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]

Download as PDF 71162 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. khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 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: E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 71163 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 E:\FR\FM\15DER1.SGM 15DER1 71164 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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. ............................ khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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/ PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 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). E:\FR\FM\15DER1.SGM 15DER1 71165 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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 khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 17:53 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15DER1.SGM 15DER1 71166 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES 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) VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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, PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15DER1.SGM 15DER1 71168 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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). khammond on DSKJM1Z7X2PROD with RULES 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 ............................................................................................ VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 E:\FR\FM\15DER1.SGM 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 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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 khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 18:35 Dec 14, 2021 Jkt 256001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 E:\FR\FM\15DER1.SGM 15DER1 Level B harassment zone (m/km2) * 71170 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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). khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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 khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\15DER1.SGM 15DER1 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. khammond on DSKJM1Z7X2PROD with RULES 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) ........ VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 PO 00000 Frm 00044 Level A harassment Fmt 4700 Sfmt 4700 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 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. E:\FR\FM\15DER1.SGM 15DER1 71174 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 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; E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES 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; VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15DER1.SGM 15DER1 khammond on DSKJM1Z7X2PROD with RULES 71176 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 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: E:\FR\FM\15DER1.SGM 15DER1 71178 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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. khammond on DSKJM1Z7X2PROD with RULES § 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15DER1.SGM 15DER1 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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] khammond on DSKJM1Z7X2PROD with RULES § 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 VerDate Sep<11>2014 16:21 Dec 14, 2021 Jkt 256001 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 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15DER1.SGM 15DER1 khammond on DSKJM1Z7X2PROD with RULES 71180 Federal Register / Vol. 86, No. 238 / Wednesday, December 15, 2021 / Rules and Regulations 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 VerDate Sep<11>2014 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 E:\FR\FM\15DER1.SGM 15DER1

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.

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SUMMARY: NMFS, upon request of the U.S. Navy (Navy), hereby issues 
regulations to govern the unintentional taking of marine mammals 
incidental to construction activities 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
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                                                          Revetment
           Section ID                   Bulkhead         replacement    Outfalls replaced  Dredging  area     Dredging        Construction start date
                                    replacement (lf)        (lf)                               (ft\2\)       volume (cy)
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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.
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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
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                                                                                                             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
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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