Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction at Naval Station Newport in Newport, Rhode Island, 71162-71180 [2021-27133]
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Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations
evaluated toxicology and residue data
for apple and tea submitted by Nichino
in September 2019. JMPR proposed an
MRL level of 80 ppm for tea, dried
(Pesticide Residues in Food 2019—Joint
FAO/WHO Meeting on Pesticide
Residues, pg 1620–1622; https://
www.fao.org/3/ca7455en/
ca7455en.pdf). The U.S. tolerance of 80
ppm for residues of pyflubumide in/on
tea, dried is harmonized with the MRL
proposed by JMPR.
C. Revisions to Petitioned-For
Tolerances
The petition requested tolerances for
residues of pyflubumide in or on tea,
dried at 70 ppm. EPA is establishing the
tolerance for residues of pyflubumide in
or on tea, dried at 80 ppm. Two of the
submitted field residue trials were
conducted at half the label rate. EPA
normalized those resulting residues to a
1X rate using proportionality and used
the Organization for Economic Cooperation and Development (OECD)
MRL calculation procedures, which
resulted in a tolerance level of 80 ppm
for tea, dried. EPA is also establishing
a tolerance for tea, instant, which is
another processed commodity of tea,
plucked leaves, and EPA has
determined that the same tolerance of
80 ppm is appropriate for instant tea.
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V. Conclusion
Therefore, tolerances are established
for residues of pyflubumide, including
its metabolites and degradates, in or on
tea, dried at 80 ppm and tea, instant at
80 ppm.
VI. Statutory and Executive Order
Reviews
This action establishes tolerances
under FFDCA section 408(d) in
response to a petition submitted to the
Agency. The Office of Management and
Budget (OMB) has exempted these types
of actions from review under Executive
Order 12866, entitled ‘‘Regulatory
Planning and Review’’ (58 FR 51735,
October 4, 1993). Because this action
has been exempted from review under
Executive Order 12866, this action is
not subject to Executive Order 13211,
entitled ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001) or Executive
Order 13045, entitled ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997). This action does not
contain any information collections
subject to OMB approval under the
Paperwork Reduction Act (PRA) (44
U.S.C. 3501 et seq.), nor does it require
any special considerations under
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Executive Order 12898, entitled
‘‘Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’ (59 FR 7629, February 16,
1994).
Since tolerances and exemptions that
are established on the basis of a petition
under FFDCA section 408(d), such as
the tolerances in this final rule, do not
require the issuance of a proposed rule,
the requirements of the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et
seq.), do not apply.
This action directly regulates growers,
food processors, food handlers, and food
retailers, not States or Tribes, nor does
this action alter the relationships or
distribution of power and
responsibilities established by Congress
in the preemption provisions of FFDCA
section 408(n)(4). As such, the Agency
has determined that this action will not
have a substantial direct effect on States
or Tribal Governments, on the
relationship between the National
Government and the States or Tribal
Governments, or on the distribution of
power and responsibilities among the
various levels of government or between
the Federal Government and Indian
Tribes. Thus, the Agency has
determined that Executive Order 13132,
entitled ‘‘Federalism’’ (64 FR 43255,
August 10, 1999) and Executive Order
13175, entitled ‘‘Consultation and
Coordination with Indian Tribal
Governments’’ (65 FR 67249, November
9, 2000) do not apply to this action. In
addition, this action does not impose
any enforceable duty or contain any
unfunded mandate as described under
Title II of the Unfunded Mandates
Reform Act (UMRA) (2 U.S.C. 1501 et
seq.).
This action does not involve any
technical standards that would require
Agency consideration of voluntary
consensus standards pursuant to section
12(d) of the National Technology
Transfer and Advancement Act
(NTTAA) (15 U.S.C. 272 note).
VII. Congressional Review Act
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This action is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 180
Environmental protection,
Administrative practice and procedure,
Agricultural commodities, Pesticides
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and pests, Reporting and recordkeeping
requirements.
Dated: December 9, 2021.
Edward Messina,
Director, Office of Pesticide Programs.
Therefore, for the reasons stated in the
preamble, EPA is amending 40 CFR
chapter I as follows:
PART 180—TOLERANCES AND
EXEMPTIONS FOR PESTICIDE
CHEMICAL RESIDUES IN FOOD
1. The authority citation for part 180
continues to read as follows:
■
Authority: 21 U.S.C. 321(q), 346a and 371.
2. Add § 180.722 to subpart C to read
as follows:
■
§ 180.722 Pyflubumide; tolerances for
residues.
(a) General. Tolerances are
established for residues of pyflubumide,
including its metabolites and
degradates, in or on the commodities in
Table 1 to this paragraph (a).
Compliance with the tolerance levels
specified in Table 1 to this paragraph (a)
is to be determined by measuring
residues of pyflubumide (1,3,5trimethyl-N-(2-methyl-1-oxopropyl)-N[3-(2-methylpropyl)-4-[2,2,2-trifluoro-1methoxy-1(trifluoromethyl)ethyl]phenyl]-1Hpyrazole-4-carboxamide) in or on the
following commodities:
TABLE 1 TO PARAGRAPH (a)
Commodity
Parts per
million
Tea, dried ...................................
Tea, instant .................................
80
80
(b)–(d) [Reserved].
[FR Doc. 2021–27147 Filed 12–14–21; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
[Docket No. 211208–0254]
RIN 0648–BK69
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to U.S. Navy
Construction at Naval Station Newport
in Newport, Rhode Island
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
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Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
NMFS, upon request of the
U.S. Navy (Navy), hereby issues
regulations to govern the unintentional
taking of marine mammals incidental to
construction activities for bulkhead
replacement and repairs at Naval
Station Newport (NAVSTA Newport)
over the course of five years (2022–
2027). 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 May 15, 2022,
through May 14, 2027.
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-newportrhode-island. In case of problems
accessing these documents, please call
the contact listed below.
FOR FURTHER INFORMATION CONTACT:
Stephanie Egger, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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 Marine Mammal
Protection Act (MMPA) (16 U.S.C. 1361
et seq.) to allow for the authorization of
take by Level A and Level B harassment
incidental to the Navy’s construction
activities, including impact and
vibratory pile driving. Please see
Background below for definitions of
harassment.
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Legal Authority for the Planned 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
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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
effecting the ‘‘least practicable adverse
impact’’ on the affected species or
stocks and their habitat (see the
discussion below in the Mitigation
section), as well as monitoring and
reporting requirements. Section
101(a)(5)(A) of the MMPA and the
implementing regulations at 50 CFR part
216, subpart R 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), and if the permissible
methods of taking and requirements
pertaining to the mitigation, monitoring
and reporting of the takings are set forth.
NMFS has defined ‘‘negligible
impact’’ in 50 CFR 216.103 as an impact
resulting from the specified activity that
cannot be reasonably expected to, and is
not reasonably likely to, adversely affect
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the species or stock through effects on
annual rates of recruitment or survival.
Except with respect to certain
activities not pertinent here, the MMPA
defines ‘‘harassment’’ as any act of
pursuit, torment, or annoyance which (i)
has the potential to injure a marine
mammal or marine mammal stock in the
wild (Level A harassment); or (ii) has
the potential to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of behavioral
patterns, including, but not limited to,
migration, breathing, nursing, breeding,
feeding, or sheltering (Level B
harassment).
Summary of Request
In July 2020, NMFS received a request
from the Navy requesting authorization
to take small numbers of seven species
of marine mammals incidental to
construction activities including
bulkhead replacement and repairs at
NAVSTA Newport. NMFS reviewed the
Navy’s application, and the Navy
provided responses addressing NMFS’
questions and comments on February
22, 2021. The application was deemed
adequate and complete and published
for public review and comment on May
19, 2021 (86 FR 27069). We did not
receive substantive comments on that
notice and request for comments and
information. We subsequently
published a proposed rule in the
Federal Register on October 13, 2021
(86 FR 56857). 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 requested authorization to
take a small number of seven species of
marine mammals by Level A and B
harassment. Neither the Navy nor NMFS
expects serious injury or mortality to
result from this activity. The regulations
are valid for five years (2022–2027).
Description of Specified Activity
The Navy plans to replace or repair
several sections of deteriorating,
unstable, hazardous, and eroding
bulkhead, sheet pile, and revetment
(approximately 2,730 total linear feet
(ft)) along the Coddington Cove
waterfront of NAVSTA Newport. Over
time, the existing storm sewer systems
and bulkheads along the Coddington
Cove waterfront have severely degraded
due to erosion from under-capacity
stormwater system piping and aging
infrastructure. This impacts the ability
of the installation to minimize shoreline
erosion and minimize safety risks from
associated upland subsidence, while
also maintaining potential berthing
space. The Navy plans to conduct
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necessary work, including impact and
vibratory pile driving, to repair and
replace bulkheads over five years. The
specified activities may occur at any
time during the 5-year period of validity
of the regulations. The Navy expects
pile driving to occur on approximately
222 non-consecutive in-water pile
driving days over the five-year duration.
Pile driving activities are anticipated to
be completed within 4 years. However,
because the planned construction is
dependent on the allocation of funding,
the Navy requested that the LOA be
issued for the entire 5-year construction
period to ensure flexibility in the project
schedule. Table 1 provides the
anticipated construction schedule for
the planned activities.
TABLE 1—CODDINGTON COVE BULKHEAD REPLACEMENT AND REPAIR SUMMARY SCHEDULE
Section ID
Bulkhead
replacement
(lf)
Revetment
replacement
(lf)
S45 ..............................................
S366 ............................................
Pier 1 ...........................................
LNG .............................................
S499/Pier 2 .................................
S50 ..............................................
310 ...............
90 .................
100 ...............
650 ...............
510 ...............
730 (repair) ..
250
0
0
0
90
0
Dredging
volume
(cy)
Dredging
area
(ft2)
Outfalls
replaced
Yes (3) .............
Yes (1) .............
No ....................
Yes (2) .............
Yes (5) .............
Yes (2) .............
8,400
1,350
1,500
9,750
9,000
0
Construction start
date
650
100
120
760
700
0
May 15, 2022.
October 15, 2023.
October 15, 2023.
October 15, 2024.
October 15, 2025.
October 15, 2026.
Source: NAVFAC Mid-Atlantic 2018.
The specific sections planned for
bulkhead repair and replacement are
described in detail in the proposed rule
(86 FR 56857; October 13, 2021) and are
summarized in Table 2 below.
TABLE 2—BULKHEAD PILE INSTALLATION ACTIVITY
Facility
Method of pile
driving
S45 ...................
Vibratory/Impact
S366 .................
Impact ................
Vibratory ............
Vibratory/Impact
S499/Pier 2 ......
Impact ................
Vibratory ............
Vibratory/Impact
LNG ..................
Impact ................
Vibratory ............
Vibratory/Impact
Pier 01 ..............
Vibratory ............
Vibratory/Impact
Vibratory ............
Number of
sheets (pairs)/
piles
Pile type
Pile size
Z-shaped Steel
Sheet Pile.
Steel Pipe Pile ...
Steel H-pile ........
Z-shaped Steel
Sheet Pile.
Steel pipe pile ....
Steel H-pile ........
Z-shaped Steel
Sheet Pile.
Steel Pipe Pile ...
Steel H-pile ........
Z-shaped Steel
Sheet Pile.
Steel H-pile ........
Z-shaped Steel
Sheet Pile.
Steel H-pile ........
3.75 ft per pair/
22.5-in each.
30-in ...................
14-in ...................
3.75 ft per pair/
22.5-in each.
30-in diameter ....
14-in ...................
5.25 ft per pair/
31.5-in each.
42-in ...................
14-in ...................
3.75 ft per pair/
22.5-in each.
14-in ...................
3.75 ft per pair/
22.5-in each.
14-in ...................
Total sheet piles pairs/pipe and H-piles installed ......................................
Total days pile driving ........................................................................
Maximum
number
of piles
installed
per day
Vibratory
driving
minutes
per pile
Strikes per pile
Maximum
number of
pile driving
days
80 pair ................
530
13
10
27
4 .........................
76 .......................
14 pair ................
530
NA
530
NA
10
13
2
12
10
4
13
5
15 .......................
14 .......................
70 pair ................
530
NA
530
NA
10
13
2
12
8
15
3
23
35 .......................
79 .......................
173 pair ..............
530
NA
530
NA
10
13
4
12
10
18
14
58
164 .....................
27 pair ................
NA
530
10
13
12
10
28
9
26 .......................
NA
10
12
5
........................
........................
........................
222
364/413.
............................
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Legend: NA = not applicable, ft = foot; Start date of in-water work and duration are to be determined.
Since the proposed rule, which
contains a detailed description of the
planned construction, was published
(86 FR 56857; October 13, 2021), no
changes have been made to the planned
activities. Therefore, a detailed
description is not provided here. Please
refer to the proposed rule for further
description of the specific activity.
Comments and Responses
We published a proposed rule in the
Federal Register on October 13, 2021
(86 FR 56857). During the 30-day
comment period, we received six
comments from private citizens, with
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five expressing general support for the
project and one expressing general
opposition to the project.
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
Stock Assessment Reports (SARs;
https://www.fisheries.noaa.gov/
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national/marine-mammal-protection/
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 3 lists all species or stocks for
which take is expected and planned for
authorization, 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 (2021).
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PBR is defined by the MMPA as the
maximum number of animals, not
including natural mortalities, that may
be removed from a marine mammal
stock while allowing that stock to reach
or maintain its optimum sustainable
population (as described in NMFS’
SARs). While no mortality is anticipated
or authorized here, 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’ 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. 2021).
All values presented in Table 3 are the
most recent available at the time of
publication and are available in the
2020 SARs (Hayes et al. 2021) or the
2021 draft SARS, available at https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/marinemammal-stock-assessment-reports.
TABLE 3—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
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
Family Delphinidae:
Atlantic white-sided dolphin
Common dolphin ................
Family Phocoenidae (porpoises):
Harbor porpoise ..................
Lagenorhynchus acutus
Delphinus delphis ...........
Western North Atlantic ..............
Western North Atlantic ..............
Phocoena phocoena ......
Gulf of Maine/Bay of Fundy ......
-, -; N
-, -; N
93,233 (0.71; 54,443; 2016) .....
172,974 (0.21; 145,216; 2016)
544
1,452
I-, -; N I95,543 (0.31; 74,043; 2016) ..... I
851
27
390
I
164
Order Carnivora—Superfamily Pinnipedia
Family Phocidae (earless seals):
Harbor seal .........................
Gray seal ............................
Harp seal ............................
Phoca vitulina .................
Halichoerus grypus .........
Pagophilus groenlandicus
Western North Atlantic ..............
Western North Atlantic ..............
Western North Atlantic ..............
-,-; N
-,-; N
-,-; N
Hooded seal .......................
Cystophora cristata ........
Western North Atlantic ..............
I-,-; N
I
61,336(0.08/; 57,637, 2018) .....
27,300 (0.22, 22,785, 2016) 4 ...
7,600,000 (unk,7,100.000,
2019).
593,500 .....................................
1,729
1,389
426,000
I unknown I
339
4,453
178,573
1,680
1 —Endangered
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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’ 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.
4 —This abundance value and the associated PBR value reflect the US population only. Estimated abundance for the entire Western North Atlantic stock, including
animals in Canada, is 451,600. The annual M/SI estimate is for the entire stock.
As indicated above, all seven species
in Table 3 temporally and spatially cooccur with the activity to the degree that
take is reasonably likely to occur, and
we have authorized take. Several
depleted species of whales occur
seasonally in the waters off Rhode
Island including Humpback (Megaptera
novaeangliae), Fin (Balaenoptera
physalus), Sei (Balaenoptera borealis),
Sperm (Physeter macrocephalus) and
North Atlantic Right whales (Eubaleana
glacialis). These whales are seasonally
present in New England waters;
however, due to the depths of
Narragansett Bay and near shore
location of the project area, these listed
marine mammals are unlikely to occur.
Therefore, no takes were requested and
none are anticipated or planned for
authorization by NMFS and they are not
discussed further.
A detailed description of the species
likely to be affected by the Navy’s
project, including brief introductions to
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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 (86
FR 56857; October 13, 2021). We are not
aware of any changes in the status of
these species and stocks since that time.
Please refer to the proposed rule for
these descriptions (86 FR 56857;
October 13, 2021).
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
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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., low-frequency
cetaceans). Subsequently, NMFS (2018)
described generalized hearing ranges for
these marine mammal hearing groups.
Generalized hearing ranges were chosen
based on the approximately 65 decibel
(dB) threshold from the normalized
composite audiograms, with the
exception for lower limits for lowfrequency cetaceans where the lower
bound was deemed to be biologically
implausible, thus the lower bound from
Southall et al. (2007) is retained. Marine
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mammal hearing groups and their
associated hearing ranges are provided
in Table 4.
TABLE 4—MARINE MAMMAL HEARING GROUPS
[NMFS, 2018]
Generalized hearing
range *
Hearing group
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).
khammond on DSKJM1Z7X2PROD with RULES
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
(Hemila¨ et al. 2006; Kastelein et al.
2009; Reichmuth and Holt, 2013).
For more detail concerning these
groups and associated frequency ranges,
please see NMFS (2018) for a review of
available information. Seven marine
mammal species (three cetacean and
four phocid pinniped species) have the
reasonable potential to co-occur with
the planned construction activities.
Please refer to Table 3. Of the cetacean
species that may be present, two are
classified as a mid-frequency cetacean
(i.e., dolphins), 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
project area. The proposed rule (86 FR
56857; October 13, 2021) 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 applies to this
final rule and is not repeated here;
please refer to the proposed rule (86 FR
56857; October 13, 2021).
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
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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 (86 FR 56857; October 13,
2021).
Estimated Take
This section provides an estimate of
the number of incidental takes
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 A
and B harassment, in the form of
disruption of behavioral patterns and
potential TTS and PTS for individual
marine mammals resulting from
exposure to pile driving and removal.
As described previously, no serious
injury or mortality is anticipated or
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
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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—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
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noise above received levels of 120 dB re
1 mPa (rms) (reference pressure
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 level
of 120 and 160 dB re 1 mPa (rms) is
applicable.
Level A harassment—NMFS’
Technical Guidance for Assessing the
Effects of Anthropogenic Sound on
Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies
dual criteria to assess auditory injury
(Level A harassment) to five different
marine mammal groups (based on
hearing sensitivity) as a result of
exposure to noise. The technical
guidance identifies the received levels,
or thresholds, above which individual
marine mammals are predicted to
experience changes in their hearing
sensitivity for all underwater
anthropogenic sound sources, and
reflects the best available science on the
potential for noise to affect auditory
sensitivity. The technical guidance does
this by identifying threshholds in the
follow manner:
D Dividing sound sources into two
groups (i.e., impulsive and nonimpulsive) based on their potential to
affect hearing sensitivity;
D Choosing metrics that best address
the impacts of noise on hearing
sensitivity, i.e., sound pressure level
(peak SPL) and sound exposure level
71167
(SEL) (also accounting for duration of
exposure); and
D Dividing marine mammals into
hearing groups and developing auditory
weighting functions based on the
science supporting the fact that not all
marine mammals hear and use sound in
the same manner.
These thresholds were developed by
compiling and synthesizing the best
available science and are provided in
Table 5 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.
The Navy’s planned construction
includes the use of impulsive (impact
pile driving) and non-impulsive
(vibratory pile driving) sources.
TABLE 5—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
217
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.
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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
transmission loss coefficient.
Sound Propagation
Transmission loss (TL) is the decrease
in acoustic intensity as an acoustic
pressure wave propagates out from a
source. TL parameters vary with
frequency, temperature, sea conditions,
current, source and receiver depth,
water depth, water chemistry, and
bottom composition and topography.
The general formula for underwater TL
is:
TL = B * log10(R1/R2),
Where
B = transmission loss coefficient (assumed to
be 15)
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R1 = the distance of the modeled SPL from
the driven pile, and
R2 = the distance from the driven pile of the
initial measurement.
This formula neglects loss due to
scattering and absorption, which is
assumed to be zero here. The degree to
which underwater sound propagates
away from a sound source is dependent
on a variety of factors, most notably the
water bathymetry and presence or
absence of reflective or absorptive
conditions, including in-water
structures and sediments. Spherical
spreading occurs in a perfectly
unobstructed (free-field) environment
not limited by depth or water surface,
resulting in a 6 dB reduction in sound
level for each doubling of distance from
the source (20*log(range)). Cylindrical
spreading occurs in an environment in
which sound propagation is bounded by
the water surface and sea bottom,
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resulting in a reduction of 3 dB in sound
level for each doubling of distance from
the source (10*log(range)). As is
common practice in coastal waters, here
we assume practical spreading (4.5 dB
reduction in sound level for each
doubling of distance). Practical
spreading is a compromise that is often
used under conditions where water
depth increases as the receiver moves
away from the shoreline, resulting in an
expected propagation environment that
would lie between spherical and
cylindrical spreading loss conditions.
Practical spreading was used to
determine sound propagation for this
project.
Sound Source Levels
The intensity of pile driving sounds is
greatly influenced by factors such as the
type of piles, hammers, and the physical
environment in which the activity takes
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place. There are sound source level
(SSL) measurements available for
certain pile types and sizes from the
similar environments from other Navy
pile driving projects that were evaluated
and used as proxy sound source levels
to determine reasonable sound source
levels likely to result from the pile
driving and removal activities (Table 6).
Some of the proxy source levels are
expected to be conservative, as the
values are from larger pile sizes.
TABLE 6—UNDERWATER NOISE SOUND SOURCE LEVELS MODELED FOR IMPACT AND VIBRATORY PILE DRIVING
Pile size, type
Sound pressure levels (SPL) or sound exposure
level (SEL) at 10 m distance
Method
Peak SPL
42-in Diameter Steel Pipe 1 .....................................................
30-in Diameter Steel Pipe 2 .....................................................
14-in Steel H-pile 3 ..................................................................
31.5-in Z-shaped Steel Sheet 4 ...............................................
31.5-in Z-shaped Steel Sheet 5 ...............................................
22.5-in Z-shaped Steel Sheet 3 ...............................................
22.5-in Z-shaped Steel Sheet 5 ...............................................
Impact ....................................
Impact ....................................
Vibratory .................................
Impact ....................................
Vibratory .................................
Impact ....................................
Vibratory .................................
RMS SPL
211
211
NA
211
NA
205
NA
SEL
196
196
158
196
163
190
163
181
181
158
181
163
180
163
Legend: All sound pressure levels (SPLs) are unattenuated; dB = decibels; rms = root mean square, SEL = sound exposure level; NA = Not
applicable; NR = Not reported.
Notes:
1 Navy pers comm. 2021.
2 Navy San Diego Bay Acoustic Compendium (NAVFAC SW 2020).
3 Caltrans 2015.
4 A proxy value for 31-in sheet piles could not be found for impact driving so the proxy for a 30-in steel pipe pile has been used from NAVFAC
SW (2020). This value was also used for Z-shaped steel sheets for the Navy’s Dry Dock 1 Modification and Expansion, Portsmouth Naval Shipyard, Kittery, Maine 2021 IHA (86 FR 14598; March 17, 2021).
5 For vibratory driving of 31-in sheet piles and 22.5-in Z-shaped steel sheet piles, 163 dB SPL was used based on measurements conducted
by the Naval Facilities Engineering Command Mid-Atlantic (NAVFAC Mid-Atlantic) in the Technical Memorandum Nearshore Marine Mammal
Surveys, Portsmouth Naval Shipyard (2018).
For 42-in steel piles, a SSL of 181 dB
SEL was used for impact driving and is
similar to SSL of 180 dB SEL for 36-in
piles in CALTRANS (2015). There are
no SSL values for 42-in piles in
CALTRANS, the nearest values are for
36-in and 60-in steel pipe piles. For 30in steel pipe piles, an SSL of 181 dB SEL
was used for impact pile driving as a
proxy from the Navy’s San Diego Bay
Acoustic Compendium (NAVFAC SW
2020) (the median value from the
greatest sound levels recorded for 30-in
steel piles). The SSL used for 30-in steel
piles during impact pile driving is also
more conservative than the SSL of 177
dB SEL for 30-in steel piles in
CALTRANS (2015). For 31.5-in sheet
piles, an SSL of 181 dB SEL was used
for impact pile driving as a proxy from
30-in steel pipe piles (NAVFAC SW
2020), which is also slightly more
conservative than an SSL of 180 dB SEL
for 24-in piles in CALTRANS (2015) (no
larger sheet piles are described in
CALTRANS 2015). During vibratory pile
driving of 31.5-in sheet piles, the Navy
used an SSL of 163 dB SPL, which is
also more conservative than an SSL of
160 dB SPL for 24-in sheet piles in
CALTRANS (2015) (no large sheet piles
are described in CALTRANS 2015). For
22.5-in Z-shaped steel sheet piles, an
SSL of 180 dB SEL was used for impact
pile driving and is also equivalent to 24in sheet piles in CALTRANS (2015).
During vibratory pile driving, an SSL of
163 dB SPL is a proxy from NAVFAC
Mid-Atlantic (2018) and is also more
conservative than 24-in sheet piles in
CALTRANS (2015) where the SSL is 160
dB SPL for 24-in sheet piles (no larger
sheet piles are described in CALTRANS
(2015). For 14-in steel H-piles, an SSL
of 158 dB SPL was used from
CALTRANS (2015).
Level A Harassment
In conjunction with the NMFS
Technical Guidance (2018), in
recognition of the fact that ensonified
area/volume could be more technically
challenging to predict because of the
duration component in the new
thresholds, NMFS developed a User
Spreadsheet that includes tools to help
predict a simple isopleth that can be
used in conjunction with marine
mammal density or occurrence to help
predict takes. We note that, because of
some of the assumptions included in the
methods used for these tools, we
anticipate that isopleths produced are
typically going to be overestimates of
some degree, which may result in some
degree of overestimation of Level A
harassment take. However, these tools
offer the best way to predict appropriate
isopleths when more sophisticated 3D
modeling methods are not available, and
NMFS continues to develop ways to
quantitatively refine these tools and will
qualitatively address the output where
appropriate. For stationary sources
(such as from impact and vibratory pile
driving), the NMFS User Spreadsheet
(2020) predicts the closest distance at
which, if a marine mammal remained at
that distance the whole duration of the
activity, it would not incur PTS. Inputs
used in the User Spreadsheet (Tables 7
and 8), and the resulting isopleths are
reported below (Table 9).
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TABLE 7—NMFS TECHNICAL GUIDANCE (2020) USER SPREADSHEET INPUT TO CALCULATE PTS ISOPLETHS FOR
VIBRATORY PILE DRIVING
[User spreadsheet input—vibratory pile driving spreadsheet Tab A.1 vibratory pile driving used]
14-in steel Hpile
Source Level (RMS SPL) ............................................................................................................
Weighting Factor Adjustment (kHz) .............................................................................................
Number of piles within 24-hr period ............................................................................................
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158
2.5
12
15DER1
22.5-in Zshaped sheet
piles
163
2.5
10
31.5-in Zshaped sheet
piles
163
2.5
8
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71169
TABLE 7—NMFS TECHNICAL GUIDANCE (2020) USER SPREADSHEET INPUT TO CALCULATE PTS ISOPLETHS FOR
VIBRATORY PILE DRIVING—Continued
[User spreadsheet input—vibratory pile driving spreadsheet Tab A.1 vibratory pile driving used]
22.5-in Zshaped sheet
piles
14-in steel Hpile
Duration to drive a single pile (min) ............................................................................................
Propagation (xLogR) ....................................................................................................................
Distance of source level measurement (m) ................................................................................
10
15
10
31.5-in Zshaped sheet
piles
13
15
10
13
15
10
TABLE 8—NMFS TECHNICAL GUIDANCE (2020) USER SPREADSHEET INPUT TO CALCULATE PTS ISOPLETHS FOR IMPACT
PILE DRIVING
[User spreadsheet input—Impact pile driving spreadsheet Tab E.1 impact pile driving used]
22-in
Z-shaped piles
31.5-in
Z-shaped piles
180
2
530
10
15
10
181
2
530
8
15
10
Source Level (Single Strike/shot SEL) ............................................................
Weighting Factor Adjustment (kHz) .................................................................
Number of strikes per pile ...............................................................................
Number of piles per day ..................................................................................
Propagation (xLogR) ........................................................................................
Distance of source level measurement (m) .....................................................
30-in pile
42-in pile
181
2
530
2
15
10
181
2
530
4
15
10
TABLE 9—NMFS TECHNICAL GUIDANCE (2020) USER SPREADSHEET OUTPUTS TO CALCULATE LEVEL A HARASSMENT
PTS ISOPLETHS
User spreadsheet output
PTS isopleths (m)
Level A harassment
Activity
Sound source level at 10 m
Low-frequency
cetaceans
I
Mid-frequency
cetaceans
I
High-frequency
cetaceans
I
Phocid
I
Otariid
Vibratory Pile Driving/Removal
14-in H-pile ................
22.5-in Z-shaped
sheet piles.
31.5-in Z-shaped
sheet piles.
158 SPL .....................................
163 SPL .....................................
6.8
15.5
163 SPL .....................................
13.4
0.6
1.4
10.1
23.0
4.2
9.4
1.2
19.8
8.1
I
0.3
0.7
0.6
I
Impact Pile Driving
22.5-in Z-shaped
sheet piles.
31.5-in Z-shaped
sheet piles.
30-in pile ...................
42-in pile ...................
180 SEL/190 SPL ......................
1,915.4
68.1
2,281.5
1,025.0
74.6
181 SEL/196 SPL ......................
1,942.5
68.4
2,292.4
1,029.9
75.0
181 SEL/196 SPL ......................
181 SEL/196 SPL ......................
763.7
1,212
27.2
43.1
909.7
1,444.1
408.7
648.8
29.8
47.2
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Level B Harassment
Utilizing the practical spreading
model, NMFS determined underwater
noise will fall below the behavioral
effects threshold of 120 dB rms for
marine mammals at the distances shown
in Table 10 for vibratory pile driving.
With these radial distances, the largest
Level B harassment zone calculated was
7,356 m for sheet piles. However, this
distance would be truncated due to the
presence of intersecting land masses.
For calculating the Level B harassment
zone for impact driving, the practical
spreading loss model was used with a
behavioral threshold of 160 dB rms. The
maximum radial distance of the Level B
harassment zone for impact piling
equaled 2,512 m for 30-in piles, 42-in
piles and 31.5-in sheet piles. Table 10
below provides all Level B harassment
radial distances (m) and ensonified
areas (km2) during the Navy’s planned
activities.
TABLE 10—DISTANCES TO RELEVANT BEHAVIORAL ISOPLETHS AND ENSONIFIED AREAS
Year
(section)
Activity
Received level at 10 m
Vibratory Pile Driving
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Level B harassment
zone
(m/km2) *
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TABLE 10—DISTANCES TO RELEVANT BEHAVIORAL ISOPLETHS AND ENSONIFIED AREAS—Continued
Year
(section)
Year
Year
Year
Year
Year
Year
Year
Year
Year
1
2
3
4
1
2
3
4
4
Activity
(S45) ........................................
(S366); Year 2 (Pier 1) ............
(LNG) .......................................
(S499/Pier 2) ............................
(S45) ........................................
(S366); Year 2 (Pier 1) ............
(LNG) .......................................
(S499/Pier 2) ............................
(S499/Pier 2) ............................
Level B harassment
zone
(m/km2) *
Received level at 10 m
14-in H-piles ........................................
14-in H-piles ........................................
14-in H-piles ........................................
14-in H-piles ........................................
22.5-in Z-shaped sheet piles ...............
22.5-in Z-shaped sheet piles ...............
22.5-in Z-shaped sheet piles ...............
22.5-in Z-shaped sheet piles ...............
31.5-in Z-shaped sheet piles ...............
158
158
158
158
163
163
163
163
163
SPL
SPL
SPL
SPL
SPL
SPL
SPL
SPL
SPL
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
...............................................
3,415
3,415
3,415
3,415
7,356
7,356
7,356
7,356
7,356
m/5.6 km2.
m/5.8 km2.
m/5.8 km2.
m/5.7 km2.
m/7.9 km2.
m/8.3 km2.
m/7.5 km2.
m/7.5 km2.
m/9.5.km2.
1,000
1,000
1,000
2,512
2,512
2,512
2,512
m/1.1
m/1.3
m/0.7
m/3.8
m/3.8
m/4.0
m/3.8
Impact Pile Driving
Year
Year
Year
Year
Year
Year
Year
1
2
3
4
1
2
4
(S45) ........................................
(S366); Year 2 (Pier 1) ............
(LNG) .......................................
(S499/Pier 2) ............................
(S45) ........................................
(S366) ......................................
(S499/Pier 2) ............................
22.5-in Z-shaped sheet piles ...............
22.5-in Z-shaped sheet piles ...............
22.5-in Z-shaped sheet piles ...............
31.5-in Z-shaped sheet piles ...............
30-in piles ............................................
30-in piles ............................................
42-in piles ............................................
180
180
180
181
181
181
181
SEL/190
SEL/190
SEL/190
SEL/196
SEL/196
SEL/196
SEL/196
SPL
SPL
SPL
SPL
SPL
SPL
SPL
................................
................................
................................
................................
................................
................................
................................
km2.
km2.
km2.
km2.
km2.
km2.
km2.
* Note: Distances to the Level B harassment zone may vary slightly of the same pile size, due to the section of work being conducted and how
the produced sound would be directed (see Figures 6–1 through 6–4 of the Navy’s application).
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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.
Potential exposures to impact pile and
vibratory pile driving noise for each
acoustic threshold were estimated using
marine mammal density estimates (N)
from the Navy Marine Species Density
Database NMSDD (Navy 2017) for which
data of monthly densities of species
were evaluated in terms of minimum,
maximum, and average annual densities
within Narragansett Bay and multiplied
by the zone of influence (ZOI) and the
maximum days of pile driving (take
estimate = N × ZOI × days of pile
driving). The pile type, size, and
installation method that produce the
largest ZOI were used to estimate
exposure of marine mammals to noise
impacts. We describe how the
information provided above is brought
together to produce a quantitative take
estimate in the species sections below.
Atlantic White-Sided dolphins
Atlantic white-sided dolphins occur
seasonally, occurring primarily along
the continental shelf with occasional
unconfirmed opportunistic sightings in
Narragansett Bay in fall and winter. The
most recent observation of a pod of
dolphins in Narragansett Bay was in
October 2007 (NUWC Division, 2011).
Construction activity could occur at any
time of year and would be short-term
and intermittent. Therefore, the average
species density was determined to be
appropriate for estimating takes of
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Atlantic white-sided dolphin. Based on
density data for Narragansett Bay (Navy
2017), the average density of Atlantic
white-sided dolphin was determined to
be 0.003/km2. This density was used to
estimate abundance of animals that
could be present in the area for
exposure. Using this information, 1 take
was calculated for Years 1, 3, and 4 and
0 takes in Year 2 (Table 11). However,
the annual take by Level B harassment
for Atlantic white-sided dolphins has
been increased to the average group size
(16) (NAVSEA NUWC 2017) for Years 1,
3, and 4, because the calculated annual
take is below the average group size.
Therefore, the Navy requested, and
NMFS authorized, 16 takes annually in
Years 1, 3, and 4 (0 in Year 2) for a total
of 48 takes by Level B harassment of
Atlantic white-sided dolphin (Table 11).
No takes by Level A harassment of
Atlantic white-sided dolphin are
anticipated to occur or are authorized.
Because this species’ regular occurrence
is in much deeper waters than the
extent of the ZOI (Hayes et al., 2019),
expected takes of this species are
extremely low.
TABLE 11—ESTIMATED TAKE FOR ATLANTIC
WHITE-SIDED DOLPHIN—
Continued
Calculated
level B
harassment
Authorized
level B
harassment
Year 4 (S499/
Pier 2) ...........
1
16
Total ..............
3
48
Construction
year
Common Dolphin
Common dolphins are the most likely
dolphin species to be spotted in
Narragansett Bay, and usually occur in
late fall or winter (Kenney, 2013). The
most recent sighting of a common
dolphin recorded in Narragansett Bay
was in October of 2016 (Hayes et al.,
2019). Construction activity could occur
at any time of year and would be shortterm and intermittent. Based on density
data for Narragansett Bay (NMSDD,
Navy, 2017), the average density of
common dolphin was determined to be
0.011/km2. Using this information, 3
takes by Level B harassment were
calculated for Years 1 and 4, 2 takes for
Year 2 and 6 takes for Year 3 (Table 12).
Because the calculated annual take is
TABLE 11—ESTIMATED TAKE FOR
below the average group size, the annual
ATLANTIC WHITE-SIDED DOLPHIN
take by Level B harassment for common
dolphin has been increased to the
Calculated
Authorized
Construction
average group size (28) (NAVSEA
level
B
level
B
year
harassment harassment NUWC 2017). Therefore, the Navy
requested, and NMFS authorized, 28
Year 1 (S45) .....
1
16 takes annually (with the exception of
Year 2 (S366
Year 2, for which it was doubled to 56
and Pier 01) ..
0
0 takes as a conservative approach to
Year 3 (LNG) ....
1
16 account for more vibratory and impact
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71171
density of harbor porpoise was
determined to be 0.012/km2. Using this
information, 4 takes by Level B
harassment were calculated for Years 1
Calculated
Authorized
Construction
level B
level B
and 4, 2 takes for Year 2, and 7 takes
year
harassment harassment
for Year 3 (Table 13). Because the
Total ..............
14
140 calculated take in Year 2 was less than
the group size, the annual take by Level
B harassment for harbor porpoise has
Harbor Porpoise
been increased to the average group size
Harbor porpoise are not common to
(3) and multiplied by two for 6 takes
Narragansett Bay but may occur,
(NAVSEA NUWC 2017) as a
TABLE 12—ESTIMATED TAKE FOR
especially in winter and spring months
conservative approach to account for
COMMON DOLPHIN
(Kinney 2013). Harbor porpoise is the
more vibratory and impact pile driving
most stranded cetacean in Rhode Island, activities that occur during that year in
Calculated
Authorized
Construction
with a strong seasonal occurrence in the two sections (S366 and Pier 1)).
level B
level B
year
harassment harassment spring. Construction activity could
Therefore, the Navy requested, and
occur at any time of year and would be
NMFS authorized, 4 takes in Years 1
Year 1 (S45) .....
3
28 short-term and intermittent. Therefore,
and 4, 6 takes in Year 2, and 7 takes in
Year 2 (S366
the average species density was
Year 3, and a total of 21 takes by Level
and Pier 01) ..
2
56
determined to be appropriate for
B harassment of harbor porpoise (Table
Year 3 (LNG) ....
6
28
estimating takes of harbor porpoise.
Year 4 (S499/
13). Level A harassment could occur
Pier 2) ...........
3
28 Based on density data for Narragansett
during years 1, 3 and 4 (Table 13).
Bay (NMSDD, Navy 2017), the average
pile driving activities that occur during
that year in two sections (S366 and Pier
1)) for a total of 140 takes by Level B
harassment of common dolphin (Table
12). No takes by Level A harassment of
common dolphin are anticipated to
occur or are authorized. Because this
species’ regular occurrence is in much
deeper waters than the extent of the ZOI
(Hayes et al., 2019), takes of this species
are expected to be extremely low.
TABLE 12—ESTIMATED TAKE FOR
COMMON DOLPHIN—Continued
TABLE 13—ESTIMATED TAKE FOR HARBOR PORPOISE
Authorized
level A
harassment
Construction year
Year
Year
Year
Year
1
2
3
4
Authorized
level B
harassment
(S45) ................................................................................................................................
(S366 and Pier 01) ..........................................................................................................
(LNG) ...............................................................................................................................
(S499/Pier 2) ....................................................................................................................
1
0
2
1
4
2
7
4
4
6
7
4
Total .........................................................................................................................................
4
17
21
Harbor Seal
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Calculated
level B
harassment
Harbor seals are the most common
seal in Narragansett Bay, which is a
well-known winter feeding ground for
the species (Moll et al., 2017). Seals are
commonly observed from late
September through April (Moll et. al.,
2017; DeAngelis, 2020). Of the 22
known haulouts within Narragansett
Bay, The Sisters is the nearest haulout
to the project area (0.9 mi). Harbor seals
are rarely observed at The Sisters
haulout in the early fall (September–
October) but consistent numbers are
regularly observed in mid-November (0–
10 animals). These numbers gradually
increase with peak numbers in the
upper 40s occurring in March, typically
at low tide (DeAngelis, 2020). The
NMSDD (Navy, 2017a) models harbor
and gray seals as a guild due to the
difficulty in distinguishing these species
at sea. Harbor seal is expected to be the
most common pinniped in Narragansett
Bay with year-round occurrence
(Kenney and Vigness-Raposa, 2010).
Therefore, the maximum species density
for the harbor-gray seal guild was
determined to be appropriate for
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estimating takes of harbor seal. Based on
density data for Narragansett Bay (Navy,
2017a), the maximum density of seals
was determined to be 0.623/km2. This
density value is for all seals (harbor and
gray seals as a guild); therefore, this
density value results in some degree of
overestimation when applied to harbor
seals only. The Navy requested and
NMFS authorized a high of 25 takes by
Level A harassment and 353 takes by
Level B harassment during Year 3, and
a low of 13 takes by Level A harassment
and 138 takes by Level B harassment
during Year 2 (Table 14).
TABLE 14—ESTIMATED TAKE FOR
HARBOR SEAL—Continued
Total ...........
Authorized/
calculated
level B
harassment
Authorized
level A
harassment
Construction
year
I
78
I
900
Gray Seal
Based on stranding records, gray seals
are seasonally present in Rhode Island
with the largest populations occurring
from February through June with a
sharp peak in March and April. The
NMSDD (Navy, 2017a) provides
TABLE 14—ESTIMATED TAKE FOR
combined densities for harbor seal and
HARBOR SEAL
gray seal (as discussed above). Gray
seals are the second most likely seal to
Authorized/
Authorized
be observed in Rhode Island waters,
Construction
calculated
level A
year
level B
next to harbor seals, and more of an
harassment harassment
occasional visitor (Kenney, 2020);
therefore, the average species density for
Year 1 (S45) .....
15
188
the harbor-gray seal guild was
Year 2 (S366
and Pier 01) ..
13
138 determined to be appropriate for
Year 3 (LNG) ....
25
353 determining takes of gray seal. Based on
density data for Narragansett Bay (Navy,
Year 4 (S499/
Pier 2) ...........
25
221 2017a), the average density of seals was
determined to be 0.131/km2. This
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71172
Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations
density value is for all seals (harbor and
gray seals as a guild); therefore, it results
in some degree of overestimation when
applied to gray seals only. Calculated
takes by Level A harassment and Level
B harassment may occur each
construction year with up to 5 takes by
Level A harassment and 74 takes by
Level B harassment during Year 3.
2, and 4, during which years calculated
takes were less than group size.
Therefore, the Navy requested, and
NMFS authorized, 100 takes of gray
seals in Years 1, 2 and 4, and 74 takes
in Year 3, and a total of 374 takes by
Level B harassment of gray seals. A total
of 17 takes of gray seals by Level A
harassment is also authorized.
Fewer annual takes were calculated for
Year 2 and 3 by Level A harassment and
28 takes by Level B (Table 15). Because
the calculated annual take is below the
average group size, the annual take by
Level B harassment for gray seal has
been increased to the average group size
(50 gray seals) (NAVSEA NUWC 2017)
and conservatively doubled for Year 1,
TABLE 15—ESTIMATED TAKE FOR GRAY SEAL
Authorized
level A
harassment
Construction year
Year
Year
Year
Year
1
2
3
4
Calculated
level B
harassment
Authorized
level B
harassment
(S45) ................................................................................................................................
(S366 and Pier 01) ..........................................................................................................
(LNG) ...............................................................................................................................
(S499/Pier 2) ....................................................................................................................
3
3
5
6
40
28
74
41
100
100
74
100
Total ......................................................................................................................................
17
183
374
Harp Seal
Harp seals may be present in the
project vicinity January through May. In
general, harp seals are much rarer than
the harbor seal and gray seal in
Narragansett Bay and are rarely
observed in the bay (Kenney, 2015).
Therefore, the minimum species density
was determined to be appropriate for
determining takes of harp seal. Based on
density data for Narragansett Bay
obtained from the NMSDD (Navy 2017),
the minimum density of harp seal was
determined to be 0.050/km2. The Navy
requested and NMFS authorized that 2
takes by Level A harassment could
occur in Year 3, and 1 take by Level A
harassment in Years 1, 2, and 4, for a
total of 5 takes (Table 16). Calculated
takes by Level B harassment range from
11 to 29 and total 72 takes over the
project (Table 16).
Narragansett Bay. No Level A (PTS
onset) or Level B (behavioral) takes are
anticipated during any construction
Authorized/ year. However, in order to guard against
calculated
unauthorized take, the Navy is
level B
requesting, and NMFS authorized, 1
harassment
Level B (behavioral) take of hooded seal
16 per month of construction when this
species may occur (Jan through May) for
11 each construction year for a total of 20
29 takes by Level B harassment (Table 17).
No take by Level A harassment is
18 anticipated to occur or is authorized.
TABLE 16—ESTIMATED TAKE FOR
HARP SEAL
Authorized
level A
harassment
Construction
year
Year 1 (S45) .....
Year 2 (S366
and Pier 1) ....
Year 3 (LNG) ....
Year 4 (S499/
Pier 2) ...........
1
Total ..............
6
1
2
2
74
Hooded Seal
Hooded seals may be present in the
project vicinity from January through
May, although their exact seasonal
densities are unknown. In general,
hooded seals are much rarer than the
harbor seal and gray seal in Narragansett
Bay and are rarely observed in the Bay
(Kenney, 2005). Based on density data
for Narragansett Bay obtained from the
NMSDD, the minimum density of
hooded seal was determined to be
0.001/km2. Hooded seals have the
potential to occur but are considered the
least likely seal to be present in
TABLE 17—ESTIMATED TAKE FOR
HOODED SEAL
Authorized
Level B
harassment
Construction year
Year
Year
Year
Year
1
2
3
4
(S45) .............................
(S366 and Pier 1) .........
(LNG) ............................
(S499/Pier 2) ................
5
5
5
5
Total ......................................
20
Table 18 below summarizes the
authorized take for all the species
described above as a percentage of stock
abundance.
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TABLE 18—TAKE ESTIMATES AS A PERCENTAGE OF STOCK ABUNDANCE
Species
Stock
(NEST)
Atlantic White-sided Dolphin ................
Common Dolphin ..................................
Harbor Porpoise ...................................
Harbor Seal ..........................................
Gray Seal .............................................
Harp Seal .............................................
Hooded Seal .........................................
Western North Atlantic (93,233) ..........
Western North Atlantic (172,974) ........
Gulf of Maine/Bay of Fundy (95,543) ..
Western North Atlantic (61,336) ..........
Western North Atlantic (451,600) ........
Western North Atlantic (7.6 million) .....
Western North Atlantic (593,500) ........
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harassment
Fmt 4700
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Level B
harassment
0
0
4
78
17
6
0
E:\FR\FM\15DER1.SGM
48
140
21
900
374
74
20
15DER1
Percent of stock
Less
Less
Less
Less
Less
Less
Less
than
than
than
than
than
than
than
1
1
1
2
1
1
1
percent.
percent.
percent.
percent.
percent.
percent.
percent.
Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations
Mitigation
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 adverse
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, 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.
The following mitigation measures are
planned for the Navy’s in-water
construction activities.
General
The Navy will follow mitigation
procedures as described below. In
general, if poor environmental
conditions restrict full visibility of the
shutdown zone, pile driving activities
would be delayed.
Training
The Navy will ensure that
construction supervisors and crews, the
monitoring team, and relevant Navy
staff are trained and prior to the start of
construction activity subject to this rule,
so that responsibilities, communication
procedures, monitoring protocols, and
operational procedures are clearly
understood. New personnel joining
during the project will be trained prior
to commencing work.
Avoiding Direct Physical Interaction
The Navy will avoid direct physical
interaction with marine mammals
during construction activity. If a marine
mammal comes within 10 m of such
activity, operations will cease and
vessels will reduce speed to the
71173
minimum level required to maintain
steerage and safe working conditions, as
necessary to avoid direct physical
interaction.
Shutdown Zones
The Navy will establish shutdown
zones for all pile driving activities. The
purpose of a shutdown zone is generally
to define an area within which
shutdown of the activity would occur
upon sighting of a marine mammal (or
in anticipation of an animal entering the
defined area). Shutdown zones will vary
based on the activity type and marine
mammal hearing group (Table 19). For
those activities with larger Level A (PTS
onset) harassment zones, the shutdown
zone would be limited to 150 m from
the point of noise generation to ensure
adequate monitoring for each bulkhead
section and the remaining area would be
considered part of the ‘‘disturbance
zone.’’ The disturbance zone is the
Level B harassment zone and, where
present, the Level A harassment zone
(PTS onset) beyond 150 m from the
point of noise generation (see Figures 6–
1 through 6–4 of the Navy’s
application). For activities where the
Level A (PTS onset) harassment zones
are smaller, the disturbance zone would
include the entire region of influence
(ROI) and is the full extent of potential
underwater noise impact (Level A and
Level B calculated harassment zones).
Work will be allowed to proceed
without cessation while marine
mammals are in the disturbance zone
and marine mammal behavior within
the disturbance zone will be monitored
and documented.
TABLE 19—PILE DRIVING SHUTDOWN ZONE AND DISTURBANCE ZONES DURING PROJECT ACTIVITIES
Pile diameter
(in)
Pile type
Installation method
Steel pipe ..........................................
Impact ...............................................
Impact ...............................................
Vibratory ...........................................
Vibratory ...........................................
Impact ...............................................
Vibratory ...........................................
Impact ...............................................
Steel H ..............................................
Z-Shaped Steel Sheet ......................
Shut down
zone for
cetaceans
(m)
30
42
14
22.5
22.5
31.5
31.5
150
150
10
30
150
20
150
Shut down
zone for
pinnipeds
(m)
Disturbance
zone
(m)
150
50
10
10
150
10
150
2,500
2,500
ROI
ROI
2,500
ROI
2,500
* ROI = region of influence and is the full extent of potential underwater noise impact (Level A and Level B calculated harassment zones).
khammond on DSKJM1Z7X2PROD with RULES
Soft Start
The Navy will use soft start
techniques when impact pile driving.
Soft start requires contractors to provide
an initial set of three strikes from the
hammer at reduced energy, followed by
a 30-second waiting period. Then two
subsequent reduced-energy strike sets
would occur. A soft start will be
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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. Soft start is not required during
vibratory pile driving activities.
Based on our evaluation of the
applicant’s planned measures, NMFS
has determined that the mitigation
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measures provide the means of effecting
the least practicable adverse impact on
the affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance.
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Monitoring and Reporting
In order to issue an IHA for an
activity, Section 101(a)(5)(D) of the
MMPA states that NMFS must set forth
requirements pertaining to the
monitoring and reporting of such taking.
The MMPA implementing regulations at
50 CFR 216.104 (a)(13) indicate that
requests for authorizations must include
the suggested means of accomplishing
the necessary monitoring and reporting
that will result in increased knowledge
of the species and of the level of taking
or impacts on populations of marine
mammals that are expected to be
present in the action area. Effective
reporting is critical both to compliance
as well as for ensuring that the most
value is obtained from the required
monitoring.
Monitoring and reporting
requirements prescribed by NMFS
should contribute to improved
understanding of one or more of the
following:
D Occurrence of marine mammal
species or stocks in the area in which
take is anticipated (e.g., presence,
abundance, distribution, density);
D 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);
D Individual marine mammal
responses (behavioral or physiological)
to acoustic stressors (acute, chronic, or
cumulative), other stressors, or
cumulative impacts from multiple
stressors;
D How anticipated responses to
stressors impact either: (1) Long-term
fitness and survival of individual
marine mammals; or (2) populations,
species, or stocks;
D Effects on marine mammal habitat
(e.g., marine mammal prey species,
acoustic habitat, or other important
physical components of marine
mammal habitat); and
D Mitigation and monitoring
effectiveness.
The Navy will submit a Marine
Mammal Monitoring Plan to NMFS for
approval in advance of the start of
construction.
Monitoring Zones
The Navy will conduct monitoring to
include the area within the Level B
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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) (see Disturbance Zones in Table
19). These disturbance zones provide
utility for monitoring conducted for
mitigation purposes (i.e., shutdown
zone monitoring) by establishing
monitoring protocols for areas adjacent
to the shutdown zones. Monitoring of
the disturbance zones enables observers
to be aware of and communicate the
presence of marine mammals in the
project area, but outside the shutdown
zone, and thus prepare for potential
shutdowns of activity.
Visual Monitoring
Monitoring must take place from 30
minutes (min) prior to initiation of pile
driving activity (i.e., pre-start clearance
monitoring) through 30 min postcompletion of pile driving activity. If a
marine mammal is observed entering or
within the shutdown zones, pile driving
will be delayed or halted. If pile driving
is delayed or halted due to the presence
of a marine mammal, the activity may
not commence or resume until either
the animal has voluntarily exited and
been visually confirmed beyond the
shutdown zone or 15 min have passed
without re-detection of the animal. Pile
driving activity will 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 disturbance zone.
PSO Monitoring Requirements and
Locations
PSOs will be responsible for
monitoring, the shutdown zones, the
disturbance zones and the pre-clearance
zones, as well as effectively
documenting Level A and B harassment
take. As described in more detail in the
Reporting section below, they will also
(1) document the frequency at which
marine mammals are present in the
project area, (2) document behavior and
group composition, (3) record all
construction activities, and (4)
document observed reactions (changes
in behavior or movement) of marine
mammals during each sighting. The
PSOs will monitor for marine mammals
during all in-water pile activities
associated with the project. The Navy
will monitor the project area to the
extent possible based on the required
number of PSOs, required monitoring
locations, and environmental
conditions. Visual monitoring will be
conducted by, at a minimum, by two
PSOs. It is assumed that two to three
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PSOs would be sufficient to monitor the
respective ROIs given the abundance of
suitable vantage points. Any activity
that would result in threshold
exceedance at or more than 1,000 m
would require a minimum of three PSOs
to effectively monitor the entire ROI.
However, additional monitors may be
added if warranted by site conditions
and/or the level of marine mammal
activity in the area. Trained PSOs will
be placed at the best vantage point(s)
practicable such as on nearby
breakwaters, Gould Island, Coddington
Point, or Taylor Point (see Figure 11–1
of the Navy’s application) to monitor for
marine mammals and implement
shutdown/delay procedures when
applicable. The PSOs must record all
observations of marine mammals,
regardless of distance from the pile
being driven.
In addition, PSOs will work in shifts
lasting no longer than 4 hrs with at least
a 1-hr break between shifts and will not
perform duties as a PSO for more than
12 hrs in a 24-hr period (to reduce PSO
fatigue).
Monitoring of pile driving will be
conducted by qualified, NMFSapproved PSOs. The Navy shall adhere
to the following conditions when
selecting PSOs:
D PSOs must be independent (i.e., not
construction personnel) and have no
other assigned tasks during monitoring
periods;
D At least one PSO must have prior
experience performing the duties of a
PSO during construction activities
pursuant to a NMFS-issued incidental
take authorization;
D Other PSOs may substitute other
relevant experience, education (degree
in biological science or related field), or
training;
D Where a team of three PSOs are
required, a lead observer or monitoring
coordinator shall be designated. The
lead observer must have prior
experience performing the duties of a
PSO during construction activity
pursuant to a NMFS-issued incidental
take authorization; and
D PSOs must be approved by NMFS
prior to beginning any activity subject to
this rule.
The Navy will ensure that the PSOs
have the following additional
qualifications:
D Visual acuity in both eyes
(correction is permissible) sufficient for
discernment of moving targets at the
water’s surface with ability to estimate
target size and distance; use of
binoculars may be necessary to correctly
identify the target;
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D Experience and ability to conduct
field observations and collect data
according to assigned protocols;
D Experience or training in the field
identification of marine mammals,
including the identification of
behaviors;
D Sufficient training, orientation, or
experience with the construction
operation to provide for personal safety
during observations;
D 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
D 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.
Acoustic Monitoring
The Navy will conduct a sound
source verification (SSV) study for all
pile types and will follow accepted
methodological standards to achieve
their objectives. The Navy will submit
an acoustic monitoring plan to NMFS
for approval prior to the start of
construction.
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Reporting
The Navy will submit a draft report to
NMFS within 90 workdays of the
completion of required monitoring for
each portion of the project as well as a
comprehensive summary report at the
end of the project. The report will detail
the monitoring protocol and summarize
the data recorded during monitoring.
Final annual reports (each portion of the
project and comprehensive) must be
prepared and submitted within 30 days
following resolution of any NMFS
comments on the draft report. If no
comments are received from NMFS
within 30 days of receipt of the draft
report, the report shall be considered
final. If comments are received, a final
report addressing NMFS comments
must be submitted within 30 days after
receipt of comments. All draft and final
marine mammal monitoring reports
must be submitted to
PR.ITP.MonitoringReports@noaa.gov
and ITP.Egger@noaa.gov. The reports
must contain the following
informational elements, at minimum,
(and be included in the Marine Mammal
Monitoring Plan), including:
D Dates and times (begin and end) of
all marine mammal monitoring;
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D Construction activities occurring
during each daily observation period,
including:
Æ How many and what type of piles
were driven and by what method (e.g.,
impact or vibratory); and
Æ Total duration of driving time for
each pile (vibratory driving) and
number of strikes for each pile (impact
driving);
D PSO locations during marine
mammal monitoring;
D 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;
D Upon observation of a marine
mammal, the following information:
Æ PSO who sighted the animal and
PSO location and activity at time of
sighting;
Æ Time of sighting;
Æ Identification of the animal (e.g.,
genus/species, lowest possible
taxonomic level, or unidentified), PSO
confidence in identification, and the
composition of the group if there is a
mix of species;
Æ Distance and bearing of each
marine mammal observed to the pile
being driven for each sighting (if pile
driving was occurring at time of
sighting);
Æ Estimated number of animals
(minimum/maximum/best);
Æ Estimated number of animals by
cohort (adults, juveniles, neonates,
group composition, etc.;
Æ Animal’s closest point of approach
and estimated time spent within the
harassment zone; and
Æ Description of any marine mammal
behavioral observations (e.g., observed
behaviors such as feeding or traveling),
including an assessment of behavioral
responses to the activity (e.g., no
response or changes in behavioral state
such as ceasing feeding, changing
direction, flushing, or breaching);
D Detailed information about
implementation of any mitigation (e.g.,
shutdowns and delays), a description of
specific actions that ensued, and
resulting changes in behavior of the
animal, if any; and
D All PSO datasheets and/or raw
sightings data.
Reporting of Injured or Dead Marine
Mammals
In the event that personnel involved
in the construction activities discover
an injured or dead marine mammal, the
Navy will report the incident to NMFS
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71175
Office of Protected Resources (OPR)
(PR.ITP.MonitoringReports@noaa.gov),
NMFS (301–427–8401) and to the
Greater Atlantic Region New England/
Mid-Atlantic Stranding Coordinator
(866–755–6622) as soon as feasible. If
the death or injury was clearly caused
by the specified activity, the Navy must
immediately cease the specified
activities until NMFS OPR is able to
review the circumstances of the incident
and determine what, if any, additional
measures are appropriate to ensure
compliance with the terms of this rule.
The Navy will not resume their
activities until notified by NMFS. The
report must include the following
information:
D Time, date, and location (latitude/
longitude) of the first discovery (and
updated location information if known
and applicable);
D Species identification (if known) or
description of the animal(s) involved;
D Condition of the animal(s)
(including carcass condition if the
animal is dead);
D Observed behaviors of the
animal(s), if alive;
D If available, photographs or video
footage of the animal(s); and
D 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,
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’ implementing
regulations (54 FR 40338; September 29,
1989), the impacts from other past and
ongoing anthropogenic activities are
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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 3, 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, impacts 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 A and Level B
harassment from underwater sounds
generated by pile driving. Potential
takes could occur if marine mammals
are present in zones ensonified above
the thresholds for Level A and Level B
harassment, identified above, while
activities are underway.
No serious injury or mortality would
be expected even in the absence of the
planned mitigation measures. During all
impact driving, implementation of soft
start procedures and monitoring of
established shutdown zones will be
required, significantly reducing the
possibility of injury. Given sufficient
notice through use of soft start (for
impact driving), marine mammals are
expected to move away from an
irritating sound source prior to it
becoming potentially injurious. In
addition, PSOs will be stationed within
the action area whenever pile driving
activities are underway. Depending on
the activity, the Navy will employ the
use of at least two and up to three PSOs
to ensure all monitoring and shutdown
zones are properly observed. For
Atlantic white-sided dolphins, common
dolphins and hooded seals, no Level A
harassment is anticipated. Atlantic
white-sided dolphin and common
dolphin are both species in which
regular occurrence is in much deeper
waters than the project area, and, given
the small Level A harassment zone sizes
for mid-frequency cetaceans, we do not
anticipate take by Level A harassment.
For hooded seals which are a rare
species in Narragansett Bay, with the
absence of any major rookeries and only
one pinniped haulout (The Sisters)
within the project area, we do not
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16:21 Dec 14, 2021
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anticipate any take by Level A
harassment.
The Navy’s planned pile driving
activities and associated impacts will
occur within a limited portion of the
confluence of the Narraganset Bay area.
Exposures to elevated sound levels
produced during pile driving activities
may cause behavioral disturbance of
some individuals, but they are expected
to be mild and temporary. However, as
described previously, the mitigation and
monitoring measures are expected to
further reduce the likelihood of injury
as well as reduce behavioral
disturbances.
Effects on individuals that are taken
by Level B harassment, as enumerated
in the Estimated Take section, on the
basis of reports in the literature as well
as monitoring from other similar
activities, will likely be limited to
reactions such as increased swimming
speeds, increased surfacing time, or
decreased foraging (if such activity were
occurring) (e.g., Thorson and Reyff
2006). Most likely, individual animals
will simply move away from the sound
source and be temporarily displaced
from the areas of pile driving, although
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 longterm adverse consequences from
behavioral harassment. These reactions
and behavioral changes are expected to
subside quickly when the exposures
cease. Level B harassment will be
minimized through use of mitigation
measures described herein, and, if
sound produced by project activities is
sufficiently disturbing, animals are
likely to simply avoid the area while the
activity is occurring, particularly as the
project is located on a waterfront with
vessel traffic from both Navy and nonNavy activities.
The project is also not expected to
have significant adverse effects on any
marine mammal habitat. The project
activities will not modify existing
marine mammal habitat since the
project will occur within the same
footprint as existing marine
infrastructure. Impacts to the immediate
substrate during installation and
removal of piles are anticipated, but
these would be limited to minor,
temporary suspension of sediments,
which could impact water quality and
visibility for a short amount of time but
which would not be expected to have
any effects on individual marine
mammals. The nearshore and intertidal
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habitat where the project will occur is
an area of consistent vessel traffic from
Navy and non-Navy vessels, and some
local individuals would likely be
somewhat habituated to the level of
activity in the area, further reducing the
likelihood of more severe impacts. The
closest pinniped haulout, The Sisters, is
used by harbor seals and is less than a
mile from the project area; however, for
the reasons described immediately
above (including the nature of expected
responses and the duration of the
project), impacts to reproduction or
survival of individuals is not
anticipated, much less effects on the
species or stock. There are no other
biologically important areas for marine
mammals near the project area.
In addition, impacts to marine
mammal prey species are expected to be
minor and temporary. Overall, the area
impacted by the project is very small
compared to the available habitat in
Narragansett Bay. The most likely
impact to prey will be temporary
behavioral avoidance of the immediate
area. During pile driving activities, it is
expected that some fish and marine
mammals would temporarily leave the
area of disturbance, thus impacting
marine mammals’ foraging
opportunities in a limited portion of the
foraging range. But, because of the short
duration of the activities and the
relatively small area of the habitat that
may be affected, the impacts to marine
mammal habitat are not expected to
cause significant or long-term negative
consequences.
In summary and as described above,
the following factors primarily support
our determination that the impacts
resulting from this activity are not
expected to adversely affect the species
or stock through effects on annual rates
of recruitment or survival:
D No mortality is anticipated or
authorized;
D No Level A harassment is
anticipated or authorized for Atlantic
white-sided dolphins, Short-beaked
common dolphins, and hooded seals;
D Anticipated incidents of Level B
harassment consist of, at worst,
temporary modifications in behavior;
D The required mitigation measures
(i.e., shutdown zones) are expected to be
effective in reducing the effects of the
specified activity;
D Minimal impacts to marine
mammal habitat/prey are expected;
D The action area is located within an
active marine waterfront area, and
D There are no known biologically
important areas in the vicinity of the
project, with the exception of one
harbor seal haulout (The Sisters)—
however, as described above, exposure
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to the work conducted in the vicinity of
the haulout is not expected to impact
the reproduction or survival of any
individual seals.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat and, taking into
consideration the implementation of the
monitoring and mitigation measures,
NMFS finds that the total marine
mammal take from the planned activity
will have a negligible impact on all
affected marine mammal species or
stocks.
Small Numbers
As noted 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,
so, in practice, where estimated
numbers are available, NMFS compares
the number of individuals taken to the
most appropriate estimation of
abundance of the relevant species or
stock in our determination of whether
an authorization is limited to small
numbers of marine mammals. When the
predicted number of individuals to be
taken is fewer than one third of the
species or stock abundance, the take is
considered to be of small numbers.
Additionally, other qualitative factors
may be considered in the analysis, such
as the temporal or spatial scale of the
activities.
Take of seven of the marine mammal
stocks authorized will comprise at most
approximately 2 percent or less of the
stock abundance (Table 18). The
number of animals authorized to be
taken from these stocks would be
considered small relative to the relevant
stock’s abundances even if each
estimated take occurred to a new
individual, which is an unlikely
scenario. Based on the analysis
contained herein of the planned activity
(including the mitigation and
monitoring measures) and the
anticipated take of marine mammals,
NMFS finds that small numbers of
marine mammals will be taken relative
to the population size of the affected
species or stocks.
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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
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such species or stocks for taking for
subsistence purposes.
Adaptive Management
The regulations governing the take of
marine mammals incidental to Navy
construction activities would 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 ensure 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 authorized or 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
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71177
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 certified to
the Chief Counsel for Advocacy of the
Small Business Administration at the
proposed rule stage that this action will
not have a significant economic impact
on a substantial number of small
entities. The Navy is the sole entity that
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 final rule does not contain a
collection-of-information requirement
subject to the provisions of the
Paperwork Reduction Act (PRA)
because the applicant is a federal
agency.
List of Subjects in 50 CFR Part 217
Administrative practice and
procedure, Alaska, Endangered and
threatened species, Exports, Fish,
Imports, Indians, Labeling, Marine
mammals, Oil and gas exploration,
Penalties, Reporting and recordkeeping
requirements, Seafood, Transportation,
Wildlife.
Dated: December 10, 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 217 is amended as follows:
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PART 217—REGULATIONS
GOVERNING THE TAKE OF MARINE
MAMMALS INCIDENTAL TO
SPECIFIED ACTIVITIES
activities, provided the activity is in
compliance with all terms, conditions,
and requirements of the regulations in
this subpart and the applicable LOA.
1. The authority citation for part 217
continues to read as follows:
§ 217.73
■
Authority: 16 U.S.C. 1361 et seq., unless
otherwise noted.
2. Effective from May 15, 2022,
through May 14, 2027, add subpart R to
read as follows:
■
Subpart R—Taking and Importing
Marine Mammals Incidental to U.S.
Navy Bulkhead Replacement/Repairs
at Naval Station Newport in Newport,
Rhode Island
Sec.
217.70 Specified activity and geographical
region.
217.71 Effective dates.
217.72 Permissible methods of taking.
217.73 Prohibitions.
217.74 Mitigation requirements.
217.75 Requirements for monitoring and
reporting.
217.76 Letters of Authorization.
217.77 Renewals and modifications of
Letters of Authorization.
217.78–217.79 [Reserved]
Subpart R—Taking and Importing
Marine Mammals Incidental to U.S.
Navy Bulkhead Replacement/Repairs
at Naval Station Newport in Newport,
Rhode Island
§ 217.70 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 for
bulkhead replacement and repairs at
Naval Station (NAVSTA) Newport,
Rhode Island.
(b) The taking of marine mammals by
the Navy may be authorized in a Letter
of Authorization (LOA) only if it occurs
at NAVSTA Newport, Rhode Island.
§ 217.71
Effective dates.
Regulations in this subpart are
effective from May 15, 2022, through
May 14, 2027.
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§ 217.72
Permissible methods of taking.
Under an LOA issued pursuant to
§§ 216.106 of this chapter and 217.76,
the Holder of the LOA (hereinafter
‘‘Navy’’) may incidentally, but not
intentionally, take marine mammals
within the area described in § 217.70(b)
by harassment associated with bulkhead
replacement and repairs construction
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Prohibitions.
(a) Except for the takings
contemplated in § 217.72 and
authorized by a LOA issued under
§§ 216.106 of this chapter and 217.76, it
is unlawful for any person to do any of
the following in connection with the
activities described in § 217.70:
(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 217.76;
(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
(b) [Reserved]
§ 217.74
Mitigation requirements.
(a) When conducting the activities
identified in § 217.71(a), the mitigation
measures contained in any LOA issued
under §§ 216.106 of this chapter
and 217.76 must be implemented. These
mitigation measures must include but
are not limited to:
(1) A copy of any issued LOA must be
in the possession of the Navy,
supervisory construction personnel,
lead protected species observers (PSOs),
and any other relevant designees of the
Holder operating under the authority of
this LOA at all times that activities
subject to this LOA are being conducted.
(2) The Navy will follow mitigation
procedures as described in this section.
Should environmental conditions
deteriorate such that marine mammals
within the entire shutdown zone would
not be visible (e.g., fog, heavy rain,
night), the Holder shall delay pile
driving and removal until observers are
confident marine mammals within the
shutdown zone could be detected.
(3) The Navy will ensure that
construction supervisors and crews, the
monitoring team, and relevant Navy
staff are trained prior to the start of all
activities subject to this rule, so that
responsibilities, communication
procedures, monitoring protocols, and
operational procedures are clearly
understood. New personnel joining
during the project will be trained prior
to commencing work.
(4) The Navy, construction
supervisors and crews, PSOs, and
relevant Navy staff will avoid direct
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physical interaction with marine
mammals during construction activity.
If a marine mammal comes within 10 m
of such activity, operations will cease
and vessels will reduce speed to the
minimum level required to maintain
steerage and safe working conditions, as
necessary, to avoid direct physical
interaction.
(5) The Navy will employ PSOs and
establish monitoring locations as
described in this rule and the Marine
Mammal Monitoring Plan. The Navy
will monitor the project area to the
maximum extent possible based on the
required number of PSOs, required
monitoring locations, and
environmental conditions.
(6) Monitoring will take place from 30
minutes prior to initiation of pile
driving activity (i.e., pre-start clearance
monitoring) through 30 minutes postcompletion of pile driving activity.
(7) If a marine mammal is observed
entering or within the shutdown zones
indicated in this rule, pile driving
activity must be delayed or halted. If
pile driving is delayed or halted due to
the presence of a marine mammal, the
activity may not commence or resume
until either the animal has voluntarily
exited and been visually confirmed
beyond the shutdown zone or 15
minutes have passed without redetection of the animal.
(8) The Navy will establish shutdown
zones for all pile driving activities.
Shutdown zones are limited to 150 m
from the point of noise generation. Any
remaining area within estimated Level
A harassment zones shall be considered
part of the ‘‘disturbance zone,’’ i.e., the
Level B harassment zone and, where
present, the Level A harassment zone
(PTS onset) beyond 150 m from the
point of noise generation. For activities
where the estimated Level A (PTS onset)
harassment zones are smaller than 150
m, the disturbance zone shall include
the entire region of influence (ROI), i.e.,
estimated Level A and Level B
harassment zones). Work may proceed
without cessation while marine
mammals are in the disturbance zone
and marine mammal behavior within
the disturbance zone will be monitored
and documented.
(9) The Navy will conduct monitoring
to include the area within 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 (disturbance zone).
(10) Pre-start clearance monitoring
will be conducted during periods of
visibility sufficient for the lead PSO to
determine that the shutdown zones are
clear of marine mammals. Pile driving
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may commence following 30 minutes of
observation when the determination is
made that the shutdown zones are clear
of marine mammals.
(11) If pile driving is delayed or
halted due to the presence of a marine
mammal, the activity may not
commence or resume until either the
animal has voluntarily exited and been
visually confirmed beyond the
shutdown zone indicated or 15 minutes
have passed without re-detection of the
animal.
(12) The Navy will use soft start
techniques when impact pile driving.
Soft start requires contractors to provide
an initial set of three strikes from the
hammer at reduced energy, followed by
a 30-second waiting period. Then two
subsequent reduced-energy strike sets
would occur. A 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. Soft start is not required during
vibratory pile driving activities.
(13) Pile driving activity must be
halted upon observation of either a
species entering or within the
harassment zone, 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.
(b) [Reserved]
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§ 217.75 Requirements for monitoring and
reporting.
(a) Marine Mammal monitoring must
be conducted in accordance with the
conditions in this section and the
Marine Mammal Monitoring Plan. The
Navy must submit a Marine Mammal
Monitoring Plan to NMFS for approval
in advance of construction.
(b) Monitoring must be conducted by
qualified, NMFS-approved PSOs, in
accordance with the following
conditions:
(1) PSOs must be independent (i.e.,
not construction personnel) and have no
other assigned tasks during monitoring
periods.
(2) At least one PSO must have prior
experience performing the duties of a
PSO during construction activity
pursuant to a NMFS-issued incidental
take authorization.
(3) Other PSOs may substitute other
relevant experience, education (degree
in biological science or related field), or
training for prior experience performing
the duties of a PSO during construction
activity pursuant to a NMFS-issued
incidental take authorization.
(4) Where a team of three or more
PSOs is required, a lead observer or
monitoring coordinator must be
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designated. The lead observer must have
prior experience performing the duties
of a PSO during construction activity
pursuant to a NMFS-issued incidental
take authorization.
(5) PSOs must be approved by NMFS
prior to beginning any activity subject to
this LOA.
(c) The Navy will establish the
following monitoring locations. For all
pile driving activities, a minimum of
one PSO will be assigned to each active
pile driving location to monitor the
shutdown zones. Trained PSOs will be
placed at the best vantage point(s)
practicable such as on nearby
breakwaters, Gould Island, Coddington
Point, or Taylor Point. Visual
monitoring will be conducted by, at a
minimum, by two PSOs. It is assumed
that two to three PSOs would be
sufficient to monitor the respective ROIs
given the abundance of suitable vantage
points. Any activity that would result in
threshold exceedance at or more than
1,000 m would require a minimum of
three PSOs to effectively monitor the
entire ROI. However, additional
monitors may be added if warranted by
site conditions and/or the level of
marine mammal activity in the area.
(d) PSOs must record all observations
of marine mammals, regardless of
distance from the pile being driven, as
well as the additional data indicated in
the reporting requirements.
(e) Acoustic monitoring will be
conducted in accordance with the
Acoustic Monitoring Plan. The Navy
will conduct hydroacoustic data
collection (sound source verification
and propagation loss) in accordance
with a hydroacoustic monitoring plan
that must be approved by NMFS in
advance of construction.
(f) The shutdown/disturbances zones
may be modified with NMFS’ approval
following NMFS’ acceptance of an
acoustic monitoring report.
(g) The Navy will submit a draft
monitoring report to NMFS within 90
calendar days of the completion of
required monitoring for each portion of
the project as well as a comprehensive
summary report at the end of the
project. The report will detail the
monitoring protocol and summarize the
data recorded during monitoring. Final
annual reports (each portion of the
project and comprehensive) must be
prepared and submitted within 30 days
following resolution of any NMFS
comments on the draft report. If no
comments are received from NMFS
within 30 days of receipt of the draft
report, the report must be considered
final. If comments are received, a final
report addressing NMFS comments
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71179
must be submitted within 30 days after
receipt of comments.
(h) All draft and final monitoring
reports must be submitted to
PR.ITP.MonitoringReports@noaa.gov
and ITP.Egger@noaa.gov.
(i) The marine mammal report must
contain the informational elements
described ed in the Marine Mammal
Monitoring Plan and, at minimum,
include:
(1) Dates and times (begin and end) of
all marine mammal monitoring;
(2) Construction activities occurring
during each daily observation period,
including: the number and types of piles
were driven or removed and by what
method (i.e., impact or vibratory) and
the total duration of driving time for
each pile (vibratory driving) and
number of strikes for each pile (impact
driving); and
(3) PSO locations during marine
mammal monitoring;
(4) 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;
(5) Upon observation of a marine
mammal, the following information:
(i) Name of PSO who sighted the
animal(s) and PSO location and activity
at time of sighting.
(ii) Time of sighting; and
(iii) Identification of the animal (e.g.,
genus/species, lowest possible
taxonomic level, or unidentified), PSO
confidence in identification, and the
composition of the group if there is a
mix of species;
(iv) Distances and location of each
marine mammal observed relative to the
pile being driven or removed;
(v) Estimated number of animals
(min/max/best);
(vi) Estimated number of animals by
cohort (adults, juveniles, neonates,
group composition etc.);
(vii) Animal’s closest point of
approach and estimated time spent
within the harassment zone; and
(viii) Description of any marine
mammal behavioral observations (e.g.,
observed behaviors such as feeding or
traveling), including an assessment of
behavioral responses thought to have
resulted from the activity (e.g., no
response or changes in behavioral state
such as ceasing feeding, changing
direction, flushing, or breaching);
(6) Number of marine mammals
detected within the harassment zones,
by species;
(7) Detailed information about any
implementation of any mitigation
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triggered (e.g., shutdowns and delays), a
description of specific actions that
ensued, and resulting of the behavior of
the animal, if any;
(8) The Navy will submit all PSO
datasheets and/or raw sightings data
with the draft reports.
(j) The Navy must report the
hydroacoustic data collected as required
by a LOA issued under §§ 216.106 of
this chapter and 217.76 and as described
in the Acoustic Monitoring Plan, and at
a minimum, must include:
(1) Hydrophone equipment and
methods: recording device, sampling
rate, distance (m) from the pile where
recordings were made; depth of water
and recording device(s);
(2) Type and size of pile being driven,
substrate type, method of driving during
recordings (e.g., hammer model and
energy), and total pile driving duration;
(i) Whether a sound attenuation
device is used and, if so, a detailed
description of the device used and the
duration of its use per pile;
(ii) For impact pile driving (per pile):
Number of strikes and strike rate; depth
of substrate to penetrate; pulse duration
and mean, median, and maximum
sound levels (dB re: 1 mPa): Root mean
square sound pressure level (SPLrms);
cumulative sound exposure level
(SELcum), peak sound pressure level
(SPLpeak), and single-strike sound
exposure level (SELs-s);
(iii) For vibratory driving/removal
(per pile): Duration of driving per pile;
mean, median, and maximum sound
levels (dB re: 1 mPa): Root mean square
sound pressure level (SPLrms),
cumulative sound exposure level
(SELcum) (and timeframe over which
the sound is averaged); and
(iv) One-third octave band spectrum
and power spectral density plot.
(k) In the event that personnel
involved in the construction activities
discover an injured or dead marine
mammal, the Navy must report the
incident to NMFS Office of Protected
Resources (OPR), NMFS
(PR.ITP.MonitoringReports@noaa.gov
and ITP.Egger@noaa.gov) Monitoring)
and to the Greater Atlantic Region New
England/Mid-Atlantic Stranding
Coordinator, as soon as feasible. If the
death or injury was clearly caused by
the specified activity, the Navy must
immediately cease the specified
activities until NMFS OPR is able to
review the circumstances of the incident
and determine what, if any, additional
measures are appropriate to ensure
compliance with the terms of this rule
and the LOA issued under §§ 216.106 of
this chapter and 217.76. The Navy will
not resume their activities until notified
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16:21 Dec 14, 2021
Jkt 256001
by NMFS. The report must include the
following information:
(1) Time, date, and location (latitude/
longitude) of the first discovery (and
updated location information if known
and applicable);
(2) Species identification (if known)
or description of the animal(s) involved;
(3) Condition of the animal(s)
(including carcass condition if the
animal is dead);
(4) Observed behaviors of the
animal(s), if alive;
(5) If available, photographs or video
footage of the animal(s); and
(6) General circumstances under
which the animal was discovered.
§ 217.76
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 § 217.77.
(e) The LOA will 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 will 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 will be published in the Federal
Register within 30 days of a
determination.
§ 217.77 Renewals and modifications of
Letters of Authorization.
(a) An LOA issued under §§ 216.106
of this chapter and 217.76 for the
activity identified in § 217.70(a) may be
renewed or modified upon request by
the applicant, provided that:
(1) The specified activity and
mitigation, monitoring, and reporting
measures, as well as the anticipated
impacts, are the same as those described
and analyzed for these regulations; and
PO 00000
Frm 00052
Fmt 4700
Sfmt 4700
(2) NMFS determines that the
mitigation, monitoring, and reporting
measures required by the previous LOA
under these regulations were
implemented.
(b) For LOA modification or renewal
requests by the applicant that include
changes to the activity or the mitigation,
monitoring, or reporting that do not
change the findings made for the
regulations or result in no more than a
minor change in the total estimated
number of takes (or distribution by
species or years), NMFS may publish a
notice of proposed LOA in the Federal
Register, including the associated
analysis of the change, and solicit
public comment before issuing the LOA.
(c) A LOA issued under §§ 216.106 of
this chapter and 217.76 for the activity
identified in § 217.70(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; and
(C) Any information that reveals
marine mammals may have been taken
in a manner, extent or number not
authorized by these regulations or
subsequent LOAs; and
(ii) If, through adaptive management,
the modifications to the mitigation,
monitoring, or reporting measures are
substantial, NMFS 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 217.76, a LOA may be
modified without prior notice or
opportunity for public comment.
Notification would be published in the
Federal Register within 30 days of the
action.
§§ 217.78–217.79
[Reserved]
[FR Doc. 2021–27133 Filed 12–14–21; 8:45 am]
BILLING CODE 3510–22–P
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Agencies
[Federal Register Volume 86, Number 238 (Wednesday, December 15, 2021)]
[Rules and Regulations]
[Pages 71162-71180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27133]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 211208-0254]
RIN 0648-BK69
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Construction at Naval
Station Newport in Newport, Rhode Island
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
[[Page 71163]]
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
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 for bulkhead replacement and
repairs at Naval Station Newport (NAVSTA Newport) over the course of
five years (2022-2027). 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 May 15, 2022, through May 14, 2027.
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-newport-rhode-island. In case of problems accessing these documents, please call the
contact listed below.
FOR FURTHER INFORMATION CONTACT: Stephanie Egger, 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
Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) to allow
for the authorization of take by Level A and Level B harassment
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 Planned 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 effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Mitigation section), as
well as monitoring and reporting requirements. Section 101(a)(5)(A) of
the MMPA and the implementing regulations at 50 CFR part 216, subpart R
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), and if the permissible methods of taking and
requirements pertaining to the mitigation, monitoring and reporting of
the takings are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Summary of Request
In July 2020, NMFS received a request from the Navy requesting
authorization to take small numbers of seven species of marine mammals
incidental to construction activities including bulkhead replacement
and repairs at NAVSTA Newport. NMFS reviewed the Navy's application,
and the Navy provided responses addressing NMFS' questions and comments
on February 22, 2021. The application was deemed adequate and complete
and published for public review and comment on May 19, 2021 (86 FR
27069). We did not receive substantive comments on that notice and
request for comments and information. We subsequently published a
proposed rule in the Federal Register on October 13, 2021 (86 FR
56857). 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 requested authorization to take a small number of seven
species of marine mammals by Level A and B harassment. Neither the Navy
nor NMFS expects serious injury or mortality to result from this
activity. The regulations are valid for five years (2022-2027).
Description of Specified Activity
The Navy plans to replace or repair several sections of
deteriorating, unstable, hazardous, and eroding bulkhead, sheet pile,
and revetment (approximately 2,730 total linear feet (ft)) along the
Coddington Cove waterfront of NAVSTA Newport. Over time, the existing
storm sewer systems and bulkheads along the Coddington Cove waterfront
have severely degraded due to erosion from under-capacity stormwater
system piping and aging infrastructure. This impacts the ability of the
installation to minimize shoreline erosion and minimize safety risks
from associated upland subsidence, while also maintaining potential
berthing space. The Navy plans to conduct
[[Page 71164]]
necessary work, including impact and vibratory pile driving, to repair
and replace bulkheads over five years. The specified activities may
occur at any time during the 5-year period of validity of the
regulations. The Navy expects pile driving to occur on approximately
222 non-consecutive in-water pile driving days over the five-year
duration. Pile driving activities are anticipated to be completed
within 4 years. However, because the planned construction is dependent
on the allocation of funding, the Navy requested that the LOA be issued
for the entire 5-year construction period to ensure flexibility in the
project schedule. Table 1 provides the anticipated construction
schedule for the planned activities.
Table 1--Coddington Cove Bulkhead Replacement and Repair Summary Schedule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Revetment
Section ID Bulkhead replacement Outfalls replaced Dredging area Dredging Construction start date
replacement (lf) (lf) (ft\2\) volume (cy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
S45............................. 310................ 250 Yes (3)........... 8,400 650 May 15, 2022.
S366............................ 90................. 0 Yes (1)........... 1,350 100 October 15, 2023.
Pier 1.......................... 100................ 0 No................ 1,500 120 October 15, 2023.
LNG............................. 650................ 0 Yes (2)........... 9,750 760 October 15, 2024.
S499/Pier 2..................... 510................ 90 Yes (5)........... 9,000 700 October 15, 2025.
S50............................. 730 (repair)....... 0 Yes (2)........... 0 0 October 15, 2026.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: NAVFAC Mid-Atlantic 2018.
The specific sections planned for bulkhead repair and replacement
are described in detail in the proposed rule (86 FR 56857; October 13,
2021) and are summarized in Table 2 below.
Table 2--Bulkhead Pile Installation Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Maximum number
Method of pile Number of Strikes per driving of piles Maximum number
Facility driving Pile type Pile size sheets (pairs)/ pile minutes per installed per of pile
piles pile day driving days
--------------------------------------------------------------------------------------------------------------------------------------------------------
S45.............. Vibratory/Impact Z-shaped Steel 3.75 ft per pair/ 80 pair........ 530 13 10 27
Sheet Pile. 22.5-in each.
Impact.......... Steel Pipe Pile. 30-in........... 4.............. 530 NA 2 4
Vibratory....... Steel H-pile.... 14-in........... 76............. NA 10 12 13
S366............. Vibratory/Impact Z-shaped Steel 3.75 ft per pair/ 14 pair........ 530 13 10 5
Sheet Pile. 22.5-in each.
Impact.......... Steel pipe pile. 30-in diameter.. 15............. 530 NA 2 15
Vibratory....... Steel H-pile.... 14-in........... 14............. NA 10 12 3
S499/Pier 2...... Vibratory/Impact Z-shaped Steel 5.25 ft per pair/ 70 pair........ 530 13 8 23
Sheet Pile. 31.5-in each.
Impact.......... Steel Pipe Pile. 42-in........... 35............. 530 NA 4 18
Vibratory....... Steel H-pile.... 14-in........... 79............. NA 10 12 14
LNG.............. Vibratory/Impact Z-shaped Steel 3.75 ft per pair/ 173 pair....... 530 13 10 58
Sheet Pile. 22.5-in each.
Vibratory....... Steel H-pile.... 14-in........... 164............ NA 10 12 28
Pier 01.......... Vibratory/Impact Z-shaped Steel 3.75 ft per pair/ 27 pair........ 530 13 10 9
Sheet Pile. 22.5-in each.
Vibratory....... Steel H-pile.... 14-in........... 26............. NA 10 12 5
--------------------------------------------------------------------------------------------------------------------------------------
Total sheet piles pairs/pipe and H-piles installed................. 364/413........
--------------------------------------------------------------------------------------------------------------------------------------
Total days pile driving........................................ ............... .............. .............. .............. 222
--------------------------------------------------------------------------------------------------------------------------------------------------------
Legend: NA = not applicable, ft = foot; Start date of in-water work and duration are to be determined.
Since the proposed rule, which contains a detailed description of
the planned construction, was published (86 FR 56857; October 13,
2021), no changes have been made to the planned activities. Therefore,
a detailed description is not provided here. Please refer to the
proposed rule for further description of the specific activity.
Comments and Responses
We published a proposed rule in the Federal Register on October 13,
2021 (86 FR 56857). During the 30-day comment period, we received six
comments from private citizens, with five expressing general support
for the project and one expressing general opposition to the project.
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 Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/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 3 lists all species or stocks for which take is expected and
planned for authorization, 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 (2021).
[[Page 71165]]
PBR is defined by the MMPA as the maximum number of animals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its optimum
sustainable population (as described in NMFS' SARs). While no mortality
is anticipated or authorized here, 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' 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. 2021).
All values presented in Table 3 are the most recent available at the
time of publication and are available in the 2020 SARs (Hayes et al.
2021) or the 2021 draft SARS, available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.
Table 3--Marine Mammal Species Likely To Occur Near the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -; N 93,233 (0.71; 54,443; 544 27
2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -; N 172,974 (0.21; 1,452 390
145,216; 2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -; N 95,543 (0.31; 74,043; 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -,-; N 61,336(0.08/; 57,637, 1,729 339
2018).
Gray seal....................... Halichoerus grypus..... Western North Atlantic. -,-; N 27,300 (0.22, 22,785, 1,389 4,453
2016) \4\.
Harp seal....................... Pagophilus Western North Atlantic. -,-; N 7,600,000 426,000 178,573
groenlandicus. (unk,7,100.000, 2019).
Hooded seal..................... Cystophora cristata.... Western North Atlantic. -,-; N 593,500............... unknown 1,680
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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' 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.
\4\ --This abundance value and the associated PBR value reflect the US population only. Estimated abundance for the entire Western North Atlantic stock,
including animals in Canada, is 451,600. The annual M/SI estimate is for the entire stock.
As indicated above, all seven species in Table 3 temporally and
spatially co-occur with the activity to the degree that take is
reasonably likely to occur, and we have authorized take. Several
depleted species of whales occur seasonally in the waters off Rhode
Island including Humpback (Megaptera novaeangliae), Fin (Balaenoptera
physalus), Sei (Balaenoptera borealis), Sperm (Physeter macrocephalus)
and North Atlantic Right whales (Eubaleana glacialis). These whales are
seasonally present in New England waters; however, due to the depths of
Narragansett Bay and near shore location of the project area, these
listed marine mammals are unlikely to occur. Therefore, no takes were
requested and none are anticipated or planned for authorization by NMFS
and they are not discussed further.
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 (86 FR 56857; October 13, 2021). We are
not aware of any changes in the status of these species and stocks
since that time. Please refer to the proposed rule for these
descriptions (86 FR 56857; October 13, 2021).
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., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible, thus the lower
bound from Southall et al. (2007) is retained. Marine
[[Page 71166]]
mammal hearing groups and their associated hearing ranges are provided
in Table 4.
Table 4--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al. 2006; Kastelein et al. 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Seven marine mammal species (three cetacean and four phocid pinniped
species) have the reasonable potential to co-occur with the planned
construction activities. Please refer to Table 3. Of the cetacean
species that may be present, two are classified as a mid-frequency
cetacean (i.e., dolphins), 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 project area. The proposed rule (86 FR 56857; October
13, 2021) 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 applies to this final rule and is not
repeated here; please refer to the proposed rule (86 FR 56857; October
13, 2021).
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 (86 FR
56857; October 13, 2021).
Estimated Take
This section provides an estimate of the number of incidental takes
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 A and B harassment, in the form
of disruption of behavioral patterns and potential TTS and PTS for
individual marine mammals resulting from exposure to pile driving and
removal. As described previously, no serious injury or mortality is
anticipated or 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--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
[[Page 71167]]
noise above received levels of 120 dB re 1 [mu]Pa (rms) (reference
pressure 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 level of 120 and 160 dB re 1 [mu]Pa (rms) is applicable.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise. The
technical guidance identifies the received levels, or thresholds, above
which individual marine mammals are predicted to experience changes in
their hearing sensitivity for all underwater anthropogenic sound
sources, and reflects the best available science on the potential for
noise to affect auditory sensitivity. The technical guidance does this
by identifying threshholds in the follow manner:
[ssquf] Dividing sound sources into two groups (i.e., impulsive and
non-impulsive) based on their potential to affect hearing sensitivity;
[ssquf] Choosing metrics that best address the impacts of noise on
hearing sensitivity, i.e., sound pressure level (peak SPL) and sound
exposure level (SEL) (also accounting for duration of exposure); and
[ssquf] Dividing marine mammals into hearing groups and developing
auditory weighting functions based on the science supporting the fact
that not all marine mammals hear and use sound in the same manner.
These thresholds were developed by compiling and synthesizing the
best available science and are provided in Table 5 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.
The Navy's planned construction includes the use of impulsive
(impact pile driving) and non-impulsive (vibratory pile driving)
sources.
Table 5--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: 217 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 transmission loss
coefficient.
Sound Propagation
Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:
TL = B * log10(R1/R2),
Where
B = transmission loss coefficient (assumed to be 15)
R1 = the distance of the modeled SPL from the driven
pile, and
R2 = the distance from the driven pile of the initial
measurement.
This formula neglects loss due to scattering and absorption, which
is assumed to be zero here. The degree to which underwater sound
propagates away from a sound source is dependent on a variety of
factors, most notably the water bathymetry and presence or absence of
reflective or absorptive conditions, including in-water structures and
sediments. Spherical spreading occurs in a perfectly unobstructed
(free-field) environment not limited by depth or water surface,
resulting in a 6 dB reduction in sound level for each doubling of
distance from the source (20*log(range)). Cylindrical spreading occurs
in an environment in which sound propagation is bounded by the water
surface and sea bottom, resulting in a reduction of 3 dB in sound level
for each doubling of distance from the source (10*log(range)). As is
common practice in coastal waters, here we assume practical spreading
(4.5 dB reduction in sound level for each doubling of distance).
Practical spreading is a compromise that is often used under conditions
where water depth increases as the receiver moves away from the
shoreline, resulting in an expected propagation environment that would
lie between spherical and cylindrical spreading loss conditions.
Practical spreading was used to determine sound propagation for this
project.
Sound Source Levels
The intensity of pile driving sounds is greatly influenced by
factors such as the type of piles, hammers, and the physical
environment in which the activity takes
[[Page 71168]]
place. There are sound source level (SSL) measurements available for
certain pile types and sizes from the similar environments from other
Navy pile driving projects that were evaluated and used as proxy sound
source levels to determine reasonable sound source levels likely to
result from the pile driving and removal activities (Table 6). Some of
the proxy source levels are expected to be conservative, as the values
are from larger pile sizes.
Table 6--Underwater Noise Sound Source Levels Modeled for Impact and Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
Sound pressure levels (SPL) or sound exposure
level (SEL) at 10 m distance
Pile size, type Method -----------------------------------------------
Peak SPL RMS SPL SEL
----------------------------------------------------------------------------------------------------------------
42-in Diameter Steel Pipe \1\......... Impact.................. 211 196 181
30-in Diameter Steel Pipe \2\......... Impact.................. 211 196 181
14-in Steel H-pile \3\................ Vibratory............... NA 158 158
31.5-in Z-shaped Steel Sheet \4\...... Impact.................. 211 196 181
31.5-in Z-shaped Steel Sheet \5\...... Vibratory............... NA 163 163
22.5-in Z-shaped Steel Sheet \3\...... Impact.................. 205 190 180
22.5-in Z-shaped Steel Sheet \5\...... Vibratory............... NA 163 163
----------------------------------------------------------------------------------------------------------------
Legend: All sound pressure levels (SPLs) are unattenuated; dB = decibels; rms = root mean square, SEL = sound
exposure level; NA = Not applicable; NR = Not reported.
Notes:
\1\ Navy pers comm. 2021.
\2\ Navy San Diego Bay Acoustic Compendium (NAVFAC SW 2020).
\3\ Caltrans 2015.
\4\ A proxy value for 31-in sheet piles could not be found for impact driving so the proxy for a 30-in steel
pipe pile has been used from NAVFAC SW (2020). This value was also used for Z-shaped steel sheets for the
Navy's Dry Dock 1 Modification and Expansion, Portsmouth Naval Shipyard, Kittery, Maine 2021 IHA (86 FR 14598;
March 17, 2021).
\5\ For vibratory driving of 31-in sheet piles and 22.5-in Z-shaped steel sheet piles, 163 dB SPL was used based
on measurements conducted by the Naval Facilities Engineering Command Mid-Atlantic (NAVFAC Mid-Atlantic) in
the Technical Memorandum Nearshore Marine Mammal Surveys, Portsmouth Naval Shipyard (2018).
For 42-in steel piles, a SSL of 181 dB SEL was used for impact
driving and is similar to SSL of 180 dB SEL for 36-in piles in CALTRANS
(2015). There are no SSL values for 42-in piles in CALTRANS, the
nearest values are for 36-in and 60-in steel pipe piles. For 30-in
steel pipe piles, an SSL of 181 dB SEL was used for impact pile driving
as a proxy from the Navy's San Diego Bay Acoustic Compendium (NAVFAC SW
2020) (the median value from the greatest sound levels recorded for 30-
in steel piles). The SSL used for 30-in steel piles during impact pile
driving is also more conservative than the SSL of 177 dB SEL for 30-in
steel piles in CALTRANS (2015). For 31.5-in sheet piles, an SSL of 181
dB SEL was used for impact pile driving as a proxy from 30-in steel
pipe piles (NAVFAC SW 2020), which is also slightly more conservative
than an SSL of 180 dB SEL for 24-in piles in CALTRANS (2015) (no larger
sheet piles are described in CALTRANS 2015). During vibratory pile
driving of 31.5-in sheet piles, the Navy used an SSL of 163 dB SPL,
which is also more conservative than an SSL of 160 dB SPL for 24-in
sheet piles in CALTRANS (2015) (no large sheet piles are described in
CALTRANS 2015). For 22.5-in Z-shaped steel sheet piles, an SSL of 180
dB SEL was used for impact pile driving and is also equivalent to 24-in
sheet piles in CALTRANS (2015). During vibratory pile driving, an SSL
of 163 dB SPL is a proxy from NAVFAC Mid-Atlantic (2018) and is also
more conservative than 24-in sheet piles in CALTRANS (2015) where the
SSL is 160 dB SPL for 24-in sheet piles (no larger sheet piles are
described in CALTRANS (2015). For 14-in steel H-piles, an SSL of 158 dB
SPL was used from CALTRANS (2015).
Level A Harassment
In conjunction with the NMFS Technical Guidance (2018), in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, NMFS developed a User Spreadsheet that includes
tools to help predict a simple isopleth that can be used in conjunction
with marine mammal density or occurrence to help predict takes. We note
that, because of some of the assumptions included in the methods used
for these tools, we anticipate that isopleths produced are typically
going to be overestimates of some degree, which may result in some
degree of overestimation of Level A harassment take. However, these
tools offer the best way to predict appropriate isopleths when more
sophisticated 3D modeling methods are not available, and NMFS continues
to develop ways to quantitatively refine these tools and will
qualitatively address the output where appropriate. For stationary
sources (such as from impact and vibratory pile driving), the NMFS User
Spreadsheet (2020) predicts the closest distance at which, if a marine
mammal remained at that distance the whole duration of the activity, it
would not incur PTS. Inputs used in the User Spreadsheet (Tables 7 and
8), and the resulting isopleths are reported below (Table 9).
Table 7--NMFS Technical Guidance (2020) User Spreadsheet Input To Calculate PTS Isopleths for Vibratory Pile
Driving
[User spreadsheet input--vibratory pile driving spreadsheet Tab A.1 vibratory pile driving used]
----------------------------------------------------------------------------------------------------------------
22.5-in Z- 31.5-in Z-
14-in steel H- shaped sheet shaped sheet
pile piles piles
----------------------------------------------------------------------------------------------------------------
Source Level (RMS SPL).......................................... 158 163 163
Weighting Factor Adjustment (kHz)............................... 2.5 2.5 2.5
Number of piles within 24-hr period............................. 12 10 8
[[Page 71169]]
Duration to drive a single pile (min)........................... 10 13 13
Propagation (xLogR)............................................. 15 15 15
Distance of source level measurement (m)........................ 10 10 10
----------------------------------------------------------------------------------------------------------------
Table 8--NMFS Technical Guidance (2020) User Spreadsheet Input to Calculate PTS Isopleths for Impact Pile
Driving
[User spreadsheet input--Impact pile driving spreadsheet Tab E.1 impact pile driving used]
----------------------------------------------------------------------------------------------------------------
22-in Z- 31.5-in Z-
shaped piles shaped piles 30-in pile 42-in pile
----------------------------------------------------------------------------------------------------------------
Source Level (Single Strike/shot SEL)........... 180 181 181 181
Weighting Factor Adjustment (kHz)............... 2 2 2 2
Number of strikes per pile...................... 530 530 530 530
Number of piles per day......................... 10 8 2 4
Propagation (xLogR)............................. 15 15 15 15
Distance of source level measurement (m)........ 10 10 10 10
----------------------------------------------------------------------------------------------------------------
Table 9--NMFS Technical Guidance (2020) User Spreadsheet Outputs To Calculate Level A Harassment PTS Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
User spreadsheet output PTS isopleths (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment
--------------------------------------------------------------------------------
Activity Sound source level at 10 m Low-frequency Mid-frequency High-frequency
cetaceans cetaceans cetaceans Phocid Otariid
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving/Removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-in H-pile............................. 158 SPL..................... 6.8 0.6 10.1 4.2 0.3
22.5-in Z-shaped sheet piles............. 163 SPL..................... 15.5 1.4 23.0 9.4 0.7
31.5-in Z-shaped sheet piles............. 163 SPL..................... 13.4 1.2 19.8 8.1 0.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
22.5-in Z-shaped sheet piles............. 180 SEL/190 SPL............. 1,915.4 68.1 2,281.5 1,025.0 74.6
31.5-in Z-shaped sheet piles............. 181 SEL/196 SPL............. 1,942.5 68.4 2,292.4 1,029.9 75.0
30-in pile............................... 181 SEL/196 SPL............. 763.7 27.2 909.7 408.7 29.8
42-in pile............................... 181 SEL/196 SPL............. 1,212 43.1 1,444.1 648.8 47.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level B Harassment
Utilizing the practical spreading model, NMFS determined underwater
noise will fall below the behavioral effects threshold of 120 dB rms
for marine mammals at the distances shown in Table 10 for vibratory
pile driving. With these radial distances, the largest Level B
harassment zone calculated was 7,356 m for sheet piles. However, this
distance would be truncated due to the presence of intersecting land
masses. For calculating the Level B harassment zone for impact driving,
the practical spreading loss model was used with a behavioral threshold
of 160 dB rms. The maximum radial distance of the Level B harassment
zone for impact piling equaled 2,512 m for 30-in piles, 42-in piles and
31.5-in sheet piles. Table 10 below provides all Level B harassment
radial distances (m) and ensonified areas (km\2\) during the Navy's
planned activities.
Table 10--Distances to Relevant Behavioral Isopleths and Ensonified Areas
----------------------------------------------------------------------------------------------------------------
Received level at 10 Level B harassment zone (m/
Year (section) Activity m km\2\) *
----------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
-----------------------------------------------------------------------------
[[Page 71170]]
Year 1 (S45)...................... 14-in H-piles........ 158 SPL............. 3,415 m/5.6 km\2\.
Year 2 (S366); Year 2 (Pier 1).... 14-in H-piles........ 158 SPL............. 3,415 m/5.8 km\2\.
Year 3 (LNG)...................... 14-in H-piles........ 158 SPL............. 3,415 m/5.8 km\2\.
Year 4 (S499/Pier 2).............. 14-in H-piles........ 158 SPL............. 3,415 m/5.7 km\2\.
Year 1 (S45)...................... 22.5-in Z-shaped 163 SPL............. 7,356 m/7.9 km\2\.
sheet piles.
Year 2 (S366); Year 2 (Pier 1).... 22.5-in Z-shaped 163 SPL............. 7,356 m/8.3 km\2\.
sheet piles.
Year 3 (LNG)...................... 22.5-in Z-shaped 163 SPL............. 7,356 m/7.5 km\2\.
sheet piles.
Year 4 (S499/Pier 2).............. 22.5-in Z-shaped 163 SPL............. 7,356 m/7.5 km\2\.
sheet piles.
Year 4 (S499/Pier 2).............. 31.5-in Z-shaped 163 SPL............. 7,356 m/9.5.km\2\.
sheet piles.
-----------------------------------------------------------------------------
Impact Pile Driving
-----------------------------------------------------------------------------
Year 1 (S45)...................... 22.5-in Z-shaped 180 SEL/190 SPL..... 1,000 m/1.1 km\2\.
sheet piles.
Year 2 (S366); Year 2 (Pier 1).... 22.5-in Z-shaped 180 SEL/190 SPL..... 1,000 m/1.3 km\2\.
sheet piles.
Year 3 (LNG)...................... 22.5-in Z-shaped 180 SEL/190 SPL..... 1,000 m/0.7 km\2\.
sheet piles.
Year 4 (S499/Pier 2).............. 31.5-in Z-shaped 181 SEL/196 SPL..... 2,512 m/3.8 km\2\.
sheet piles.
Year 1 (S45)...................... 30-in piles.......... 181 SEL/196 SPL..... 2,512 m/3.8 km\2\.
Year 2 (S366)..................... 30-in piles.......... 181 SEL/196 SPL..... 2,512 m/4.0 km\2\.
Year 4 (S499/Pier 2).............. 42-in piles.......... 181 SEL/196 SPL..... 2,512 m/3.8 km\2\.
----------------------------------------------------------------------------------------------------------------
* Note: Distances to the Level B harassment zone may vary slightly of the same pile size, due to the section of
work being conducted and how the produced sound would be directed (see Figures 6-1 through 6-4 of the Navy's
application).
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. Potential exposures to impact pile and vibratory pile
driving noise for each acoustic threshold were estimated using marine
mammal density estimates (N) from the Navy Marine Species Density
Database NMSDD (Navy 2017) for which data of monthly densities of
species were evaluated in terms of minimum, maximum, and average annual
densities within Narragansett Bay and multiplied by the zone of
influence (ZOI) and the maximum days of pile driving (take estimate = N
x ZOI x days of pile driving). The pile type, size, and installation
method that produce the largest ZOI were used to estimate exposure of
marine mammals to noise impacts. We describe how the information
provided above is brought together to produce a quantitative take
estimate in the species sections below.
Atlantic White-Sided dolphins
Atlantic white-sided dolphins occur seasonally, occurring primarily
along the continental shelf with occasional unconfirmed opportunistic
sightings in Narragansett Bay in fall and winter. The most recent
observation of a pod of dolphins in Narragansett Bay was in October
2007 (NUWC Division, 2011). Construction activity could occur at any
time of year and would be short-term and intermittent. Therefore, the
average species density was determined to be appropriate for estimating
takes of Atlantic white-sided dolphin. Based on density data for
Narragansett Bay (Navy 2017), the average density of Atlantic white-
sided dolphin was determined to be 0.003/km\2\. This density was used
to estimate abundance of animals that could be present in the area for
exposure. Using this information, 1 take was calculated for Years 1, 3,
and 4 and 0 takes in Year 2 (Table 11). However, the annual take by
Level B harassment for Atlantic white-sided dolphins has been increased
to the average group size (16) (NAVSEA NUWC 2017) for Years 1, 3, and
4, because the calculated annual take is below the average group size.
Therefore, the Navy requested, and NMFS authorized, 16 takes annually
in Years 1, 3, and 4 (0 in Year 2) for a total of 48 takes by Level B
harassment of Atlantic white-sided dolphin (Table 11). No takes by
Level A harassment of Atlantic white-sided dolphin are anticipated to
occur or are authorized. Because this species' regular occurrence is in
much deeper waters than the extent of the ZOI (Hayes et al., 2019),
expected takes of this species are extremely low.
Table 11--Estimated Take for Atlantic White-Sided Dolphin
------------------------------------------------------------------------
Calculated Authorized
Construction year level B level B
harassment harassment
------------------------------------------------------------------------
Year 1 (S45).................................. 1 16
Year 2 (S366 and Pier 01)..................... 0 0
Year 3 (LNG).................................. 1 16
Year 4 (S499/Pier 2).......................... 1 16
-------------------------
Total....................................... 3 48
------------------------------------------------------------------------
Common Dolphin
Common dolphins are the most likely dolphin species to be spotted
in Narragansett Bay, and usually occur in late fall or winter (Kenney,
2013). The most recent sighting of a common dolphin recorded in
Narragansett Bay was in October of 2016 (Hayes et al., 2019).
Construction activity could occur at any time of year and would be
short-term and intermittent. Based on density data for Narragansett Bay
(NMSDD, Navy, 2017), the average density of common dolphin was
determined to be 0.011/km\2\. Using this information, 3 takes by Level
B harassment were calculated for Years 1 and 4, 2 takes for Year 2 and
6 takes for Year 3 (Table 12). Because the calculated annual take is
below the average group size, the annual take by Level B harassment for
common dolphin has been increased to the average group size (28)
(NAVSEA NUWC 2017). Therefore, the Navy requested, and NMFS authorized,
28 takes annually (with the exception of Year 2, for which it was
doubled to 56 takes as a conservative approach to account for more
vibratory and impact
[[Page 71171]]
pile driving activities that occur during that year in two sections
(S366 and Pier 1)) for a total of 140 takes by Level B harassment of
common dolphin (Table 12). No takes by Level A harassment of common
dolphin are anticipated to occur or are authorized. Because this
species' regular occurrence is in much deeper waters than the extent of
the ZOI (Hayes et al., 2019), takes of this species are expected to be
extremely low.
Table 12--Estimated Take for Common Dolphin
------------------------------------------------------------------------
Calculated Authorized
Construction year level B level B
harassment harassment
------------------------------------------------------------------------
Year 1 (S45).................................. 3 28
Year 2 (S366 and Pier 01)..................... 2 56
Year 3 (LNG).................................. 6 28
Year 4 (S499/Pier 2).......................... 3 28
-------------------------
Total....................................... 14 140
------------------------------------------------------------------------
Harbor Porpoise
Harbor porpoise are not common to Narragansett Bay but may occur,
especially in winter and spring months (Kinney 2013). Harbor porpoise
is the most stranded cetacean in Rhode Island, with a strong seasonal
occurrence in the spring. Construction activity could occur at any time
of year and would be short-term and intermittent. Therefore, the
average species density was determined to be appropriate for estimating
takes of harbor porpoise. Based on density data for Narragansett Bay
(NMSDD, Navy 2017), the average density of harbor porpoise was
determined to be 0.012/km\2\. Using this information, 4 takes by Level
B harassment were calculated for Years 1 and 4, 2 takes for Year 2, and
7 takes for Year 3 (Table 13). Because the calculated take in Year 2
was less than the group size, the annual take by Level B harassment for
harbor porpoise has been increased to the average group size (3) and
multiplied by two for 6 takes (NAVSEA NUWC 2017) as a conservative
approach to account for more vibratory and impact pile driving
activities that occur during that year in two sections (S366 and Pier
1)). Therefore, the Navy requested, and NMFS authorized, 4 takes in
Years 1 and 4, 6 takes in Year 2, and 7 takes in Year 3, and a total of
21 takes by Level B harassment of harbor porpoise (Table 13). Level A
harassment could occur during years 1, 3 and 4 (Table 13).
Table 13--Estimated Take for Harbor Porpoise
----------------------------------------------------------------------------------------------------------------
Authorized Calculated Authorized
Construction year level A