.2 4.7 4.0 51.7 17.0 966.6 6,363.5 14.4 12.1 157.9 51.9 Total Level B Harassment Takes per Year .................................. ........................ 2,742 1,107 237 1,002 2,478 7,566 Annual Takes as Percentage of Five-Year Total ......................... ........................ 36.2 14.6 3.1 13.2 32.8 ............ 1 Note actual calculations were not rounded at each step as they are shown in Table 6 and Table 7. The Level A harassment zones for mid-frequency cetaceans extend less than 10 m from the source during all activities (Table 5). Given the small size of the Level A harassment zones, we do not expect Level A harassment take of bottlenose dolphins. Additionally, the Navy is planning to implement a 10 m shutdown zone for bottlenose dolphins during all pile driving and other inwater activities (Table 11), which includes the entire Level A harassment zone for all pile driving activities. Therefore, the Navy did not request, and NMFS will not authorize Level A harassment take of bottlenose dolphin. Harbor Porpoise Harbor porpoises are known to occur in the coastal waters near Virginia Beach (Hayes et al. 2019). Density data for this species within the project vicinity do not exist or were not calculated because sample sizes were too small to produce reliable estimates of density. Harbor porpoise sighting data collected by the U.S. Navy near NAVSTA Norfolk and Virginia Beach from 2012 to 2015 (Engelhaupt et al. 2014; 2015; 2016) did not produce enough sightings to calculate densities. One group of two harbor porpoises was seen during spring 2015 (Engelhaupt et al. 2016). Elsewhere in their range, harbor porpoises typically occur in groups of two to three individuals (Carretta et al. 2001; Smultea et al. 2017). Because there are no density estimates for the species in the MPU project area, the Navy conservatively estimated two takes of harbor porpoise by Level B harassment per 60 pile driving days (Table 4), resulting in 20 takes by Level B harassment across the five year rule, and no more than seven takes by Level B harassment in one year. NMFS corrected this estimate in this final rule to reflect that an estimated two takes of harbor porpoise by Level B harassment per 60 pile driving days results in 24 takes by Level B harassment over the five year duration of the rule, with no more than eight takes by Level B harassment in one year (Table 9). NMFS may authorize 24 takes by Level B harassment of harbor porpoise. The Level A harassment zones for high-frequency cetaceans extend less than 10 m from the source during all activities (Table 5). Given the small size of the Level A harassment zones, we do not expect take by Level A harassment of harbor porpoise. Additionally, the Navy is planning to implement a 10 m shutdown zone for during pile driving and other in-water activities (Table 11). Therefore, the Navy did not request, and NMFS will not authorize take by Level A harassment of harbor porpoise. Harbor Seal The expected number of harbor seals in the project area was estimated using systematic, land- and vessel-based survey data for in-water and hauled-out seals collected by the U.S. Navy at the CBBT rock armor and portal islands from 2014 through 2019 (Jones et al. 2020). The average daily seal count from the 2014 through 2019 field seasons ranged from 8 to 23, with an average of 13.6 harbor seals across all the field seasons (Table 8). TABLE 8—HARBOR SEAL COUNTS AT CHESAPEAKE BAY BRIDGE TUNNEL ‘‘In season’’ survey days Field season 2014–2015 2015–2016 2016–2017 2017–2018 2018–2019 Total seal count Average daily seal count Max daily seal count ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... 11 14 22 15 10 113 187 308 340 82 10 13 14 23 8 33 39 40 45 17 Average .................................................................................................... ........................ ........................ 13.6 34.8 khammond on DSKJM1Z7X2PROD with RULES Source: Jones et al. 2020. The Navy expects, and NMFS concurs, that harbor seals are likely to be present from November to April. In the proposed rule, NMFS calculated take by Level B harassment by VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 multiplying 14 seals by the number of pile driving days expected in each year if fewer than 183 project days (half of the year) were expected. To account for seasonal occurrence (November to PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 April), NMFS calculated take based on 183 project days for years which have more than 183 expected project days (2021, 2025). In this final rule, NMFS calculated take in a parallel manner to E:\FR\FM\06MYR1.SGM 06MYR1 24350 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations that done in the proposed rule, except NMFS estimated 13.6 seals per day, rather than 14 seals per day to produce a more exact take estimate using the average daily seal count from Jones et al. (2020). Therefore, NMFS may authorize 7,399 takes by Level B harassment of harbor seals across the five-year duration of this rule, with no more than 2,489 takes by Level B harassment in one year (Table 9). The Level A harassment zones for phocids extend less than 10 m from the source during all activities (Table 5). Given the small size of the Level A harassment zones, we do not expect take by Level A harassment of harbor seal. Additionally, the Navy is planning to implement a 10 m shutdown zone for during pile driving and other in-water activities (Table 11), which includes the entire Level A harassment zone for all pile driving activities. Therefore, the Navy did not request, and NMFS will not authorize take by Level A harassment of harbor seal. Gray Seal Very little information is available about the occurrence of gray seals in the Chesapeake Bay and coastal waters. Although the population of the United States may be increasing, there are only a few records at known haulout sites in Virginia used by harbor seals, strandings are rare, and they have not been reported in shipboard surveys. Assuming that they may utilize the Chesapeake Bay waters, the Navy conservatively estimates that one gray seal may be exposed to noise levels above the Level B harassment threshold for every 60 days of vibratory pile driving during the six month period when they are most likely to be present. NMFS concurs, and calculated take based on the number of project days for years which have fewer than 183 project days (half of the year). To account for the expected seasonal presence of gray seals, NMFS calculated take based on 183 project days for years which have more than 183 expected project days (2021, 2025). Therefore, NMFS may authorize nine takes by Level B harassment of gray seals over the fiveyear duration of the rule, with no more than three takes by Level B harassment in one year (Table 9). The Level A harassment zones for phocids extend less than 10 m from the source during all activities (Table 5). Given the small size of the Level A harassment zones and the low occurrence of gray seals in the project area, we do not expect Level A harassment take of gray seal. Additionally, the Navy is planning to implement a 10 m shutdown zone for during pile driving and other in-water activities (Table 11), which includes the entire Level A harassment zone for all pile driving activities. Therefore, the Navy did not request, and NMFS will not authorize take by Level A harassment of gray seal. TABLE 9—ESTIMATED TAKE BY LEVEL B HARASSMENT, BY SPECIES Species 2021 Humpback whale ..................................... Bottlenose dolphin ................................... Harbor porpoise 1 ..................................... Harbor seal 1 ............................................ Gray seal .................................................. 1 Updated 2022 8 2,742 8 2,489 3 2023 4 1,107 4 1,142 1 2024 2 237 2 245 1 2025 4 1,002 4 1,034 1 6 2,478 6 2,489 3 Total 24 7,566 24 7,399 9 since publication of the proposed rule. TABLE 10—ESTIMATED TAKE BY LEVEL B HARASSMENT (GREATEST ANNUAL TAKE EXPECTED), BY SPECIES AND STOCK IN COMPARISON TO STOCK ABUNDANCE Stock abundance Species Stock Humpback Whale ............................................ Bottlenose Dolphin .......................................... Gulf of Maine .................................................. WNA Coastal, Northern Migratory a ............... WNA Coastal, Southern Migratory a .............. NNCES c ......................................................... Gulf of Maine/Bay of Fundy ........................... Western North Atlantic ................................... Western North Atlantic ................................... Harbor Porpoise .............................................. Harbor Seal ..................................................... Gray Seal ........................................................ b 12,312 6,639 3,751 823 95,543 75,834 d 27,131 Level B harassment take 8 1,353 1,353 36 e8 e 2,489 3 Percent of stock 0.6 20.4 36.1 4.4 0.008 e 3.3 0.01 a Take estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow same probability of presence in the project area. Please see the Small Numbers section for additional information. b West Indies DPS. c Assumes multiple repeated takes of same individuals from small portion of each stock as well as repeated takes of Chesapeake Bay resident population (size unknown). Please see the Small Numbers section for additional information. d This stock abundance estimate includes only the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the population, is estimated to be approximately 451,431 animals. e Updated since publication of the proposed rule. khammond on DSKJM1Z7X2PROD with RULES Mitigation Measures Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as E:\FR\FM\06MYR1.SGM 06MYR1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations well as subsistence uses where applicable, we carefully consider two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and; (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. In addition to the measures described later in this section, the Navy will employ the following mitigation measures: • For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions; • The Navy will conduct briefings between construction supervisors and crews and the marine mammal monitoring team prior to the start of all pile driving activity and when new personnel join the work, to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures; • For those marine mammals for which Level B harassment take has not been requested, in-water pile installation/removal will shut down immediately if such species are observed within or entering the Level B harassment zone; and • If take reaches the authorized limit for an authorized species, pile installation/removal will shut down immediately if these species approach the Level B harassment zone to avoid additional take. The following mitigation measures apply to the Navy’s in-water construction activities. Establishment of Shutdown Zones— The Navy will establish shutdown zones for all pile driving and removal activities. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones will vary based on the activity type and marine mammal hearing group (Table 11). Protected Species Observers (PSOs)— The placement of PSOs during all pile driving and removal activities (described in the Monitoring and Reporting section) will ensure that the entire shutdown zone is visible during pile driving and removal. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), pile driving and removal must be delayed until the PSO is confident marine mammals within the shutdown zone could be detected. Monitoring for Level B Harassment— The Navy will monitor the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory pile driving) to the extent practicable, and the Level A harassment zones. The Navy will monitor at least a portion of the Level B harassment zone on all pile driving days. Monitoring zones provide utility for observing by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring zones enable observers to be aware of and communicate the presence of marine mammals in the project area outside the shutdown zone and thus prepare for a potential cessation of 24351 activity should the animal enter the shutdown zone. Pre-activity Monitoring—Prior to the start of daily in-water construction activity, or whenever a break in pile driving/removal of 30 minutes or longer occurs, PSOs will observe the shutdown and monitoring zones for a period of 30 minutes. The shutdown zone will be considered cleared when a marine mammal has not been observed within the zone for that 30-minute period. If a marine mammal is observed within the shutdown zone, a soft-start cannot proceed until the animal has left the zone or has not been observed for 15 minutes. When a marine mammal for which Level B harassment take is authorized is present in the Level B harassment zone, activities may begin and Level B harassment take will be recorded. If the entire Level B harassment zone is not visible at the start of construction, pile driving activities can begin. If work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones will commence. A determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye). Soft Start—Soft-start procedures are believed to provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. For impact pile driving, contractors will be required to provide an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period. This procedure will be conducted three times before impact pile driving begins. Soft start will be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer. The Navy does not plan to use a pile driving energy attenuator during construction. TABLE 11—SHUTDOWN ZONES DURING PILE INSTALLATION AND REMOVAL Shutdown zone Site Pile size and type khammond on DSKJM1Z7X2PROD with RULES LF cetacean Pier 3 ................................................................. Pier 12 ............................................................... MWR Marina ...................................................... Craney Island .................................................... Lambert’s Point .................................................. 16-in 16-in 24-in 16-in 24-in 16-in 16-in 16-in Pier 3 ................................................................. 16-in Composite/12-in Timber .......................... V-Area ................................................................ VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 Composite ................................................ Composite ................................................ Concrete .................................................. Composite ................................................ Concrete .................................................. Composite ................................................ Composite ................................................ Composite ................................................ PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 MF cetacean I HF cetacean I 20 20 55 20 55 20 20 20 10m 10m E:\FR\FM\06MYR1.SGM 06MYR1 Phocid 24352 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations TABLE 11—SHUTDOWN ZONES DURING PILE INSTALLATION AND REMOVAL—Continued Shutdown zone Site Pile size and type LF cetacean Pier 12 MWR Marina V-Area Craney Island Lambert’s Point 16-in Composite/12-in Timber khammond on DSKJM1Z7X2PROD with RULES Based on our evaluation of the Navy’s planned measures, as well as other measures considered by NMFS, NMFS has determined that the required mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring and Reporting In order to issue an LOA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. NMFS’ MMPA implementing regulations further describe the information that an applicant should provide when requesting an authorization (50 CFR 216.104 (a)(13)), including the means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on populations of marine mammals. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (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 marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors; • How anticipated responses to stressors impact either: (1) Long-term VerDate Sep<11>2014 I MF cetacean 18:07 May 05, 2021 Jkt 253001 Visual Monitoring Marine mammal monitoring during pile driving and removal must be conducted by PSOs meeting NMFS’ standards and in a manner consistent with the following: • Independent PSOs (i.e., not construction personnel) who have no other assigned tasks during monitoring periods must be used; • At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; • Other PSOs may substitute education (degree in biological science or related field) or training for experience; and • Where a team of three or more PSOs is required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience working as a marine mammal observer during construction. PSOs must have the following additional qualifications: • Ability to conduct field observations and collect data according to assigned protocols; • Experience or training in the field identification of marine mammals, 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 prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction Frm 00050 Fmt 4700 Phocid 10m fitness and survival of individual marine mammals; or (2) populations, species, or stocks; • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and • Mitigation and monitoring effectiveness. The Navy will submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of the start of construction. PO 00000 I HF cetacean I Sfmt 4700 activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); 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. At least three PSOs must be used during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs during vibratory pile driving at Lambert’s Point, as recommended by the Commission in its comments on the proposed rule. For all other pile driving activities, a minimum of two PSOs will be used, as stated in the proposed rule (85 FR 83001; December 21, 2020). Depending on available resources, and depending on the size of the zone associated with the activity, additional PSOs may be utilized as necessary. PSOs will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures. (See Figure 13–1 of the Navy’s application for example representative monitoring locations.) Monitoring will be conducted 30 minutes before, during, and 30 minutes after pile driving activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven or removed. 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 30 minutes. Acoustic Monitoring Since publication of the proposed rule, the Navy has determined that SSV may not be feasible given budget constraints associated with the individual, small-scale projects planned. However, subject to funding availability, the Navy may conduct a SSV study for pile types other than timber piles (prioritizing composite pile types) and would follow accepted methodological standards to achieve E:\FR\FM\06MYR1.SGM 06MYR1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations their objectives. The Navy would submit an acoustic monitoring plan to NMFS for approval prior to implementation of the plan. Upon review of the Navy’s SSV results, NMFS may update the Level A and Level B harassment zone sizes and the associated shutdown zones, as appropriate. khammond on DSKJM1Z7X2PROD with RULES Reporting The Navy will submit a draft report to NMFS within 45 workdays of the completion of required monitoring for each MPU project. The report will detail the monitoring protocol and summarize the data recorded during monitoring. Specifically, the report must include: • Dates and times (begin and end) of all marine mammal monitoring; • Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (i.e., impact or vibratory); • Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance); • The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting; • Age and sex class, if possible, of all marine mammals observed; • PSO locations during marine mammal monitoring; • Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting); • Description of any marine mammal behavior patterns during observation, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active; • Number of marine mammals detected within the harassment zones, by species; • Detailed information about any implementation of any mitigation triggered (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting behavior of the animal, if any; • Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals; and VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 • Estimated percentage of the Level B harassment zone that was not visible. If no comments are received from NMFS within 30 days, the draft report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources (OPR) (301–427–8401), NMFS and to the Greater Atlantic Region New England/ Mid-Atlantic Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the authorization. The Navy must not resume their activities until notified by NMFS. The report must include the following information: i. Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); ii. Species identification (if known) or description of the animal(s) involved; iii. Condition of the animal(s) (including carcass condition if the animal is dead); iv. Observed behaviors of the animal(s), if alive; v. If available, photographs or video footage of the animal(s); and vi. General circumstances under which the animal was discovered. Negligible Impact Analysis and Determination NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 24353 duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). To avoid repetition, this introductory discussion of our analyses applies to all of the species listed in Table 1, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below. Pile driving activities associated with the project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment from underwater sounds generated by pile driving. Potential takes could occur if marine mammals are present in zones ensonified above the thresholds for Level B harassment, identified above, while activities are underway. No serious injury or mortality would be expected even in the absence of the required mitigation measures. For all species other than humpback whale, no Level A harassment is anticipated given the nature of the activities. For humpback whale, no Level A harassment is anticipated due to the required mitigation measures, which we expect the Navy will be able to effectively implement given the small Level A harassment zone sizes and high visibility of humpback whales. The Navy’s planned pile driving activities and associated impacts will occur within a limited portion of the confluence of the Chesapeake Bay area. Localized noise exposures produced by project activities may cause short-term behavioral modifications in affected cetaceans and pinnipeds. However, as described previously, the mitigation and monitoring measures are expected to E:\FR\FM\06MYR1.SGM 06MYR1 khammond on DSKJM1Z7X2PROD with RULES 24354 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations further reduce the likelihood of injury as well as reduce behavioral disturbances. 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). Individual animals, even if taken multiple times, will most likely 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 along both Atlantic and Pacific coasts, which have taken place with no known long-term adverse consequences from behavioral harassment. Furthermore, many projects similar to this one are also believed to result in multiple takes of individual animals without any documented longterm adverse effects. Level B harassment will be minimized through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring, particularly as the project is located on a busy waterfront with high amounts of vessel traffic. As described in the proposed rule (85 FR 83001; December 21, 2020), Unusual Mortality Events (UMEs) have been declared for Northeast pinnipeds (including harbor seal and gray seal) and Atlantic humpback whales. However, we do not expect takes that may be authorized under this rule to exacerbate or compound upon these ongoing UMEs. As noted previously, no injury, serious injury, or mortality is expected or will be authorized, and Level B harassment takes of humpback whale, harbor seal and gray seal will be reduced to the level of least practicable adverse impact through the incorporation of the required mitigation measures. For the WNA stock of gray seal, the estimated stock abundance is 451,431 animals, including the Canadian portion of the stock (estimated 27,131 animals in the U.S. portion of the stock). Given that only 1 to 3 takes by Level B harassment may be authorized for this stock annually, we do not expect this authorization to exacerbate or compound upon the ongoing UME. With regard to humpback whales, despite the UME, the relevant VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 population of humpback whales (the West Indies breeding population, or distinct population segment (DPS)) remains healthy. Prior to 2016, humpback whales were listed under the ESA as an endangered species worldwide. Following a 2015 global status review (Bettridge et al. 2015), NMFS established 14 DPSs with different listing statuses (81 FR 62259; September 8, 2016) pursuant to the ESA. The West Indies DPS, which consists of the whales whose breeding range includes the Atlantic margin of the Antilles from Cuba to northern Venezuela, and whose feeding range primarily includes the Gulf of Maine, eastern Canada, and western Greenland, was delisted. The status review identified harmful algal blooms, vessel collisions, and fishing gear entanglements as relevant threats for this DPS, but noted that all other threats are considered likely to have no or minor impact on population size or the growth rate of this DPS (Bettridge et al. 2015). As described in Bettridge et al. (2015), the West Indies DPS has a substantial population size (i.e., 12,312 (95% CI 8,688–15,954) whales in 2004– 05 (Bettridge et al. 2003)), and appears to be experiencing consistent growth. Further, NMFS will authorize no more than eight takes by Level B harassment annually of humpback whale. For the WNA stock of harbor seals, the estimated abundance is 75,834 individuals. The estimated M/SI for this stock (350) is well below the PBR (2,006). As such, the Level B harassment takes of harbor seal that may be authorized are not expected to exacerbate or compound upon the ongoing UMEs. The project is also not expected to have significant adverse effects on affected marine mammals’ habitats. The project activities will not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals’ foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected (with no known particular importance to marine mammals), the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 or stock through effects on annual rates of recruitment or survival: • No mortality or serious injury is anticipated or will be authorized; • No Level A harassment take is anticipated or will be authorized; • The intensity of anticipated takes by Level B harassment is relatively low for all stocks; • The number of anticipated takes is very low for humpback whale, harbor porpoise, and gray seal; • The specified activity and associated ensonifed areas are very small relative to the overall habitat ranges of all species and do not include habitat areas of special significance (Biologically Important Areas or ESAdesignated critical habitat); • The lack of anticipated significant or long-term negative effects to marine mammal habitat; and • The presumed efficacy of the mitigation measures in reducing the effects of the specified activity. 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, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. The instances of take of humpback whale, harbor porpoise, harbor seal, and gray seal which NMFS expects to authorize, comprises less than one-third of the best available stock abundance (Table 10). The number of animals that we expect to authorize to be taken from these stocks would be considered small relative to the relevant stock’s E:\FR\FM\06MYR1.SGM 06MYR1 khammond on DSKJM1Z7X2PROD with RULES Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations abundances even if each estimated taking occurred to a new individual, which is an unlikely scenario. Three bottlenose dolphin stocks could occur in the project area: WNA Coastal Northern Migratory, WNA Coastal Southern Migratory, and NNCES stocks. Therefore, the estimated takes of bottlenose dolphin by Level B harassment would likely be portioned among these stocks. Based on the stocks’ respective occurrence in the area, NMFS estimated that there would be 100 takes from the NNCES stock over the five-year period (no more than 36 in one year), with the remaining takes evenly split between the northern and southern migratory coastal stocks. Based on consideration of various factors described below, we have determined the numbers of individuals taken would likely comprise less than one-third of the best available population abundance estimate of either coastal migratory stock. Both the WNA Coastal Northern Migratory and WNA Coastal Southern Migratory stocks have expansive ranges, and they are the only dolphin stocks thought to make broad-scale, seasonal migrations in coastal waters of the western North Atlantic. Given the large ranges associated with these stocks it is unlikely that large segments of either stock would approach the project area and enter into the Chesapeake Bay. The majority of both stocks are likely to be found widely dispersed across their respective habitat ranges and unlikely to be concentrated in or near the Chesapeake Bay. Furthermore, the Chesapeake Bay and nearby offshore waters represent the boundaries of the ranges of each of the two coastal stocks during migration. The WNA Coastal Northern Migratory stock occurs during warm water months from coastal Virginia, including the Chesapeake Bay and Long Island, New York. The stock migrates south in late summer and fall. During cold-water months, dolphins may occur in coastal waters from Cape Lookout, North Carolina, to the North Carolina/Virginia. During January–March, the WNA Coastal Southern Migratory stock appears to move as far south as northern Florida. From April to June, the stock moves back north to North Carolina. During the warm water months of July– August, the stock is presumed to occupy coastal waters north of Cape Lookout, North Carolina, to Assateague, Virginia, including the Chesapeake Bay. There is likely some overlap between the northern and southern migratory stocks during spring and fall migrations, but the extent of overlap is unknown. VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 The Chesapeake Bay and waters offshore of its mouth are located on the periphery of the migratory ranges of both coastal stocks (although during different seasons). Additionally, each of the migratory coastal stocks are likely to be located in the vicinity of the Chesapeake Bay for relatively short timeframes. Given the limited number of animals from each migratory coastal stock likely to be found at the seasonal migratory boundaries of their respective ranges, in combination with the short time periods (∼two months) animals might remain at these boundaries, it is reasonable to assume that takes are likely to occur to only a small portion of either of the migratory coastal stocks. Both migratory coastal stocks likely overlap with the NNCES stock at various times during their seasonal migrations. The NNCES stock is defined as animals that primarily occupy waters of the Pamlico Sound estuarine system (which also includes Core, Roanoke, and Albemarle sounds, and the Neuse River) during warm water months (July– August). Animals from this stock also use coastal waters (≤1 km from shore) of North Carolina from Beaufort north to Virginia Beach, Virginia, including the lower Chesapeake Bay. Comparison of dolphin photo-identification data confirmed that limited numbers of individual dolphins observed in Roanoke Sound have also been sighted in the Chesapeake Bay (Young, 2018). Like the migratory coastal dolphin stocks, the NNCES stock covers a large range. The spatial extent of most small and resident bottlenose dolphin populations is on the order of 500 km2, while the NNCES stock occupies over 8,000 km2 (LeBrecque et al. 2015). Given this large range, it is again unlikely that a preponderance of animals from the NNCES stock would depart the North Carolina estuarine system and travel to the northern extent of the stock’s range. However, recent evidence suggests that there is likely a small resident community of NNCES dolphins of indeterminate size that inhabits the Chesapeake Bay year-round (E. Patterson, NMFS, pers. comm.). Many of the dolphin observations in the Chesapeake Bay are likely repeated sightings of the same individuals. The Potomac-Chesapeake Dolphin Project has observed over 1,200 unique animals since observations began in 2015. Resightings of the same individual can be highly variable. Some dolphins are observed once per year, while others are highly regular with greater than 10 sightings per year (J. Mann, PotomacChesapeake Dolphin Project, pers. comm.). Similarly, using available photo-identification data, Engelhaupt et PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 24355 al. (2016) determined that specific individuals were often observed in close proximity to their original sighting locations and were observed multiple times in the same season or same year. Ninety-one percent of re-sighted individuals (100 of 110) in the study area were recorded less than 30 km from the initial sighting location. Multiple sightings of the same individual would considerably reduce the number of individual animals that are taken by Level B harassment. Furthermore, the existence of a resident dolphin population in the Bay would increase the percentage of dolphin takes that are actually re-sightings of the same individuals. In summary and as described above, the following factors primarily support our determination regarding the incidental take of small numbers of the affected stocks of bottlenose dolphin: • Potential bottlenose dolphin takes in the project area are likely to be allocated among three distinct stocks; • Bottlenose dolphin stocks in the project area have extensive ranges and it would be unlikely to find a high percentage of any one stock concentrated in a relatively small area such as the project area or the Chesapeake Bay; • The Chesapeake Bay represents the migratory boundary for each of the specified dolphin stocks and it would be unlikely to find a high percentage of any stock concentrated at such boundaries; and • Many of the takes would likely be repeats of the same animals and likely from a resident population of the Chesapeake Bay. Based on the analysis contained herein of the planned activity (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. Adaptive Management The regulations governing the take of marine mammals incidental to Navy maintenance construction activities E:\FR\FM\06MYR1.SGM 06MYR1 24356 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations contain an adaptive management component. The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from completed projects to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable. The following are some of the possible sources of applicable data to be 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. khammond on DSKJM1Z7X2PROD with RULES Endangered Species Act Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of incidental take authorizations, NMFS consults internally whenever we propose to authorize take for endangered or threatened species. No incidental take of ESA-listed species is expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action. National Environmental Policy Act To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216–6A, NMFS must evaluate our proposed action (i.e., the promulgation of regulations and subsequent issuance of incidental take authorization) and alternatives with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 Categorical Exclusion B4 of the Companion Manual for NAO 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that this action qualifies to be categorically excluded from further NEPA review. Classification Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this final 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 has certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. The U.S. Navy is the sole entity that would be subject to the requirements in these regulations, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. No comments were received regarding this certification. As a result, a regulatory flexibility analysis is not required and none has been prepared. This rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency. 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 PRA unless that collection of information displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648– 0151 and include applications for regulations, subsequent LOAs, and reports. List of Subjects in 50 CFR Part 218 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 Dated: April 30, 2021. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set forth in the preamble, 50 CFR part 218 is amended as follows: PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 218 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. 2. Add subpart A to part 218 to read as follows: ■ Subpart A—Taking and Importing Marine Mammals Incidental to U.S. Navy Construction at Naval Station Norfolk in Norfolk, Virginia Sec. 218.1 Specified activity and geographical region. 218.2 Effective dates. 218.3 Permissible methods of taking. 218.4 Prohibitions. 218.5 Mitigation requirements. 218.6 Requirements for monitoring and reporting. 218.7 Letters of Authorization. 218.8 Renewals and modifications of Letters of Authorization. 218.9 [Reserved] Subpart A—Taking and Importing Marine Mammals Incidental to U.S. Navy Construction at Naval Station Norfolk in Norfolk, Virginia § 218.1 Specified activity and geographical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction activities including marine structure maintenance, pile replacement, and select waterfront improvements at Naval Station (NAVSTA) Norfolk. (b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at NAVSTA Norfolk and adjacent Navy facilities. § 218.2 Effective dates. Regulations in this subpart are effective from June 7, 2021 to June 7, 2026. § 218.3 Permissible methods of taking. Under an LOA issued pursuant to §§ 216.106 of this chapter and 218.7, the Holder of the LOA (hereinafter ‘‘Navy’’) E:\FR\FM\06MYR1.SGM 06MYR1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations may incidentally, but not intentionally, take marine mammals within the area described in § 218.1(b) by Level B harassment associated with construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA. § 218.4 Prohibitions. (a) Except for the takings contemplated in § 218.3 and authorized by a LOA issued under §§ 216.106 of this chapter and 218.7, it is unlawful for any person to do any of the following in connection with the activities described in § 218.1 may: (1) 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 § 218.7; (2) Take any marine mammal not specified in such LOA; (3) Take any marine mammal specified in such LOA in any manner other than as specified; (4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or (5) Take a marine mammal specified in such LOA 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. (b) [Reserved] khammond on DSKJM1Z7X2PROD with RULES § 218.5 Mitigation requirements. (a) When conducting the activities identified in § 218.20(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.7 must be implemented. These mitigation measures shall include but are not limited to: (1) A copy of any issued LOA must be in the possession of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA; (2) The Navy shall conduct briefings for construction supervisors and crews, the 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, the marine mammal monitoring protocol, and operational procedures; (3) For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 m, the Navy shall cease operations and reduce vessel speed to the minimum level required to maintain steerage and safe working conditions; VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 (4) For all pile driving activity, the Navy shall implement a minimum shutdown zone of a 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease; (5) For all pile driving activity, the Navy shall implement shutdown zones with radial distances as identified in a LOA issued under §§ 216.106 of this chapter and 218.7. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease; (6) The Navy shall deploy protected species observers (observers) as indicated in its Marine Mammal Monitoring Plan approved by NMFS; (7) A minimum of three PSOs shall be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/ delay procedures during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs must be stationed at the best vantage points practicable during vibratory pile driving at Lambert’s Point. For all other pile driving activities, a minimum of two observers shall be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/delay procedures; (8) Monitoring shall take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-activity monitoring shall be conducted for 30 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. If a marine mammal is observed within the shutdown zone, a soft-start cannot proceed until the animal has left the zone or has not been observed for 15 minutes. Monitoring shall occur throughout the time required to drive a pile. If work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones must commence. A determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye); (9) 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 PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 24357 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; (10) Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone; (11) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Navy shall delay pile driving and removal until observers are confident marine mammals within the shutdown zone could be detected; (12) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Navy shall adhere to the following additional observer qualifications: (i) Independent observers are required; (ii) At least one observer must have prior experience working as an observer; (iii) Other observers may substitute education (degree in biological science or related field) or training for experience; (iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; (v) Personnel who are engaged in construction activities may not serve as observers. (13) The Navy shall use soft start techniques for impact pile driving. Soft start for impact drivers requires the Navy and those persons it authorizes or funds to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced energy three-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. (b) [Reserved] E:\FR\FM\06MYR1.SGM 06MYR1 24358 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES § 218.6 Requirements for monitoring and reporting. (a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. (b) The Navy shall deploy at least three PSOs during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs during vibratory pile driving at Lambert’s Point. For all other pile driving activities, the Navy shall deploy a minimum of two PSOs. (c) Observers shall be trained in marine mammal identification and behaviors. Observers shall have no other construction-related tasks while conducting monitoring. (d) For all pile driving activities, a minimum of two observers shall be stationed at the active pile driving site or in reasonable proximity in order to monitor the shutdown zone. (e) The Navy shall monitor the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory pile driving) to the extent practicable and the shutdown zones. The Navy shall monitor at least a portion of the Level B harassment zone on all pile driving days. (f) The Navy shall submit a draft monitoring report to NMFS within 45 work days of the completion of required monitoring for each marine structure maintenance, pile replacement, and upgrades project. The report must detail the monitoring protocol and summarize the data recorded during monitoring. If no comments are received from NMFS within 30 days, the draft report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. Specifically, the report must include: (1) Dates and times (begin and end) of all marine mammal monitoring; (2) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (i.e., impact or vibratory); (3) Environmental conditions during monitoring periods (at beginning and end of observer shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance); (4) The number of marine mammals observed, by species, relative to the pile location and if pile driving or removal was occurring at time of sighting; VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 (5) Age and sex class, if possible, of all marine mammals observed; (6) Observer locations during marine mammal monitoring; (7) Distances and bearings of each marine mammal observed to the pile being driven or removed for each sighting (if pile driving or removal was occurring at time of sighting); (8) Description of any marine mammal behavior patterns during observation, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active; (9) Number of marine mammals detected within the harassment zones, by species; (10) Detailed information about any implementation of any mitigation triggered (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting behavior of the animal, if any; (11) Description of attempts to distinguish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals; and (12) Estimated percentage of the Level B harassment zone that was not visible. (g) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources (OPR) (301–427–8401), NMFS and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the authorization. The Navy must not resume their activities until notified by NMFS. (1) The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (ii) Species identification (if known) or description of the animal(s) involved; (iii) Condition of the animal(s) (including carcass condition if the animal is dead); (iv) Observed behaviors of the animal(s), if alive; (v) If available, photographs or video footage of the animal(s); and (vi) General circumstances under which the animal was discovered. PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 (2) [Reserved] § 218.7 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA. (b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 218.8. (e) The LOA shall set forth the following information: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA 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 an LOA shall be published in the Federal Register within 30 days of a determination. § 218.8 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.7 for the activity identified in § 218.1(a) 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, and (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a E:\FR\FM\06MYR1.SGM 06MYR1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under § 216.106 of this chapter and § 218.7 for the activity identified in § 218.1(a) may be modified by NMFS under the following circumstances: (1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the 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; and (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) 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 § 218.7, a LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action. § 218.9 [Reserved] [FR Doc. 2021–09512 Filed 5–5–21; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration khammond on DSKJM1Z7X2PROD with RULES 50 CFR Part 635 [Docket No. 180117042–8884–02; RTID 0648–XB001] Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries National Marine Fisheries Service (NMFS), National Oceanic and AGENCY: VerDate Sep<11>2014 16:26 May 05, 2021 Jkt 253001 Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule, closure. NMFS closes the Angling category Gulf of Mexico area incidental trophy fishery for large medium and giant (‘‘trophy’’ (i.e., measuring 73 inches (185 cm) curved fork length or greater)) Atlantic bluefin tuna (BFT). This action is being taken to prevent further overharvest of the Angling category Gulf of Mexico incidental trophy BFT subquota. SUMMARY: Effective 11:30 p.m., local time, May 4, 2021, through December 31, 2021. DATES: FOR FURTHER INFORMATION CONTACT: Larry Redd, Jr., larry.redd@noaa.gov, 301–427–8503, Nicholas Velseboer, nicholas.velseboer@noaa.gov, 978–675– 2168, or Lauren Latchford, lauren.latchford@noaa.gov, 301–427– 8503. Atlantic highly migratory species (HMS) fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic HMS FMP and its amendments. NMFS is required under the MSA to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA. Under § 635.28(a)(1), NMFS publishes a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on or after the effective date and time of a closure notice for that category, for the remainder of the fishing year, until the opening of the relevant subsequent quota period or until such date as specified. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 24359 Angling Category Large Medium and Giant Gulf of Mexico ‘‘Trophy’’ Fishery Closure The 2021 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2021. The Angling category season opened January 1, 2021, and continues through December 31, 2021. The current Angling category quota is 232.4 metric tons (mt), of which 5.3 mt is allocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 1.8 mt allocated for each of the following areas: North of 39°18’ N. lat. (off Great Egg Inlet, NJ); south of 39°18’ N. lat. and outside the Gulf of Mexico (the ‘‘southern area’’); and in the Gulf of Mexico. Per § 635.27(a)(2)(iii), the Gulf of Mexico region includes all waters of the U.S. exclusive economic zone (EEZ) west and north of the boundary stipulated at § 600.105(c). Trophy BFT measure 73 inches (185 cm) curved fork length or greater. Based on reported landings from the NMFS Automated Catch Reporting System, NMFS has determined that the codified Angling category Gulf of Mexico trophy BFT subquota of 1.8 mt has been reached and exceeded and that a closure of the Gulf of Mexico incidental trophy BFT fishery is warranted. Therefore, retaining, possessing, or landing large medium or giant BFT in the Gulf of Mexico by persons aboard HMS Angling category and the HMS Charter/Headboat permitted vessels (when fishing recreationally) must cease at 11:30 p.m. local time on May 4, 2021. This closure will remain effective through December 31, 2021. This action is intended to prevent further overharvest of the Angling category Gulf of Mexico incidental trophy BFT subquota, and is taken consistent with the regulations at § 635.28(a)(1). NMFS previously closed the 2021 trophy BFT fishery in the southern area on March 1, 2021 (86 FR 12548, March 4, 2021). If needed, subsequent Angling category adjustments will be published in the Federal Register. Information regarding the Angling category fishery for Atlantic tunas, including daily retention limits for BFT measuring 27 inches (68.5 cm) to less than 73 inches and any further Angling category adjustments, is available at hmspermits.noaa.gov or by calling (978) 281–9260. HMS Angling category and HMS Charter/Headboat permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release E:\FR\FM\06MYR1.SGM 06MYR1

Agencies

[Federal Register Volume 86, Number 86 (Thursday, May 6, 2021)]
[Rules and Regulations]
[Pages 24340-24359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09512]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 210421-0084]
RIN 0648-BJ90

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Construction at Naval
Station Norfolk in Norfolk, Virginia

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

ACTION: Final rule.

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SUMMARY: NMFS, upon request of the U.S. Navy (Navy), hereby issues
regulations to govern the unintentional taking of marine mammals
incidental to construction activities including marine structure
maintenance, pile replacement, and select waterfront improvements at
Naval Station Norfolk (NAVSTA Norfolk) over the course of five years
(2021-2026). These regulations, which allow for the issuance of a
Letter 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, as well as requirements pertaining to the monitoring and
reporting of such taking.

DATES: Effective from June 7, 2021 to June 7, 2026.

ADDRESSES: A copy of the Navy's application and supporting documents,
as well as a list of the references cited in this document, may be
obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-norfolk-norfolk-virginia. In case of problems accessing these documents, please call
the contact listed below.

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

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

We received an application from the Navy requesting five-year
regulations and authorization to take multiple species of marine
mammals. This rule establishes a framework under the authority of the
MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take by
Level B harassment of marine mammals incidental to the Navy's
construction activities, including impact and vibratory pile driving.
Please see Background below for definitions of harassment.

Legal Authority for the Action

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to 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 and other means of

[[Page 24341]]

effecting the ``least practicable adverse impact'' on the affected
species or stocks and their habitat (see the discussion below in the
Mitigation Measures section), 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 construction activities. These measures include:
Required monitoring of the 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; and
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

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

Summary of Request

In February 2020, NMFS received a request from the Navy for an LOA
to take marine mammals incidental to construction activities including
marine structure maintenance, pile replacement, and select waterfront
improvements at NAVSTA Norfolk. NMFS reviewed the Navy's application,
and the Navy provided an updated version addressing NMFS' questions and
comments on May 22, 2020. The application was deemed adequate and
complete and published for public review and comment on June 9, 2020
(85 FR 35267). We did not receive substantive comments on the notice of
the receipt of the Navy's application. We subsequently published a
proposed rule in the Federal Register on December 21, 2020 (85 FR
83001). Comments received during the public comment period on the
proposed regulations are addressed in the Comments and Responses
section of this final rule.
The Navy plans to conduct construction activities at NAVSTA Norfolk
and nearby facilities off the lower Chesapeake Bay. Among other
activities, the planned project will include both vibratory pile
driving and removal, and impact pile driving. The use of both vibratory
and impact pile driving is expected to produce underwater sound at
levels that have the potential to result in harassment of marine
mammals. The Navy requested authorization to take a small number of
five species of marine mammals by Level B harassment only. Neither the
Navy nor NMFS expect serious injury or mortality to result from this
activity. The regulations are valid for five years (2021-2026).

Description of the Specified Activity

The Navy is proposing to conduct construction activities at NAVSTA
Norfolk on the Naval Station, and at nearby facilities off the lower
Chesapeake Bay. The Navy's planned activities include pile replacement
at the Morale, Welfare and Recreation Marina, and installation of two
new floating docks at the V-area. Both areas are located on the Naval
Station. The Navy also proposes to conduct maintenance/repair
activities at the Naval Station and neighboring Defense Fuel Supply
Point Craney Island and Lambert's Point Deperming Station (see Figure 1
of the proposed rule; 85 FR 83001; December 21, 2020). The Navy has
indicated specific projects where existing needs have been identified,
as well as estimates for expected emergent or emergency repairs. The
planned project will include both vibratory pile driving and removal,
and impact pile driving (hereafter, collectively referred to as ``pile
driving'') over approximately 574 days over five years (2021-2026),
with the greatest amount of work occurring during Year 1 (approximately
208 days). The Navy plans to conduct all work during daylight hours.
A detailed description of the planned construction project is
provided in the proposed rule (85 FR 83001; December 21, 2020). Since
that time, no changes have been made to the planned activities.
Therefore, a detailed description is not provided here. Please refer to
the proposed rule for the description of the specific activity.

Comments and Responses

We published a proposed rule in the Federal Register on December
21, 2020 (85 FR 83001). During the 30-day comment period, we received a
letter from the Marine Mammal Commission (Commission), and a comment
from the general public. Summaries of all substantive comments, and our
responses to these comments, are provided here. Please see the comment
letter, available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-norfolk-norfolk-virginia, for full detail regarding the comments
received.
Comment 1: The Commission recommended that NMFS re-estimate the
numbers of Level B harassment takes of harbor seals based on up to 21
rather than 14 seals potentially being taken on the various days of
proposed activities.
Response: In the proposed rule, NMFS calculated takes based on
haulout data from the CBBT (14 Level B harassment takes per day. See
the Estimated Take section of the proposed rule; 85 FR 83001; December
21, 2020). The CBBT is approximately 19 km (kilometers; 12 miles (mi))
from the project site, and the ES haulout is approximately 48 km (30
mi) from the project site. While some seals tagged at ES haulouts
entered the Chesapeake Bay (Ampela et al. 2019), even if a seal enters
the Chesapeake Bay, it does not necessarily enter the project area. The
Level B harassment zones are <50 m for all impact pile driving, and
given the shoreline, Level B harassment zones during vibratory pile
driving would be truncated in many directions. Additionally, some seals
move between the CBBT and ES haulout sites (Jones et al. 2018);
therefore, including seals from

[[Page 24342]]

both haulouts could result in double counting of the same animals.
Further, the nearby HRBT project began pile installation in September,
and no seals have been sighted during five months of construction under
the project's Marine Mammal Monitoring and Mitigation Program.
Therefore, the best available information indicates that the take
estimate included in the proposed rule is already conservative, and it
is not appropriate to increase the take estimate as suggested by the
Commission. Therefore, NMFS does not concur with the Commission's
recommendation and does not adopt it.
Comment 2: The Commission recommended that NMFS require the Navy to
(1) conduct sound source and sound propagation measurements of
vibratory and impact installation of at least 10 high-density
polyethylene (HDPE), 10 hollow-core fiberglass, and 3 concrete piles
using near-field and far-field hydrophones placed mid-water column and
(2) include certain specific elements in its hydroacoustic monitoring
report.
The Commission also recommended that NMFS require the Navy to
increase the sizes of the shut-down zones and Level B harassment zones
if the measured data indicate that the model-estimated zones were
underestimated.
Response: Since publication of the proposed rule, the Navy has
determined that sound source verification (SSV) may not be feasible
given budget constraints associated with the individual, small-scale
projects planned. Therefore, NMFS did not adopt the Commission's
recommendation to require sound source and sound propagation
measurements for the number of piles it indicated, and NMFS has removed
the SSV requirement from this final rule. However, subject to funding
availability, the Navy may conduct a SSV study for pile types other
than timber piles (prioritizing composite pile types). As noted in the
proposed rule, composite piles may be either HDPE or hollow-core
fiberglass; the Navy will not necessarily install both types.
If funding is available for a SSV study, the Navy will develop an
acoustic monitoring plan. The acoustic monitoring plan would follow
accepted methodologies regarding source level measurements and
propagation measurements. NMFS generally agrees with the elements that
the Commission has suggested that the Navy report, though the exact
reporting requirements would be outlined in an acoustic monitoring
plan, which would be available at a later date, and would be reviewed
and approved by NMFS prior to implementation.
If the Navy conducts hydroacoustic monitoring, and the results
suggest that the Level A or Level B harassment zones were
underestimated in this final rule, NMFS will work with the Navy to
update the Level A and Level B harassment zone sizes and the associated
shutdown zones, as appropriate.
Comment 3: The Commission recommends generally that NMFS require
the use of shutdown zones that encompass the extent of the associated
Level A harassment zone. Specifically, the Commission recommends that
NMFS require the Navy to implement a shutdown zone of 55 m rather than
50 m for low-frequency (LF) cetaceans during impact installation of 24-
inch (in) concrete piles.
Response: NMFS does not agree with the Commission's rationale for
this recommendation. Generally speaking, given the duration component
associated with actual occurrence of Level A harassment take, it is not
necessary to require a shutdown zone equivalent to the estimated Level
A harassment zone to avoid permanent threshold shift (PTS), i.e., Level
A harassment take. Regardless, in this case, the proposed 50 m shutdown
zone is essentially equivalent to the estimated 52 m Level A harassment
zone. Nevertheless, the Navy has agreed to implement the 55 m shutdown
zone recommended by the Commission.
Comment 4: The Commission recommended that NMFS require the Navy to
use at least three PSOs to monitor for marine mammals during vibratory
pile installation and removal at Pier 3, Pier 12, and Craney Island and
four PSOs for Lambert's Point positioned sufficiently in the far field
to monitor the largest extents of the respective Level B harassment
zones.
Response: NMFS concurs with the Commission's recommendation and has
adopted it. This final rule requires the Navy to employ at least three
PSOs during vibratory pile driving at Pier 3, Pier 12, and Craney
Island, and at least four PSOs during vibratory pile driving at
Lambert's Point, though the exact locations are not stipulated. For all
other pile driving activities, a minimum of two PSOs will be used, as
stated in the proposed rule (85 FR 83001; December 21, 2020).
Comment 5: The Commission recommended that NMFS make available to
the public for review and comment all monitoring plans, hydroacoustic
and marine mammal-related, contemporaneously with any proposed rule or
proposed incidental harassment authorization that NMFS publishes in the
Federal Register.
Response: NMFS agrees that it is important to ensure adequate
review of monitoring plans, including hydroacoustic and marine mammal-
related monitoring plans, before they are implemented by applicants.
NMFS will review the Navy's proposed marine mammal monitoring plan
prior to the start of construction, and therefore prior to the
implementation of the plan. If funding is available for a SSV study,
the Navy will develop an acoustic monitoring plan, and NMFS will review
and approve the plan prior to its implementation. It is important to
provide the objectives of proposed monitoring for review by the public.
However, as is the case here, methodological details follow widely
accepted practices and, therefore, it is unnecessary to provide these
plans for public review. To do so would necessitate development of
standalone plans at an earlier stage than is ideal or, in some cases,
possible.
While the Navy initially expected to submit a standalone marine
mammal monitoring and mitigation plan in association with the
application, it has since indicated that it is unable to do so given
restrictions on funding allocation between NEPA and associated
analyses/consultations such as this MMPA authorization and separate
construction project funding. The construction project funding must be
used for further development of site/project-specific monitoring plans
at a later stage of project development. All monitoring requirements in
the Navy's LOA application, this final rule, and any subsequent LOA(s)
will be incorporated into the construction contractor's monitoring
plan.
Comment 6: The Commission recommended that NMFS include the
requirement, which it deems standard, that the Navy conduct pile
driving and removal activities during daylight hours only either in
section 218.5 of the final rule or in any LOA issued under the final
rule.
Response: We do not concur with the Commission's recommendations,
or with their underlying justification, and did not adopt them. While
the Navy has no intention of conducting pile driving activities at
night, it is unnecessary to preclude such activity should the need
arise (e.g., on an emergency basis or to complete driving of a pile
begun during daylight hours, should the construction operator deem it
necessary to do so). Further, while acknowledging that prescribed
mitigation measures for any specific action (and an associated
determination that the prescribed

[[Page 24343]]

measures are sufficient to achieve the least practicable adverse impact
on the affected species or stocks and their habitat) are subject to
review by the Commission and the public, any determination of what
measures constitute ``standard'' mitigation requirements is NMFS' alone
to make. Even in the context of measures that NMFS considers to be
``standard'' we reserve the flexibility to deviate from such measures,
depending on the circumstances of the action. We disagree with the
statement that a prohibition on pile driving activity outside of
daylight hours would help to ensure that the Navy is effecting the
least practicable adverse impact on the affected species, and the
Commission does not justify this assertion.
The final rule includes a measure stating that ``should
environmental conditions deteriorate such that marine mammals within
the entire shutdown zone would not be visible (e.g., fog, heavy rain,
night), pile driving and removal must be delayed until observers are
confident marine mammals within the shutdown zone could be detected,''
though this need not preclude pile driving at night with sufficient
illumination.
Comment 7: The Commission recommends that NMFS revise section
218.6(g)(9) in the final rule to require the Navy to report the number
of individuals of each species detected within the Level A and B
harassment zones, and estimates of the number of marine mammals taken
by Level A and B harassment, by species.
In a related comment, the Commission recommended that, for the
final rule, NMFS include requirements in section 218.6(g) that the Navy
include in its monitoring report (1) the estimated percentages of the
Level B harassment zones that were not visible, (2) an extrapolation of
the estimated takes by Level B harassment based on the number of
observed exposures within the Level B harassment zones and the
percentages of the Level B harassment zones that were not visible
(i.e., extrapolated takes), and (3) the total number of Level B
harassment takes based on both the observed and extrapolated takes for
each species.
Response: We do not fully concur with the Commission's
recommendation and do not adopt it as stated. NMFS agrees with the
recommendation to require the Navy to report the number of individuals
of each species detected within the Level A and Level B harassment
zones. Section 218.6(g)(9) in the proposed rule stated that the Navy
must report the ``number of marine mammals detected within the
harassment zones, by species,'' which is effectively the same measure
as the Commission's recommended ``number of individuals of each species
detected within the Level A and B harassment zones.'' Therefore, NMFS
did not modify that measure. NMFS does not agree with the
recommendation to require the Navy to report estimates of the numbers
of marine mammals taken by Level A and Level B harassment. The
Commission does not explain why it believes this requirement is
necessary, nor does it provide recommendations for methods of
generating such estimates in a manner that would lead to credible
results. NMFS does not agree that the basic method described in
footnote 22 of the Commission's November 19, 2020 letter should be
expected to yield estimates of total take such that readers of the
Navy's report should have confidence that the estimates are reasonable
representations of what may have actually occurred.
NMFS does agree that the Navy should report the estimated
percentage(s) of the Level B harassment zones that were not visible,
and has included this requirement in this final rule (See section
218.6(g)(12)). These pieces of information--numbers of individuals of
each species detected within the harassment zones and the estimated
percentage(s) of the harassment zones that were not visible--may be
used to glean an approximate understanding of whether the Navy may have
exceeded the amount of take authorized. Although the Commission does
not explain its reasoning for offering these recommendations, NMFS
recognizes the basic need to understand whether an IHA-holder may have
exceeded its authorized take. The need to accomplish this basic
function of reporting does not require that NMFS require applicants to
use methods we do not have confidence in to generate estimates of
``total take'' that cannot be considered reliable.
Comment 8: The Commission recommended that NMFS reinforce that the
Navy must keep a running tally of the total Level B harassment takes,
both observed and extrapolated, for each species consistent with
section 218.5(a)(10) of the final rule.
Response: The LOA will indicate the number of takes authorized for
each species. We agree that the Navy must ensure they do not exceed
authorized takes, but do not concur with the Commission's repeated
recommendations regarding the need for NMFS to dictate how an applicant
does so, including by requiring an applicant to maintain a ``running
tally'' of takes. Regardless of the Commission's substitution of the
word ``reinforce'' for the word ``ensure,'' as compared with its prior
recommendations for other actions, compliance with the terms of an
issued LOA remains the responsibility of the LOA-holder.

Changes From Proposed to Final Regulations

As noted by the Commission in its informal comments on the proposed
rule, Table 13 in the proposed rule mistakenly indicated an estimate of
20 Level B harassment takes of harbor porpoise over the five-year
duration of this rule. NMFS corrected this take estimate to reflect 24
takes over the five-year period, as described in the Estimated Take
section of this final rule. NMFS has also adjusted the harbor seal take
estimate in this final rule to reflect estimated take of 13.6 harbor
seals per day, rather than 14 harbor seals per day included in the
proposed rule, also described further in the Estimated Take section.
Regarding mitigation, this final rule requires the Navy to
establish a 55 m shutdown zone for LF cetaceans during impact driving
of 24-in concrete piles, rather than 50 m included in the proposed
rule.
Regarding monitoring, the proposed rule stated that the Navy would
conduct SSV for composite piles; however, this final rule does not
include a requirement for the Navy to conduct SSV. Please see the
Acoustic Monitoring section for additional information. This final rule
requires the Navy to employ at least three PSOs during vibratory pile
driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs
during vibratory pile driving at Lambert's Point, though the exact
locations have not been determined. For all other pile driving
activities, a minimum of two PSOs will be used, as stated in the
proposed rule (85 FR 83001; December 21, 2020). This change is
reflected in the Monitoring and Reporting section of this final rule
and in section 218.6(b).
Regarding reporting, this final rule requires the Navy to report
the estimated percentage of the Level B harassment zone that was not
visible.

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the Navy's application summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history, of the potentially affected
species. Additional information regarding population trends and threats
may be found in NMFS's SARs (https://www.fisheries.noaa.gov/national/
marine-mammal-protection/

[[Page 24344]]

marine-mammal-stock-assessments) and more general information about
these species (e.g., physical and behavioral descriptions) may be found
on NMFS's website (https://www.fisheries.noaa.gov/find-species).
Table 1 lists all species or stocks for which take is expected and
may be authorized, and summarizes information related to the population
or stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
For taxonomy, we follow Committee on Taxonomy (2020). PBR is defined by
the MMPA as the maximum number of animals, not including natural
mortalities, that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its optimum sustainable
population (as described in NMFS's SARs). While no mortality is
anticipated, nor will mortality be authorized, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al. 2020).
All values presented in Table 1 are the most recent available at the
time of publication and are available in the 2019 SARs (Hayes et al.
2020) or the 2020 draft SARS, available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

Table 1--Marine Mammal Species Likely to Occur Near the Project Area
----------------------------------------------------------------------------------------------------------------
Stock abundance
ESA/ MMPA (CV, Nmin, most
Common name Scientific name Stock status; recent PBR Annual M/
strategic abundance SI \3\
(Y/N) \1\ survey) \2\
----------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
(rorquals):
Humpback whale.......... Megaptera Gulf of Maine.. -,-; N 1,396 (0; 22 12.15
novaeangliae. 1,380; see
SAR).
----------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
----------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Bottlenose dolphin...... Tursiops Western North -,-; Y 6,639 (0.41; 48 12.2-21.5
truncatus. Atlantic (WNA) 4,759; 2016).
Coastal,
Northern
Migratory.
WNA Coastal, -,-; Y 3,751 (0.06; 23 0-18.3
Southern 2,353; 2011).
Migratory.
Northern North -,-; Y 823 (0.06; 782; 7.8 7.2-30
Carolina 2017).
Estuarine
System (NNCES).
Family Phocoenidae
(porpoises):
Harbor porpoise......... Phocoena Gulf of Maine/ -, -; N 95,543 (0.31; 851 217
phocoena. Bay of Fundy. 74,034; 2016).
----------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
----------------------------------------------------------------------------------------------------------------
Family Phocidae (earless
seals):
Harbor seal............. Phoca vitulina. WNA............ -; N 75,834 (0.15; 2,006 350
66,884, 2012).
Gray seal................... Halichoerus WNA............ -; N 27,131 (0.19, 1,359 4,729
grypus. 23,158, 2016).
----------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-)
indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the
MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is
determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or
stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum
estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury
from all sources combined (e.g., commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI)
often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.

As indicated above, all five species (with seven managed stocks) in
Table 1 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur, and we may authorize
take. While North Atlantic right whales (Eubalaena glacialis), minke
whales (Balaenoptera acutorostrata acutorostrata), and fin whales
(Balaenoptera physalus) have been documented in the area, the temporal
and/or spatial occurrence of these whales is such that take is not
expected to occur, and they are not discussed further beyond the
explanation provided here.
Based on sighting data and passive acoustic studies, the North
Atlantic right whale could occur off Virginia year-round (DoN 2009;
Salisbury et al. 2016). They have also been reported seasonally off
Virginia during migrations in the spring, fall, and winter (CeTAP 1981,
1982; Niemeyer et al. 2008; Kahn et al. 2009; McLellan 2011b, 2013;
Mallette et al. 2016a, 2016b, 2017, 2018a; Palka et al. 2017; Cotter
2019). Right whales are known to frequent the coastal waters of the
mouth of the Chesapeake Bay (Knowlton et al. 2002) and the area is a
seasonal management area (November 1-April 30) mandating reduced ship
speeds out to approximately 20 nautical miles (37 km) for the species;
however, the project area is further inside the Bay.
North Atlantic right whales have stranded in Virginia, one each in
2001, 2002, 2004, 2005: Three during winter (February and March) and
one in summer (September) (Costidis et al. 2017, 2019). In January
2018, a dead,

[[Page 24345]]

entangled North Atlantic right whale was observed floating over 60
miles (96.6 km) offshore of Virginia Beach (Costidis et al. 2019). All
North Atlantic right whale strandings in Virginia waters have occurred
on ocean-facing beaches along Virginia Beach and the barrier islands
seaward of the lower Delmarva Peninsula (Costidis et al. 2017). Due to
the low occurrence of North Atlantic right whales in the project area,
NMFS is not authorizing take of this species.
Fin whales have been sighted off Virginia (Cetacean and Turtle
Assessment Program (CeTAP) 1981, 1982; Swingle et al. 1993; DoN 2009;
Hyrenbach et al. 2012; Barco 2013; Mallette et al. 2016a, b; Aschettino
et al. 2018; Engelhaupt et al. 2017, 2018; Cotter 2019), and in the
Chesapeake Bay (Bailey 1948; CeTAP 1981, 1982; Morgan et al. 2002;
Barco 2013; Aschettino et al. 2018); however, they are not likely to
occur in the project area. Sightings have been documented around the
Chesapeake Bay Bridge Tunnel (CBBT) during the winter months (CeTAP
1981, 1982; Barco 2013; Aschettino et al. 2018).
Eleven fin whale strandings have occurred off Virginia from 1988 to
2016 mostly during the winter months of February and March, followed by
a few in the spring and summer months (Costidis et al. 2017). Six of
the strandings occurred in the Chesapeake Bay (three on eastern shore;
three on western shore) with the remaining five occurring on the
Atlantic coast (Costidis et al. 2017). Documented strandings near the
project area have occurred: February 2012, a dead fin whale washed
ashore on Oceanview Beach in Norfolk (Swingle et al. 2013); December
2017, a live fin whale stranded on a shoal in Newport News and died at
the site (Swingle et al. 2018); February 2014, a dead fin whale
stranded on a sand bar in Pocomoke Sound near Great Fox Island,
Accomack (Swingle et al. 2015); and, March 2007, a dead fin whale near
Craney Island, in the Elizabeth River, in Norfolk (Barco 2013). Only
stranded fin whales have been documented in the project area; no free-
swimming fin whales have been observed. Due to the low occurrence of
fin whales in the project area, NMFS is not authorizing take of this
species.
Minke whales have been sighted off Virginia (CeTAP 1981, 1982;
Hyrenbach et al. 2012; Barco 2013; Mallette et al. 2016a, b; McLellan
2017; Engelhaupt et al. 2017, 2018; Cotter 2019), near the CBBT
(Aschettino et al. 2018), but sightings in the project area are from
strandings (Jensen and Silber 2004; Barco 2013; DoN 2009). In August
1994, a ship strike incident involved a minke whale in Hampton Roads
(Jensen and Silber 2004; Barco 2013). It was reported that the animal
was struck offshore and was carried inshore on the bow of a ship (DoN
2009). Twelve strandings of minke whales have occurred in Virginia
waters from 1988 to 2016 (Costidis et al. 2017). There have been six
minke whale stranding from 2017 through 2020 in Virginia waters.
Because all known minke whale occurrences in the project area are due
to strandings, NMFS is not authorizing take of this species.
A detailed description of the species likely to be affected by the
Navy's project, including brief introductions to the species and
relevant stocks as well as available information regarding population
trends and threats, and information regarding local occurrence, were
provided in the proposed rule (85 FR 83001; December 21, 2020); since
that time, we are not aware of any changes in the status of these
species and stocks, except that the Gulf of Maine humpback whale stock
has been designated as strategic in the 2020 draft SARs; therefore,
detailed descriptions are not provided here. Please refer to the
proposed rule for these descriptions (85 FR 83001; December 21, 2020).
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Marine Mammal Hearing

Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et al.
1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., LF cetaceans). Subsequently, NMFS (2018) described generalized
hearing ranges for these marine mammal hearing groups. Generalized
hearing ranges were chosen based on the approximately 65 decibel (dB)
threshold from the normalized composite audiograms, with the exception
for lower limits for LF cetaceans where the lower bound was deemed to
be biologically implausible and the lower bound from Southall et al.
(2007) retained. Marine mammal hearing groups and their associated
hearing ranges are provided in Table 2.

Table 2--Marine Mammal Hearing Groups
[NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
Hearing group Generalized hearing range *
----------------------------------------------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen whales)............... 7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans (dolphins, toothed whales, 150 Hz to 160 kHz.
beaked whales, bottlenose whales).
High-frequency (HF) cetaceans (true porpoises, Kogia, river 275 Hz to 160 kHz.
dolphins, cephalorhynchid, Lagenorhynchus cruciger & L.
australis).
Phocid pinnipeds (PW) (underwater) (true seals)............ 50 Hz to 86 kHz.
Otariid pinnipeds (OW) (underwater) (sea lions and fur 60 Hz to 39 kHz.
seals).
----------------------------------------------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the
group), where individual species' hearing ranges are typically not as broad. Generalized hearing range chosen
based on ~65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).

The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al. 2006; Kastelein et al. 2009; Reichmuth and Holt,
2013).

[[Page 24346]]

For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Five marine mammal species (three cetacean and two phocid pinniped
species) have the reasonable potential to co-occur with the planned
construction activities. Please refer to Table 1. Of the cetacean
species that may be present, one is classified as a LF cetacean (i.e.,
humpback whale) one is classified as a mid-frequency cetacean (i.e.,
bottlenose dolphin), and one is classified as a high-frequency cetacean
(i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

The effects of underwater noise from the Navy's activities have the
potential to result in behavioral harassment of marine mammals in the
vicinity of the survey area. The proposed rule (85 FR 83001; December
21, 2020) included a discussion of the effects of anthropogenic noise
on marine mammals and the potential effects of underwater noise from
the Navy's construction activities on marine mammals and their habitat.
That information and analysis is incorporated by reference into this
final rule and is not repeated here; please refer to the proposed rule
(85 FR 83001; December 21, 2020).
The Estimated Take section in this document includes a quantitative
analysis of the number of individuals that are expected to be taken by
this activity. The Negligible Impact Analysis and Determination section
considers the content of this section, the Estimated Take section, and
the Mitigation Measures section, to draw conclusions regarding the
likely impacts of these activities on the reproductive success or
survivorship of individuals and how those impacts on individuals are
likely to impact marine mammal species or stocks. We also provided
additional description of sound sources in our proposed rule (85 FR
83001; December 21, 2020).

Estimated Take

This section provides an estimate of the number of incidental takes
that may be authorized, which will inform both NMFS' consideration of
``small numbers'' and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns and potential TTS for individual
marine mammals resulting from exposure to pile driving and removal.
Based on the nature of the activity and the anticipated effectiveness
of the mitigation measures (i.e., shutdown zones) discussed in detail
below in the Mitigation Measures section, Level A harassment is neither
anticipated nor will be authorized.
As described previously, mortality is neither anticipated nor will
be authorized for this activity. Below we describe how the take is
estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
the number of days of activities. We note that while these factors can
contribute to a basic calculation to provide an initial prediction of
takes, additional information that can qualitatively inform take
estimates is also sometimes available (e.g., previous monitoring
results or average group size). Below, we describe the factors
considered here in more detail and present the take estimate.

Acoustic Thresholds

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

[[Page 24347]]

Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels.
The sound field in the project area is the existing background
noise plus additional construction noise from the planned project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., impact pile driving and
vibratory pile driving). The largest calculated Level B harassment zone
extends 7.2 km (4.5 mi) from the source (though truncated by land in
some directions), with an area of 4.7 km\2\ (1.8 mi\2\), as calculated
using geographic information system (GIS) data as determined by the
transmission loss modeling.

Table 4--Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
Installation
Pile size and type method RMS SPL Peak SPL SEL Source
----------------------------------------------------------------------------------------------------------------
24-in Square Concrete........ Impact.......... 176 189 163 Illingworth and
Rodkin, 2017.
16-in Composite.............. Impact.......... 165 177 157 Caltrans,
2015.\1\
Vibratory....... 158 .............. .............. Illingworth and
Rodkin, 2017.
12-in Timber................. Vibratory....... \2\ 158 .............. .............. Illingworth and
Rodkin, 2017.
----------------------------------------------------------------------------------------------------------------
\1\ These source levels are from a 12-in timber pile (Table 2-2, page 2-16).
\2\ NMFS typically recommends a proxy source level of 152dB RMS SPL for installation and removal of 12-in timber
piles; however, the Navy's application included specialized modeling (described below) using 158dB RMS SPL.
Given that modeling and that 158dB RMS SPL is a more conservative source level, NMFS concurred with the use of
158dB RMS SPL as the proxy source level for 12-in timber piles.

The Navy contracted the University of Washington, Applied Physics
Laboratory (APL) to conduct site-specific acoustic transmission loss
modeling for the project. The APL's full report is included in Appendix
B of the Navy's application. NMFS independently reviewed and concurred
with the modeling in the report, and has adopted the resulting
isopleths for the project, as included in Table 5.

Table 5--Level A and Level B Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment isopleth (m) Level B
---------------------------------------------------------------- harassment
Site Pile size and type isopleth (m)
LF cetacean MF cetacean HF cetacean Phocid \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 3.................................... 16-in Composite............. 18 <10m 27
Pier 12................................... 16-in Composite............. 18 24
MWR Marina................................ 24-in Concrete.............. 52 59
16-in Composite............. 11 18
V-Area.................................... 24-in Concrete.............. 42 47
16-in Composite............. 11 17
Craney Island............................. 16-in Composite............. 16 21
Lambert's Point........................... 16-in Composite............. 19 28
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 3.................................... 16-in Composite/12-in Timber <10m 5,615
Pier 12................................... 4,159
MWR Marina................................ 469
V-Area.................................... 382

[[Page 24348]]

Craney Island............................. 16-in Composite/12-in Timber <10m 3,001
Lambert's Point........................... 7,161
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Please refer to Tables 6-5 and 6-6 in the Navy's application for the areas of the Level B harassment zones.

Marine Mammal Occurrence and Take Calculation and Estimation

In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. We describe how the information provided above is brought
together to produce a quantitative take estimate.
Humpback Whale
Humpback whales occur in the mouth of the Chesapeake Bay and
nearshore waters of Virginia during winter and spring months. Most
detections during shipboard surveys were of one or two juveniles per
sighting. Although two individuals were detected in the vicinity of MPU
project activities, there is no evidence that they linger for multiple
days. Because no density estimates are available for the species in
this area, the Navy estimated one take for every 60 days of pile
driving. However, given the potential group size of two, as indicated
by the sightings referenced above, NMFS has estimated that two humpback
whales may be taken by Level B harassment for every 60 days of pile
driving. Therefore, given the number of project days expected in each
year (Table 4), NMFS may authorize a total of 24 takes by Level B
harassment of humpback whale over the five-year authorization, with no
more than eight takes by Level B harassment in one year.
The largest Level A harassment zone for low-frequency cetaceans
extends approximately 52 m from the source during impact pile driving
of 24-in concrete piles at the MWR Marina (Table 5). For most
activities, the Level A harassment zone is less than 20 m. The Navy is
planning to implement a 55-m shutdown zone for humpback whales during
impact pile driving of 24-in concrete piles, and shutdown zones that
include the entire Level A harassment isopleth for all activities, as
indicated in Table 11. Therefore, the Navy did not request, and NMFS
will not authorize Level A harassment take of humpback whale.
Bottlenose Dolphin
The expected number of bottlenose dolphins in the project area was
estimated using inshore seasonal densities provided in Engelhaupt et
al. (2016) from vessel line-transect surveys near NAVSTA Norfolk and
adjacent areas near Virginia Beach, Virginia, from August 2012 through
August 2015 (Engelhaupt et al. 2016). To calculate Level B harassment
takes of bottlenose dolphin, NMFS used the Chesapeake Bay density of
1.38 dolphins/km\2\ (Engelhaupt et al. 2016). This density includes
sightings inshore of the Chesapeake Bay from NAVSTA Norfolk west to the
Thimble Shoals Bridge, and is the most representative density for the
project area. NMFS conservatively multiplied the density of 1.38
dolphins/km\2\ by the largest Level B harassment zone for each project
location (Table 7) and then by the proportional number of estimated
pile driving days at each location for each year (Table 6). For
example, to calculate Level B harassment takes associated with work at
Pier 3 in 2021, NMFS multiplied the density (1.38 dolphins/km\2\) by
largest Level B harassment zone for Pier 3 (10.3 km\2\) by the
proportional number of pile driving days at Pier 3 in 2021 (24.6) for a
total of 350 Level B harassment takes at Pier 3 in 2021. Therefore,
NMFS may authorize 7,566 takes by Level B harassment of bottlenose
dolphin across all five years, with no more than 2,742 in one year.

Table 6--Estimated Number of Pile Driving Days at Each Project Location
----------------------------------------------------------------------------------------------------------------
Estimated Proportional number of pile driving days
number of pile \3\
Location \1\ driving days --------------------------------------------
(all seasons) 2021 2022 2023 2024 2025
----------------------------------------------------------------------------------------------------------------
Pier 3............................................ 68 24.6 10.0 2.1 9.0 22.3
Pier 12........................................... 352 127.6 51.5 11.0 46.6 115.3
MWR Marina........................................ 52 18.8 7.6 1.6 6.9 17.0
V-Area............................................ 44 15.9 6.4 1.4 5.8 14.4
Craney Island..................................... 52 18.8 7.6 1.6 6.9 17.0
Lambert's Point................................... 8 2.9 1.2 0.3 1.1 2.6
-------------------------------------------------------------
Estimated Total Pile Driving Days per Year.... \2\ 574 208 84 18 76 188
-------------------------------------------------------------
Percentage of Total Pile Driving Days......... ............... 36 15 3 13 33
----------------------------------------------------------------------------------------------------------------
\1\ While the Navy plans to conduct work at additional locations not listed here, these locations are assumed to
be representative of the overall project site (ex: all pile driving lumped together at Lambert's Point
Deperming Station), as noted in Appendix A of the Navy's application. Pile driving at these additional
locations is included in the total number of pile driving days assumed here.
\2\ NMFS recognizes that due to rounding, the sum of the estimated number of work days at each location is 576,
not 574. However, as mentioned previously, the Navy expects construction to last 574 days across all five
years.
\3\ The number of pile driving days indicated per year at each location is intended to inform our assessment of
both the total and maximum annual taking allowable under the rule. NMFS does not expect that the Navy will
conduct exactly the fractional number of days of pile driving indicated for each year in each location.

[[Page 24349]]

Table 7--Annual Level B Harassment Takes of Bottlenose Dolphin by Project Location
----------------------------------------------------------------------------------------------------------------
Largest Level Level B harassment takes \1\
Location B harassment -----------------------------------------------------
zone (km\2\) 2021 2022 2023 2024 2025 Total
----------------------------------------------------------------------------------------------------------------
Pier 3.................................... 10.3 350.2 141.4 30.3 128.0 316.6 966.6
Pier 12................................... 13.1 2,305.9 931.2 199.6 842.5 2,084.2 6,363.5
MWR Marina................................ 0.2 5.2 2.1 0.5 1.9 4.7 14.4
V-Area.................................... 0.2 4.4 1.8 0.4 1.6 4.0 12.1
Craney Island............................. 2.2 57.2 23.1 5.0 20.9 51.7 157.9
Lambert's Point........................... 4.7 18.8 7.6 1.6 6.9 17.0 51.9
---------------------------------------------------------------------
Total Level B Harassment Takes per .............. 2,742 1,107 237 1,002 2,478 7,566
Year.................................
---------------------------------------------------------------------
Annual Takes as Percentage of Five- .............. 36.2 14.6 3.1 13.2 32.8 .......
Year Total...........................
----------------------------------------------------------------------------------------------------------------
\1\ Note actual calculations were not rounded at each step as they are shown in Table 6 and Table 7.

The Level A harassment zones for mid-frequency cetaceans extend
less than 10 m from the source during all activities (Table 5). Given
the small size of the Level A harassment zones, we do not expect Level
A harassment take of bottlenose dolphins. Additionally, the Navy is
planning to implement a 10 m shutdown zone for bottlenose dolphins
during all pile driving and other in-water activities (Table 11), which
includes the entire Level A harassment zone for all pile driving
activities. Therefore, the Navy did not request, and NMFS will not
authorize Level A harassment take of bottlenose dolphin.
Harbor Porpoise
Harbor porpoises are known to occur in the coastal waters near
Virginia Beach (Hayes et al. 2019). Density data for this species
within the project vicinity do not exist or were not calculated because
sample sizes were too small to produce reliable estimates of density.
Harbor porpoise sighting data collected by the U.S. Navy near NAVSTA
Norfolk and Virginia Beach from 2012 to 2015 (Engelhaupt et al. 2014;
2015; 2016) did not produce enough sightings to calculate densities.
One group of two harbor porpoises was seen during spring 2015
(Engelhaupt et al. 2016). Elsewhere in their range, harbor porpoises
typically occur in groups of two to three individuals (Carretta et al.
2001; Smultea et al. 2017).
Because there are no density estimates for the species in the MPU
project area, the Navy conservatively estimated two takes of harbor
porpoise by Level B harassment per 60 pile driving days (Table 4),
resulting in 20 takes by Level B harassment across the five year rule,
and no more than seven takes by Level B harassment in one year. NMFS
corrected this estimate in this final rule to reflect that an estimated
two takes of harbor porpoise by Level B harassment per 60 pile driving
days results in 24 takes by Level B harassment over the five year
duration of the rule, with no more than eight takes by Level B
harassment in one year (Table 9). NMFS may authorize 24 takes by Level
B harassment of harbor porpoise.
The Level A harassment zones for high-frequency cetaceans extend
less than 10 m from the source during all activities (Table 5). Given
the small size of the Level A harassment zones, we do not expect take
by Level A harassment of harbor porpoise. Additionally, the Navy is
planning to implement a 10 m shutdown zone for during pile driving and
other in-water activities (Table 11). Therefore, the Navy did not
request, and NMFS will not authorize take by Level A harassment of
harbor porpoise.
Harbor Seal
The expected number of harbor seals in the project area was
estimated using systematic, land- and vessel-based survey data for in-
water and hauled-out seals collected by the U.S. Navy at the CBBT rock
armor and portal islands from 2014 through 2019 (Jones et al. 2020).
The average daily seal count from the 2014 through 2019 field seasons
ranged from 8 to 23, with an average of 13.6 harbor seals across all
the field seasons (Table 8).

Table 8--Harbor Seal Counts at Chesapeake Bay Bridge Tunnel
----------------------------------------------------------------------------------------------------------------
``In season'' Total seal Average daily Max daily
Field season survey days count seal count seal count
----------------------------------------------------------------------------------------------------------------
2014-2015....................................... 11 113 10 33
2015-2016....................................... 14 187 13 39
2016-2017....................................... 22 308 14 40
2017-2018....................................... 15 340 23 45
2018-2019....................................... 10 82 8 17
---------------------------------------------------------------
Average..................................... .............. .............. 13.6 34.8
----------------------------------------------------------------------------------------------------------------
Source: Jones et al. 2020.

The Navy expects, and NMFS concurs, that harbor seals are likely to
be present from November to April. In the proposed rule, NMFS
calculated take by Level B harassment by multiplying 14 seals by the
number of pile driving days expected in each year if fewer than 183
project days (half of the year) were expected. To account for seasonal
occurrence (November to April), NMFS calculated take based on 183
project days for years which have more than 183 expected project days
(2021, 2025). In this final rule, NMFS calculated take in a parallel
manner to

[[Page 24350]]

that done in the proposed rule, except NMFS estimated 13.6 seals per
day, rather than 14 seals per day to produce a more exact take estimate
using the average daily seal count from Jones et al. (2020). Therefore,
NMFS may authorize 7,399 takes by Level B harassment of harbor seals
across the five-year duration of this rule, with no more than 2,489
takes by Level B harassment in one year (Table 9).
The Level A harassment zones for phocids extend less than 10 m from
the source during all activities (Table 5). Given the small size of the
Level A harassment zones, we do not expect take by Level A harassment
of harbor seal. Additionally, the Navy is planning to implement a 10 m
shutdown zone for during pile driving and other in-water activities
(Table 11), which includes the entire Level A harassment zone for all
pile driving activities. Therefore, the Navy did not request, and NMFS
will not authorize take by Level A harassment of harbor seal.
Gray Seal
Very little information is available about the occurrence of gray
seals in the Chesapeake Bay and coastal waters. Although the population
of the United States may be increasing, there are only a few records at
known haulout sites in Virginia used by harbor seals, strandings are
rare, and they have not been reported in shipboard surveys. Assuming
that they may utilize the Chesapeake Bay waters, the Navy
conservatively estimates that one gray seal may be exposed to noise
levels above the Level B harassment threshold for every 60 days of
vibratory pile driving during the six month period when they are most
likely to be present. NMFS concurs, and calculated take based on the
number of project days for years which have fewer than 183 project days
(half of the year). To account for the expected seasonal presence of
gray seals, NMFS calculated take based on 183 project days for years
which have more than 183 expected project days (2021, 2025). Therefore,
NMFS may authorize nine takes by Level B harassment of gray seals over
the five-year duration of the rule, with no more than three takes by
Level B harassment in one year (Table 9).
The Level A harassment zones for phocids extend less than 10 m from
the source during all activities (Table 5). Given the small size of the
Level A harassment zones and the low occurrence of gray seals in the
project area, we do not expect Level A harassment take of gray seal.
Additionally, the Navy is planning to implement a 10 m shutdown zone
for during pile driving and other in-water activities (Table 11), which
includes the entire Level A harassment zone for all pile driving
activities. Therefore, the Navy did not request, and NMFS will not
authorize take by Level A harassment of gray seal.

Table 9--Estimated Take by Level B Harassment, by Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species 2021 2022 2023 2024 2025 Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale.......................................... 8 4 2 4 6 24
Bottlenose dolphin...................................... 2,742 1,107 237 1,002 2,478 7,566
Harbor porpoise \1\..................................... 8 4 2 4 6 24
Harbor seal \1\......................................... 2,489 1,142 245 1,034 2,489 7,399
Gray seal............................................... 3 1 1 1 3 9
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Updated since publication of the proposed rule.

Table 10--Estimated Take by Level B Harassment (Greatest Annual Take Expected), by Species and Stock in
Comparison to Stock Abundance
----------------------------------------------------------------------------------------------------------------
Level B
Species Stock Stock harassment Percent of
abundance take stock
----------------------------------------------------------------------------------------------------------------
Humpback Whale........................ Gulf of Maine........... \b\ 12,312 8 0.6
Bottlenose Dolphin.................... WNA Coastal, Northern 6,639 1,353 20.4
Migratory \a\.
WNA Coastal, Southern 3,751 1,353 36.1
Migratory \a\.
NNCES \c\............... 823 36 4.4
Harbor Porpoise....................... Gulf of Maine/Bay of 95,543 \e\ 8 0.008
Fundy.
Harbor Seal........................... Western North Atlantic.. 75,834 \e\ 2,489 \e\ 3.3
Gray Seal............................. Western North Atlantic.. \d\ 27,131 3 0.01
----------------------------------------------------------------------------------------------------------------
\a\ Take estimates are weighted based on calculated percentages of population for each distinct stock, assuming
animals present would follow same probability of presence in the project area. Please see the Small Numbers
section for additional information.
\b\ West Indies DPS.
\c\ Assumes multiple repeated takes of same individuals from small portion of each stock as well as repeated
takes of Chesapeake Bay resident population (size unknown). Please see the Small Numbers section for
additional information.
\d\ This stock abundance estimate includes only the U.S. portion of this stock. The actual stock abundance,
including the Canadian portion of the population, is estimated to be approximately 451,431 animals.
\e\ Updated since publication of the proposed rule.

Mitigation Measures

Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the
permissible methods of taking pursuant to the activity, and other means
of effecting the least practicable impact on the species or stock and
its habitat, paying particular attention to rookeries, mating grounds,
and areas of similar significance, and on the availability of the
species or stock for taking for certain subsistence uses (latter not
applicable for this action). NMFS regulations require applicants for
incidental take authorizations to include information about the
availability and feasibility (economic and technological) of equipment,
methods, and manner of conducting the activity or other means of
effecting the least practicable adverse impact upon the affected
species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as

[[Page 24351]]

well as subsistence uses where applicable, we carefully consider two
primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
In addition to the measures described later in this section, the
Navy will employ the following mitigation measures:
For in-water heavy machinery work other than pile driving,
if a marine mammal comes within 10 m, operations shall cease and
vessels shall reduce speed to the minimum level required to maintain
steerage and safe working conditions;
The Navy will conduct briefings between construction
supervisors and crews and the marine mammal monitoring team prior to
the start of all pile driving activity and when new personnel join the
work, to explain responsibilities, communication procedures, marine
mammal monitoring protocol, and operational procedures;
For those marine mammals for which Level B harassment take
has not been requested, in-water pile installation/removal will shut
down immediately if such species are observed within or entering the
Level B harassment zone; and
If take reaches the authorized limit for an authorized
species, pile installation/removal will shut down immediately if these
species approach the Level B harassment zone to avoid additional take.
The following mitigation measures apply to the Navy's in-water
construction activities.
Establishment of Shutdown Zones--The Navy will establish shutdown
zones for all pile driving and removal activities. The purpose of a
shutdown zone is generally to define an area within which shutdown of
the activity would occur upon sighting of a marine mammal (or in
anticipation of an animal entering the defined area). Shutdown zones
will vary based on the activity type and marine mammal hearing group
(Table 11).
Protected Species Observers (PSOs)--The placement of PSOs during
all pile driving and removal activities (described in the Monitoring
and Reporting section) will ensure that the entire shutdown zone is
visible during pile driving and removal. Should environmental
conditions deteriorate such that marine mammals within the entire
shutdown zone would not be visible (e.g., fog, heavy rain, night), pile
driving and removal must be delayed until the PSO is confident marine
mammals within the shutdown zone could be detected.
Monitoring for Level B Harassment--The Navy will monitor the Level
B harassment zones (areas where SPLs are equal to or exceed the 160 dB
rms threshold for impact driving and the 120 dB rms threshold during
vibratory pile driving) to the extent practicable, and the Level A
harassment zones. The Navy will monitor at least a portion of the Level
B harassment zone on all pile driving days. Monitoring zones provide
utility for observing by establishing monitoring protocols for areas
adjacent to the shutdown zones. Monitoring zones enable observers to be
aware of and communicate the presence of marine mammals in the project
area outside the shutdown zone and thus prepare for a potential
cessation of activity should the animal enter the shutdown zone.
Pre-activity Monitoring--Prior to the start of daily in-water
construction activity, or whenever a break in pile driving/removal of
30 minutes or longer occurs, PSOs will observe the shutdown and
monitoring zones for a period of 30 minutes. The shutdown zone will be
considered cleared when a marine mammal has not been observed within
the zone for that 30-minute period.
If a marine mammal is observed within the shutdown zone, a soft-
start cannot proceed until the animal has left the zone or has not been
observed for 15 minutes. When a marine mammal for which Level B
harassment take is authorized is present in the Level B harassment
zone, activities may begin and Level B harassment take will be
recorded. If the entire Level B harassment zone is not visible at the
start of construction, pile driving activities can begin. If work
ceases for more than 30 minutes, the pre-activity monitoring of the
shutdown zones will commence. A determination that the shutdown zone is
clear must be made during a period of good visibility (i.e., the entire
shutdown zone and surrounding waters must be visible to the naked eye).
Soft Start--Soft-start procedures are believed to provide
additional protection to marine mammals by providing warning and/or
giving marine mammals a chance to leave the area prior to the hammer
operating at full capacity. For impact pile driving, contractors will
be required to provide an initial set of three strikes from the hammer
at reduced energy, followed by a 30-second waiting period. This
procedure will be conducted three times before impact pile driving
begins. Soft start will be implemented at the start of each day's
impact pile driving and at any time following cessation of impact pile
driving for a period of 30 minutes or longer.
The Navy does not plan to use a pile driving energy attenuator
during construction.

Table 11--Shutdown Zones During Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
Shutdown zone
Site Pile size and ---------------------------------------------------------------
type LF cetacean MF cetacean HF cetacean Phocid
----------------------------------------------------------------------------------------------------------------
Pier 3........................ 16-in Composite. 20 10m
Pier 12....................... 16-in Composite. 20
MWR Marina.................... 24-in Concrete.. 55
16-in Composite. 20
V-Area........................ 24-in Concrete.. 55
16-in Composite. 20
Craney Island................. 16-in Composite. 20
Lambert's Point............... 16-in Composite. 20
----------------------------------------------------------------------------------------------------------------
Pier 3........................ 16-in Composite/ 10m
12-in Timber.

[[Page 24352]]

Pier 12 16-in Composite/ 10m
12-in Timber
MWR Marina
V-Area
Craney Island
Lambert's Point
----------------------------------------------------------------------------------------------------------------

Based on our evaluation of the Navy's planned measures, as well as
other measures considered by NMFS, NMFS has determined that the
required mitigation measures provide the means effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.

Monitoring and Reporting

In order to issue an LOA for an activity, section 101(a)(5)(A) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. NMFS' MMPA implementing
regulations further describe the information that an applicant should
provide when requesting an authorization (50 CFR 216.104 (a)(13)),
including the means of accomplishing the necessary monitoring and
reporting that will result in increased knowledge of the species and
the level of taking or impacts on populations of marine mammals.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (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 marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
The Navy will submit a Marine Mammal Monitoring Plan to NMFS for
approval in advance of the start of construction.

Visual Monitoring

Marine mammal monitoring during pile driving and removal must be
conducted by PSOs meeting NMFS' standards and in a manner consistent
with the following:
Independent PSOs (i.e., not construction personnel) who
have no other assigned tasks during monitoring periods must be used;
At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
Other PSOs may substitute education (degree in biological
science or related field) or training for experience; and
Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator must be designated. The lead
observer must have prior experience working as a marine mammal observer
during construction.
PSOs must have the following additional qualifications:
Ability to conduct field observations and collect data
according to assigned protocols;
Experience or training in the field identification of
marine mammals, 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 prepare a report of
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, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
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.
At least three PSOs must be used during vibratory pile driving at
Pier 3, Pier 12, and Craney Island, and at least four PSOs during
vibratory pile driving at Lambert's Point, as recommended by the
Commission in its comments on the proposed rule. For all other pile
driving activities, a minimum of two PSOs will be used, as stated in
the proposed rule (85 FR 83001; December 21, 2020). Depending on
available resources, and depending on the size of the zone associated
with the activity, additional PSOs may be utilized as necessary. PSOs
will be placed at the best vantage point(s) practicable to monitor for
marine mammals and implement shutdown/delay procedures. (See Figure 13-
1 of the Navy's application for example representative monitoring
locations.)
Monitoring will be conducted 30 minutes before, during, and 30
minutes after pile driving activities. In addition, observers shall
record all incidents of marine mammal occurrence, regardless of
distance from activity, and shall document any behavioral reactions in
concert with distance from piles being driven or removed. 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 30 minutes.

Acoustic Monitoring

Since publication of the proposed rule, the Navy has determined
that SSV may not be feasible given budget constraints associated with
the individual, small-scale projects planned. However, subject to
funding availability, the Navy may conduct a SSV study for pile types
other than timber piles (prioritizing composite pile types) and would
follow accepted methodological standards to achieve

[[Page 24353]]

their objectives. The Navy would submit an acoustic monitoring plan to
NMFS for approval prior to implementation of the plan. Upon review of
the Navy's SSV results, NMFS may update the Level A and Level B
harassment zone sizes and the associated shutdown zones, as
appropriate.

Reporting

The Navy will submit a draft report to NMFS within 45 workdays of
the completion of required monitoring for each MPU project. The report
will detail the monitoring protocol and summarize the data recorded
during monitoring. Specifically, the report must include:
Dates and times (begin and end) of all marine mammal
monitoring;
Construction activities occurring during each daily
observation period, including how many and what type of piles were
driven or removed and by what method (i.e., impact or vibratory);
Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance (if less
than the harassment zone distance);
The number of marine mammals observed, by species,
relative to the pile location and if pile driving or removal was
occurring at time of sighting;
Age and sex class, if possible, of all marine mammals
observed;
PSO locations during marine mammal monitoring;
Distances and bearings of each marine mammal observed to
the pile being driven or removed for each sighting (if pile driving or
removal was occurring at time of sighting);
Description of any marine mammal behavior patterns during
observation, including direction of travel and estimated time spent
within the Level A and Level B harassment zones while the source was
active;
Number of marine mammals detected within the harassment
zones, by species;
Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting behavior of the animal, if
any;
Description of attempts to distinguish between the number
of individual animals taken and the number of incidences of take, such
as ability to track groups or individuals; and
Estimated percentage of the Level B harassment zone that
was not visible.
If no comments are received from NMFS within 30 days, the draft
report will constitute the final report. If comments are received, a
final report addressing NMFS comments must be submitted within 30 days
after receipt of comments.
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the Navy shall report the
incident to the Office of Protected Resources (OPR) (301-427-8401),
NMFS and to the Greater Atlantic Region New England/Mid-Atlantic
Regional Stranding Coordinator as soon as feasible. If the death or
injury was clearly caused by the specified activity, the Navy must
immediately cease the specified activities until NMFS is able to review
the circumstances of the incident and determine what, if any,
additional measures are appropriate to ensure compliance with the terms
of the authorization. The Navy must not resume their activities until
notified by NMFS.
The report must include the following information:
i. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
ii. Species identification (if known) or description of the
animal(s) involved;
iii. Condition of the animal(s) (including carcass condition if the
animal is dead);
iv. Observed behaviors of the animal(s), if alive;
v. If available, photographs or video footage of the animal(s); and
vi. General circumstances under which the animal was discovered.

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
To avoid repetition, this introductory discussion of our analyses
applies to all of the species listed in Table 1, given that many of the
anticipated effects of this project on different marine mammal stocks
are expected to be relatively similar in nature. Where there are
meaningful differences between species or stocks in anticipated
individual responses to activities, impact of expected take on the
population due to differences in population status, or impacts on
habitat, they are described independently in the analysis below.
Pile driving activities associated with the project, as outlined
previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level B harassment from underwater sounds generated by pile driving.
Potential takes could occur if marine mammals are present in zones
ensonified above the thresholds for Level B harassment, identified
above, while activities are underway.
No serious injury or mortality would be expected even in the
absence of the required mitigation measures. For all species other than
humpback whale, no Level A harassment is anticipated given the nature
of the activities. For humpback whale, no Level A harassment is
anticipated due to the required mitigation measures, which we expect
the Navy will be able to effectively implement given the small Level A
harassment zone sizes and high visibility of humpback whales.
The Navy's planned pile driving activities and associated impacts
will occur within a limited portion of the confluence of the Chesapeake
Bay area. Localized noise exposures produced by project activities may
cause short-term behavioral modifications in affected cetaceans and
pinnipeds. However, as described previously, the mitigation and
monitoring measures are expected to

[[Page 24354]]

further reduce the likelihood of injury as well as reduce behavioral
disturbances.
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). Individual animals, even if taken multiple times, will most
likely 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 along both
Atlantic and Pacific coasts, which have taken place with no known long-
term adverse consequences from behavioral harassment. Furthermore, many
projects similar to this one are also believed to result in multiple
takes of individual animals without any documented long-term adverse
effects. Level B harassment will be minimized through use of mitigation
measures described herein and, if sound produced by project activities
is sufficiently disturbing, animals are likely to simply avoid the area
while the activity is occurring, particularly as the project is located
on a busy waterfront with high amounts of vessel traffic.
As described in the proposed rule (85 FR 83001; December 21, 2020),
Unusual Mortality Events (UMEs) have been declared for Northeast
pinnipeds (including harbor seal and gray seal) and Atlantic humpback
whales. However, we do not expect takes that may be authorized under
this rule to exacerbate or compound upon these ongoing UMEs. As noted
previously, no injury, serious injury, or mortality is expected or will
be authorized, and Level B harassment takes of humpback whale, harbor
seal and gray seal will be reduced to the level of least practicable
adverse impact through the incorporation of the required mitigation
measures. For the WNA stock of gray seal, the estimated stock abundance
is 451,431 animals, including the Canadian portion of the stock
(estimated 27,131 animals in the U.S. portion of the stock). Given that
only 1 to 3 takes by Level B harassment may be authorized for this
stock annually, we do not expect this authorization to exacerbate or
compound upon the ongoing UME.
With regard to humpback whales, despite the UME, the relevant
population of humpback whales (the West Indies breeding population, or
distinct population segment (DPS)) remains healthy. Prior to 2016,
humpback whales were listed under the ESA as an endangered species
worldwide. Following a 2015 global status review (Bettridge et al.
2015), NMFS established 14 DPSs with different listing statuses (81 FR
62259; September 8, 2016) pursuant to the ESA. The West Indies DPS,
which consists of the whales whose breeding range includes the Atlantic
margin of the Antilles from Cuba to northern Venezuela, and whose
feeding range primarily includes the Gulf of Maine, eastern Canada, and
western Greenland, was delisted. The status review identified harmful
algal blooms, vessel collisions, and fishing gear entanglements as
relevant threats for this DPS, but noted that all other threats are
considered likely to have no or minor impact on population size or the
growth rate of this DPS (Bettridge et al. 2015). As described in
Bettridge et al. (2015), the West Indies DPS has a substantial
population size (i.e., 12,312 (95% CI 8,688-15,954) whales in 2004-05
(Bettridge et al. 2003)), and appears to be experiencing consistent
growth. Further, NMFS will authorize no more than eight takes by Level
B harassment annually of humpback whale.
For the WNA stock of harbor seals, the estimated abundance is
75,834 individuals. The estimated M/SI for this stock (350) is well
below the PBR (2,006). As such, the Level B harassment takes of harbor
seal that may be authorized are not expected to exacerbate or compound
upon the ongoing UMEs.
The project is also not expected to have significant adverse
effects on affected marine mammals' habitats. The project activities
will not modify existing marine mammal habitat for a significant amount
of time. The activities may cause some fish to leave the area of
disturbance, thus temporarily impacting marine mammals' foraging
opportunities in a limited portion of the foraging range; but, because
of the short duration of the activities and the relatively small area
of the habitat that may be affected (with no known particular
importance to marine mammals), the impacts to marine mammal habitat are
not expected to cause significant or long-term negative consequences.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
No mortality or serious injury is anticipated or will be
authorized;
No Level A harassment take is anticipated or will be
authorized;
The intensity of anticipated takes by Level B harassment
is relatively low for all stocks;
The number of anticipated takes is very low for humpback
whale, harbor porpoise, and gray seal;
The specified activity and associated ensonifed areas are
very small relative to the overall habitat ranges of all species and do
not include habitat areas of special significance (Biologically
Important Areas or ESA-designated critical habitat);
The lack of anticipated significant or long-term negative
effects to marine mammal habitat; and
The presumed efficacy of the mitigation measures in
reducing the effects of the specified activity.
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, NMFS finds that the total marine mammal take from
the planned activity will have a negligible impact on all affected
marine mammal species or stocks.

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, where estimated numbers are
available, NMFS compares the number of individuals taken to the most
appropriate estimation of abundance of the relevant species or stock in
our determination of whether an authorization is limited to small
numbers of marine mammals. When the predicted number of individuals to
be taken is fewer than one third of the species or stock abundance, the
take is considered to be of small numbers. Additionally, other
qualitative factors may be considered in the analysis, such as the
temporal or spatial scale of the activities.
The instances of take of humpback whale, harbor porpoise, harbor
seal, and gray seal which NMFS expects to authorize, comprises less
than one-third of the best available stock abundance (Table 10). The
number of animals that we expect to authorize to be taken from these
stocks would be considered small relative to the relevant stock's

[[Page 24355]]

abundances even if each estimated taking occurred to a new individual,
which is an unlikely scenario.
Three bottlenose dolphin stocks could occur in the project area:
WNA Coastal Northern Migratory, WNA Coastal Southern Migratory, and
NNCES stocks. Therefore, the estimated takes of bottlenose dolphin by
Level B harassment would likely be portioned among these stocks. Based
on the stocks' respective occurrence in the area, NMFS estimated that
there would be 100 takes from the NNCES stock over the five-year period
(no more than 36 in one year), with the remaining takes evenly split
between the northern and southern migratory coastal stocks. Based on
consideration of various factors described below, we have determined
the numbers of individuals taken would likely comprise less than one-
third of the best available population abundance estimate of either
coastal migratory stock.
Both the WNA Coastal Northern Migratory and WNA Coastal Southern
Migratory stocks have expansive ranges, and they are the only dolphin
stocks thought to make broad-scale, seasonal migrations in coastal
waters of the western North Atlantic. Given the large ranges associated
with these stocks it is unlikely that large segments of either stock
would approach the project area and enter into the Chesapeake Bay. The
majority of both stocks are likely to be found widely dispersed across
their respective habitat ranges and unlikely to be concentrated in or
near the Chesapeake Bay.
Furthermore, the Chesapeake Bay and nearby offshore waters
represent the boundaries of the ranges of each of the two coastal
stocks during migration. The WNA Coastal Northern Migratory stock
occurs during warm water months from coastal Virginia, including the
Chesapeake Bay and Long Island, New York. The stock migrates south in
late summer and fall. During cold-water months, dolphins may occur in
coastal waters from Cape Lookout, North Carolina, to the North
Carolina/Virginia. During January-March, the WNA Coastal Southern
Migratory stock appears to move as far south as northern Florida. From
April to June, the stock moves back north to North Carolina. During the
warm water months of July-August, the stock is presumed to occupy
coastal waters north of Cape Lookout, North Carolina, to Assateague,
Virginia, including the Chesapeake Bay. There is likely some overlap
between the northern and southern migratory stocks during spring and
fall migrations, but the extent of overlap is unknown.
The Chesapeake Bay and waters offshore of its mouth are located on
the periphery of the migratory ranges of both coastal stocks (although
during different seasons). Additionally, each of the migratory coastal
stocks are likely to be located in the vicinity of the Chesapeake Bay
for relatively short timeframes. Given the limited number of animals
from each migratory coastal stock likely to be found at the seasonal
migratory boundaries of their respective ranges, in combination with
the short time periods (~two months) animals might remain at these
boundaries, it is reasonable to assume that takes are likely to occur
to only a small portion of either of the migratory coastal stocks.
Both migratory coastal stocks likely overlap with the NNCES stock
at various times during their seasonal migrations. The NNCES stock is
defined as animals that primarily occupy waters of the Pamlico Sound
estuarine system (which also includes Core, Roanoke, and Albemarle
sounds, and the Neuse River) during warm water months (July-August).
Animals from this stock also use coastal waters (<=1 km from shore) of
North Carolina from Beaufort north to Virginia Beach, Virginia,
including the lower Chesapeake Bay. Comparison of dolphin photo-
identification data confirmed that limited numbers of individual
dolphins observed in Roanoke Sound have also been sighted in the
Chesapeake Bay (Young, 2018). Like the migratory coastal dolphin
stocks, the NNCES stock covers a large range. The spatial extent of
most small and resident bottlenose dolphin populations is on the order
of 500 km\2\, while the NNCES stock occupies over 8,000 km\2\
(LeBrecque et al. 2015). Given this large range, it is again unlikely
that a preponderance of animals from the NNCES stock would depart the
North Carolina estuarine system and travel to the northern extent of
the stock's range. However, recent evidence suggests that there is
likely a small resident community of NNCES dolphins of indeterminate
size that inhabits the Chesapeake Bay year-round (E. Patterson, NMFS,
pers. comm.).
Many of the dolphin observations in the Chesapeake Bay are likely
repeated sightings of the same individuals. The Potomac-Chesapeake
Dolphin Project has observed over 1,200 unique animals since
observations began in 2015. Re-sightings of the same individual can be
highly variable. Some dolphins are observed once per year, while others
are highly regular with greater than 10 sightings per year (J. Mann,
Potomac-Chesapeake Dolphin Project, pers. comm.). Similarly, using
available photo-identification data, Engelhaupt et al. (2016)
determined that specific individuals were often observed in close
proximity to their original sighting locations and were observed
multiple times in the same season or same year. Ninety-one percent of
re-sighted individuals (100 of 110) in the study area were recorded
less than 30 km from the initial sighting location. Multiple sightings
of the same individual would considerably reduce the number of
individual animals that are taken by Level B harassment. Furthermore,
the existence of a resident dolphin population in the Bay would
increase the percentage of dolphin takes that are actually re-sightings
of the same individuals.
In summary and as described above, the following factors primarily
support our determination regarding the incidental take of small
numbers of the affected stocks of bottlenose dolphin:
Potential bottlenose dolphin takes in the project area are
likely to be allocated among three distinct stocks;
Bottlenose dolphin stocks in the project area have
extensive ranges and it would be unlikely to find a high percentage of
any one stock concentrated in a relatively small area such as the
project area or the Chesapeake Bay;
The Chesapeake Bay represents the migratory boundary for
each of the specified dolphin stocks and it would be unlikely to find a
high percentage of any stock concentrated at such boundaries; and
Many of the takes would likely be repeats of the same
animals and likely from a resident population of the Chesapeake Bay.
Based on the analysis contained herein of the planned activity
(including the required mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals will be taken relative to the population size of the
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Adaptive Management

The regulations governing the take of marine mammals incidental to
Navy maintenance construction activities

[[Page 24356]]

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

Endangered Species Act

Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that
each Federal agency insure that any action it authorizes, funds, or
carries out is not likely to jeopardize the continued existence of any
endangered or threatened species or result in the destruction or
adverse modification of designated critical habitat. To ensure ESA
compliance for the issuance of incidental take authorizations, NMFS
consults internally whenever we propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is expected to result from
this activity. Therefore, NMFS has determined that formal consultation
under section 7 of the ESA is not required for this action.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that this action qualifies to be categorically excluded from further
NEPA review.

Classification

Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
final 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 has
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. The U.S. Navy is the sole entity that would be subject to the
requirements in these regulations, and the Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received regarding this
certification. As a result, a regulatory flexibility analysis is not
required and none has been prepared.
This rule does not contain a collection-of-information requirement
subject to the provisions of the Paperwork Reduction Act (PRA) because
the applicant is a Federal agency. 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 PRA unless that
collection of information displays a currently valid OMB control
number. These requirements have been approved by OMB under control
number 0648-0151 and include applications for regulations, subsequent
LOAs, and reports.

List of Subjects in 50 CFR Part 218

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

Dated: April 30, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.

For reasons set forth in the preamble, 50 CFR part 218 is amended
as follows:

PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS

0
1. The authority citation for part 218 continues to read as follows:

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

0
2. Add subpart A to part 218 to read as follows:
Subpart A--Taking and Importing Marine Mammals Incidental to U.S. Navy
Construction at Naval Station Norfolk in Norfolk, Virginia
Sec.
218.1 Specified activity and geographical region.
218.2 Effective dates.
218.3 Permissible methods of taking.
218.4 Prohibitions.
218.5 Mitigation requirements.
218.6 Requirements for monitoring and reporting.
218.7 Letters of Authorization.
218.8 Renewals and modifications of Letters of Authorization.
218.9 [Reserved]

Subpart A--Taking and Importing Marine Mammals Incidental to U.S.
Navy Construction at Naval Station Norfolk in Norfolk, Virginia

Sec. 218.1 Specified activity and geographical region.

(a) Regulations in this subpart apply only to the U.S. Navy (Navy)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
construction activities including marine structure maintenance, pile
replacement, and select waterfront improvements at Naval Station
(NAVSTA) Norfolk.
(b) The taking of marine mammals by the Navy may be authorized in a
Letter of Authorization (LOA) only if it occurs at NAVSTA Norfolk and
adjacent Navy facilities.

Sec. 218.2 Effective dates.

Regulations in this subpart are effective from June 7, 2021 to June
7, 2026.

Sec. 218.3 Permissible methods of taking.

Under an LOA issued pursuant to Sec. Sec. 216.106 of this chapter
and 218.7, the Holder of the LOA (hereinafter ``Navy'')

[[Page 24357]]

may incidentally, but not intentionally, take marine mammals within the
area described in Sec. 218.1(b) by Level B harassment associated with
construction activities, provided the activity is in compliance with
all terms, conditions, and requirements of the regulations in this
subpart and the applicable LOA.

Sec. 218.4 Prohibitions.

(a) Except for the takings contemplated in Sec. 218.3 and
authorized by a LOA issued under Sec. Sec. 216.106 of this chapter and
218.7, it is unlawful for any person to do any of the following in
connection with the activities described in Sec. 218.1 may:
(1) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. 216.106 of
this chapter and Sec. 218.7;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA 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.
(b) [Reserved]

Sec. 218.5 Mitigation requirements.

(a) When conducting the activities identified in Sec. 218.20(a),
the mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and 218.7 must be implemented. These mitigation
measures shall include but are not limited to:
(1) A copy of any issued LOA must be in the possession of the Navy,
its designees, and work crew personnel operating under the authority of
the issued LOA;
(2) The Navy shall conduct briefings for construction supervisors
and crews, the 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, the marine
mammal monitoring protocol, and operational procedures;
(3) For in-water heavy machinery work other than pile driving, if a
marine mammal comes within 10 m, the Navy shall cease operations and
reduce vessel speed to the minimum level required to maintain steerage
and safe working conditions;
(4) For all pile driving activity, the Navy shall implement a
minimum shutdown zone of a 10 m radius around the pile. If a marine
mammal comes within or approaches the shutdown zone, such operations
shall cease;
(5) For all pile driving activity, the Navy shall implement
shutdown zones with radial distances as identified in a LOA issued
under Sec. Sec. 216.106 of this chapter and 218.7. If a marine mammal
comes within or approaches the shutdown zone, such operations shall
cease;
(6) The Navy shall deploy protected species observers (observers)
as indicated in its Marine Mammal Monitoring Plan approved by NMFS;
(7) A minimum of three PSOs shall be stationed at the best vantage
points practicable to monitor for marine mammals and implement
shutdown/delay procedures during vibratory pile driving at Pier 3, Pier
12, and Craney Island, and at least four PSOs must be stationed at the
best vantage points practicable during vibratory pile driving at
Lambert's Point. For all other pile driving activities, a minimum of
two observers shall be stationed at the best vantage points practicable
to monitor for marine mammals and implement shutdown/delay procedures;
(8) Monitoring shall take place from 30 minutes prior to initiation
of pile driving activity through 30 minutes post-completion of pile
driving activity. Pre-activity monitoring shall be conducted for 30
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. If a marine mammal is observed within the shutdown zone, a
soft-start cannot proceed until the animal has left the zone or has not
been observed for 15 minutes. Monitoring shall occur throughout the
time required to drive a pile. If work ceases for more than 30 minutes,
the pre-activity monitoring of the shutdown zones must commence. A
determination that the shutdown zone is clear must be made during a
period of good visibility (i.e., the entire shutdown zone and
surrounding waters must be visible to the naked eye);
(9) 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;
(10) Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone;
(11) Should environmental conditions deteriorate such that marine
mammals within the entire shutdown zone would not be visible (e.g.,
fog, heavy rain, night), the Navy shall delay pile driving and removal
until observers are confident marine mammals within the shutdown zone
could be detected;
(12) Monitoring shall be conducted by trained observers, who shall
have no other assigned tasks during monitoring periods. Trained
observers shall be placed at the best vantage point(s) practicable to
monitor for marine mammals and implement shutdown or delay procedures
when applicable through communication with the equipment operator. The
Navy shall adhere to the following additional observer qualifications:
(i) Independent observers are required;
(ii) At least one observer must have prior experience working as an
observer;
(iii) Other observers may substitute education (degree in
biological science or related field) or training for experience;
(iv) Where a team of three or more observers are required, one
observer shall be designated as lead observer or monitoring
coordinator. The lead observer must have prior experience working as an
observer;
(v) Personnel who are engaged in construction activities may not
serve as observers.
(13) The Navy shall use soft start techniques for impact pile
driving. Soft start for impact drivers requires the Navy and those
persons it authorizes or funds to provide an initial set of three
strikes at reduced energy, followed by a 30-second waiting period, then
two subsequent reduced energy three-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.
(b) [Reserved]

[[Page 24358]]

Sec. 218.6 Requirements for monitoring and reporting.

(a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS
for approval in advance of construction.
(b) The Navy shall deploy at least three PSOs during vibratory pile
driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs
during vibratory pile driving at Lambert's Point. For all other pile
driving activities, the Navy shall deploy a minimum of two PSOs.
(c) Observers shall be trained in marine mammal identification and
behaviors. Observers shall have no other construction-related tasks
while conducting monitoring.
(d) For all pile driving activities, a minimum of two observers
shall be stationed at the active pile driving site or in reasonable
proximity in order to monitor the shutdown zone.
(e) The Navy shall monitor the Level B harassment zones (areas
where SPLs are equal to or exceed the 160 dB rms threshold for impact
driving and the 120 dB rms threshold during vibratory pile driving) to
the extent practicable and the shutdown zones. The Navy shall monitor
at least a portion of the Level B harassment zone on all pile driving
days.
(f) The Navy shall submit a draft monitoring report to NMFS within
45 work days of the completion of required monitoring for each marine
structure maintenance, pile replacement, and upgrades project. The
report must detail the monitoring protocol and summarize the data
recorded during monitoring. If no comments are received from NMFS
within 30 days, the draft report will constitute the final report. If
comments are received, a final report addressing NMFS comments must be
submitted within 30 days after receipt of comments. Specifically, the
report must include:
(1) Dates and times (begin and end) of all marine mammal
monitoring;
(2) Construction activities occurring during each daily observation
period, including how many and what type of piles were driven or
removed and by what method (i.e., impact or vibratory);
(3) Environmental conditions during monitoring periods (at
beginning and end of observer shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance (if less
than the harassment zone distance);
(4) The number of marine mammals observed, by species, relative to
the pile location and if pile driving or removal was occurring at time
of sighting;
(5) Age and sex class, if possible, of all marine mammals observed;
(6) Observer locations during marine mammal monitoring;
(7) Distances and bearings of each marine mammal observed to the
pile being driven or removed for each sighting (if pile driving or
removal was occurring at time of sighting);
(8) Description of any marine mammal behavior patterns during
observation, including direction of travel and estimated time spent
within the Level A and Level B harassment zones while the source was
active;
(9) Number of marine mammals detected within the harassment zones,
by species;
(10) Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting behavior of the animal, if
any;
(11) Description of attempts to distinguish between the number of
individual animals taken and the number of incidences of take, such as
ability to track groups or individuals; and
(12) Estimated percentage of the Level B harassment zone that was
not visible.
(g) In the event that personnel involved in the construction
activities discover an injured or dead marine mammal, the Navy shall
report the incident to the Office of Protected Resources (OPR) (301-
427-8401), NMFS and to the Greater Atlantic Region New England/Mid-
Atlantic Regional Stranding Coordinator as soon as feasible. If the
death or injury was clearly caused by the specified activity, the Navy
must immediately cease the specified activities until NMFS is able to
review the circumstances of the incident and determine what, if any,
additional measures are appropriate to ensure compliance with the terms
of the authorization. The Navy must not resume their activities until
notified by NMFS.
(1) The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the
animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if
the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s);
and
(vi) General circumstances under which the animal was discovered.
(2) [Reserved]

Sec. 218.7 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these
regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Navy must
apply for and obtain a modification of the LOA as described in Sec.
218.8.
(e) The LOA shall set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA 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 an LOA shall be published in
the Federal Register within 30 days of a determination.

Sec. 218.8 Renewals and modifications of Letters of Authorization.

(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
218.7 for the activity identified in Sec. 218.1(a) 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, and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting that do not change the findings made for the regulations or
result in no more than a minor change in the total estimated number of
takes (or distribution by species or years), NMFS may publish a

[[Page 24359]]

notice of proposed LOA in the Federal Register, including the
associated analysis of the change, and solicit public comment before
issuing the LOA.
(c) An LOA issued under Sec. 216.106 of this chapter and Sec.
218.7 for the activity identified in Sec. 218.1(a) may be modified by
NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with Navy regarding
the practicability of the modifications) if doing so creates a
reasonable likelihood of more effectively accomplishing the 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; and
(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) 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. 218.7, a LOA may be modified without prior notice or
opportunity for public comment. Notice would be published in the
Federal Register within 30 days of the action.

Sec. 218.9 [Reserved]

[FR Doc. 2021-09512 Filed 5-5-21; 8:45 am]
BILLING CODE 3510-22-P

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