Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction at Naval Station Newport, Rhode Island, 342-347 [2022-28546]
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Dated: December 27, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and
Compliance.
Appendix
List of Topics Discussed in the Preliminary
Decision Memorandum
I. Summary
II. Background
III. Scope of the Agreement
IV. Preliminary Results of Review
V. Recommendation
[FR Doc. 2022–28550 Filed 1–3–23; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XC620]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to U.S. Navy
Construction at Naval Station Newport,
Rhode Island
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; proposed modification
of a Letter of Authorization; request for
comments.
AGENCY:
NMFS is proposing to modify
the Letter of Authorization (LOA) that
was issued to the United States Navy
(Navy) on January 26, 2022 in
association with construction activities
related to bulkhead replacement and
repairs at Naval Station Newport
(NAVSTA Newport) over the course of
five years (2022–2027). Necessary
additions to the Navy’s construction
plan include vibratory driving of 30inch (in) steel pipe piles and Down-TheHole (DTH) driving when technically
required for repairs to the S45 bulkhead
facility. Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is
proposing to modify the Navy’s LOA to
increase authorized take by Level B
harassment for harbor seal, gray seal,
and harp seals. NMFS is also proposing
to include appropriate, additional
shutdown mitigation provisions for all
species in the modified LOA. The
monitoring and reporting measures
remain the same as prescribed in the
initial LOA. NMFS will also consider
public comments on the requested
modification prior to making any final
decision and agency responses will be
summarized in the final notice of our
decision.
SUMMARY:
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Comments and information must
be received no later than January 19,
2023.
DATES:
Comments should be
addressed to Jolie Harrison, Chief,
Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service. Written
comments should be submitted via
email to ITP.Hotchkin@noaa.gov.
Instructions: NMFS is not responsible
for comments sent by any other method,
to any other address or individual, or
received after the end of the comment
period. Comments, including all
attachments, must not exceed a 25megabyte file size. Attachments to
comments will be accepted in Microsoft
Word or Excel or Adobe PDF file
formats only. All comments received are
a part of the public record and will
generally be posted online at https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act without
change. All personal identifying
information (e.g., name, address)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit confidential business
information or otherwise sensitive or
protected information.
FOR FURTHER INFORMATION CONTACT: Cara
Hotchkin, Office of Protected Resources,
NMFS, (301) 427–8401. Electronic
copies of the original application and
supporting documents (including NMFS
Federal Register notices of the original
proposed and final authorizations, and
the previous IHA), as well as a list of the
references cited in this document, may
be obtained online at: https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act. In case
of problems accessing these documents,
please call the contact listed above.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct 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 and either regulations are
issued or, if the taking is limited to
harassment, a notice of a proposed
incidental take authorization may be
provided to the public for review.
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Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
taking for subsistence uses (where
relevant). Further, NMFS must prescribe
the permissible methods of taking and
other ‘‘means of effecting the least
practicable adverse impact’’ on the
affected species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance, and on the
availability of such species or stocks for
taking for certain subsistence uses
(referred to in shorthand as
‘‘mitigation’’); and requirements
pertaining to the mitigation, monitoring
and reporting of such takings are set
forth.
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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 review our
proposed action (i.e., the issuance of an
IHA) with respect to potential impacts
on the human environment.
This action remains consistent with
categories of activities identified in
Categorical Exclusion B4 (incidental
harassment authorizations with no
anticipated serious injury or mortality)
of the Companion Manual for NOAA
Administrative Order 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
preliminarily determined that the
issuance of the proposed modified LOA
continues to qualify to be categorically
excluded from further NEPA review.
We will review all comments
submitted in response to this notice
prior to concluding our NEPA process
or making a final decision on the LOA
Modification request.
History of Request
On December 15, 2021, NMFS issued
a final rule to the Navy (86 FR 71162)
to incidentally harass, by Level A and
Level B harassment only, marine
mammals during construction activities
associated with bulkhead replacement
and repairs at Naval Station Newport
(NAVSTA Newport) over the course of
5 years (2022–2027). Subsequently, on
January 26, 2022, NMFS issued a Letter
of Authorization (LOA) to the Navy (87
FR 6145) associated with the final rule.
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Species authorized for take included
Atlantic white-sided dolphin
(Lagenorhynchus acutus), common
dolphin (Delphinus delphis), harbor
porpoise (Phocoena phocoena), harbor
seal (Phoca vitulina), gray seal
(Halichoerus grypus), harp seal
(Pagophilus groenlandicus), and hooded
seal (Cystophora cristata). The effective
dates of this LOA are May 15, 2022
through May 14, 2027.
On November 15, 2022, NMFS
received a request from the Navy for a
modification to the NAVSTA Newport
bulkhead construction project due to a
change in the construction contractor’s
plan. On December 15, 2022, the Navy
revised their request to incorporate
NMFS’s DTH source level
recommendations (available at: https://
media.fisheries.noaa.gov/2022-11/
PUBLIC%20DTH%20Basic
%20Guidance_November%202022.pdf).
In its initial request for incidental take
regulations, the Navy did not anticipate
the need for vibratory driving of steel
pipe piles or DTH installation of any
pile type. Vibratory driving of steel
sheet and H-piles was included, and
analyzed in the rule. However, the
construction contractor for the first
phase of the project (S45 bulkhead) has
since determined that vibratory driving
of steel pipe piles will be required, and
that DTH hammering may be necessary
if obstructions are encountered that
would prevent the use of impact or
vibratory hammers to install piles.
Therefore, the Navy is requesting, and
NMFS is proposing, to modify the 2022
LOA to include take incidental to
potential vibratory driving of 30-in steel
pipe piles and DTH hammering of 10in diameter holes. These updates to the
Navy’s specified activity would increase
estimated Level B harassment isopleths
and, therefore, result in an increased
estimate of exposures by Level B
harassment for harbor seal, gray seal,
and harp seal. NMFS has determined
that the changes also necessitate revised
shutdown mitigation provisions for
vibratory and DTH pile driving
scenarios for all species. The monitoring
and reporting measures remain the same
as prescribed in the initial LOA, and no
additional take is requested or proposed
for other species.
Description of the Proposed Activity
and Anticipated Impacts
The modified LOA would include the
same construction activities (i.e., impact
pile driving, vibratory pile driving and
removal) in the same locations that were
described in the 2022 final rule (86 FR
71162; December 15, 2021); for the S45
location, additional vibratory driving
and DTH hammering are proposed. The
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343
monitoring and reporting measures
remain the same as prescribed in the
initial LOA, while revisions to the
required mitigation measures have been
proposed. NMFS refers the reader to
relevant documents related to issuance
of the initial LOA, including the Navy’s
application, the proposed rule and
request for comments (86 FR 56857;
October 13, 2021), final rule (86 FR
71162; December 15, 2021), and notice
of issued LOA (87 FR 6145; February 3,
2022) (available at https://
www.fisheries.noaa.gov/action/
incidental-take-authorization-us-navyconstruction-naval-station-newportrhode-island) for more detailed
description of the project activities.
Detailed Description of the Action
A detailed description of the
construction activities is found in the
aforementioned documents associated
with issuance of the initial LOA. The
location, time of year, and general
nature of the activities are identical to
those described in the previous
documents. However, as noted in the
History of Request section, the Navy
anticipates that vibratory installation of
30-in steel pipe piles and DTH
hammering will be necessary to
complete the S45 phase of the project on
time. Differences between the activities
analyzed in the final rule and those
analyzed in support of the proposed
modification are shown in Table 1.
Section S45: In its current condition,
this section of bulkhead is in serious
condition with a high priority for
replacement/repair because the steel
sheet piles and cap exhibit heavy
corrosion with numerous areas that
exhibit 100 percent loss of section
resulting in extensive landside erosion.
Under the proposed modification,
replacement of Section S45 would
include the demolition and replacement
of approximately 310 ft of existing steel
sheet pile bulkhead just south of Pier 1.
The existing bulkhead would then be
replaced with a new deadman anchored
king pile system. The system would
consist of approximately 4 (30-in) steel
pipe piles; 160 (80 pairs) (22.5-in) Zshaped sheet piles; and approximately
76 (14-in) H-piles. These piles would be
installed approximately 1ft in front of
the existing bulkhead using a
combination of vibratory and impact
hammers, as necessary. In the
modification request, the Navy has
determined that the four 30-in steel pipe
piles will be installed with a vibratory
hammer, rather than the impact hammer
considered in the final rule.
Additionally, the Navy has proposed the
limited use of a DTH system on an as
needed basis, if obstructions are
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encountered that would prevent the use
of just impact or vibratory hammers
when installing piles at the S45 facility.
The existing steel sheet pile wall would
be excavated landside to a depth of
approximately 10 ft below ground
surface and cut off at the limit of
excavation (see Figure 1–8 of the LOA
application).
TABLE 1—BULKHEAD PILE INSTALLATION ACTIVITY AT THE S45 FACILITY IN INITIAL LOA AND THE PROPOSED
MODIFICATION
Final rule
Pile type
Steel sheet pile ............
Steel pipe pile ..............
Steel H pile ..................
DTH Holes ...................
Method
Number of
piles
Number of
days
Number of piles
Number of
days
Vibratory/impact ..........
Impact .........................
Vibratory ......................
DTH .............................
80 pair ............
4 .....................
76 ...................
na ...................
27 ...................
4 .....................
13 ...................
na ...................
Vibratory/impact ..........
Vibratory ......................
Vibratory ......................
DTH .............................
80 pair ............
4 .....................
76 ...................
8 .....................
Description of Marine Mammals
A description of the marine mammals
in the area of the activities is found in
these previous documents, which
remains applicable to this modified
LOA as well. In addition, NMFS has
reviewed the 2021 Stock Assessment
Reports (Hayes et al., 2022), information
on relevant Unusual Mortality Events,
and recent scientific literature, and
determined that no new information
affects our original analysis of impacts
under the initial LOA. (Note that the
Potential Biological Removal of the gray
seal Western North Atlantic stock
increased from 1,389 to 1,458, and
annual mortality and serious injury of
the harbor porpoise Gulf of Maine/Bay
of Fundy stock decreased from 217 to
164).
Potential Effects on Marine Mammals
and Their Habitat
A description of the potential effects
of the specified activities on marine
mammals and their habitat may be
found in the documents supporting the
final rule, which remains applicable to
modification of the LOA. NMFS is not
aware of new information regarding
potential effects.
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Estimated Take
A detailed description of the methods
and inputs used to estimate authorized
take for the specified activity are found
in the proposed rule (86 FR 56857;
October 13, 2021); the descriptions
presented in the proposed rule did not
change in the final rule (86 FR 71162;
December 15, 2021). The types and sizes
of piles, and marine mammal stocks
taken remain unchanged from the final
rule. The proposed modification
addresses the addition of vibratory
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driving of four 30-in steel pipe piles and
ten instances of DTH hammering at the
S45 bulkhead, which would result in
increased harassment zone sizes. The
Navy anticipates that up to four days of
vibratory driving (up to two piles per
day) and up to eight days of DTH
hammering at one hole per day will be
required. Acoustic effects on marine
mammals during the specified activity
can occur from impact and vibratory
pile installation and removal, and DTH.
The effects of underwater noise from the
Navy’s proposed activities have the
potential to result in Level A and Level
B harassment of marine mammals in the
action area.
The proposed modification includes
the use of DTH hammers, which were
not evaluated in the final rule. A DTH
hammer is essentially a drill bit that
drills through the bedrock using a
rotating function like a normal drill, in
concert with a hammering mechanism
operated by a pneumatic (or sometimes
hydraulic) component integrated into to
the DTH hammer to increase speed of
progress through the substrate (i.e., it is
similar to a ‘‘hammer drill’’ hand tool).
The sounds produced by DTH methods
contain both a continuous nonimpulsive component from the drilling
action and an impulsive component
from the hammering effect. Therefore,
NMFS treats DTH systems as both
impulsive and continuous, nonimpulsive sound source types
simultaneously.
Ensonified Area
A detailed description of the
operational and environmental
parameters of the activity that are used
in estimating the area ensonified above
the acoustic thresholds, including
source levels and transmission loss
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Number of
piles
27
4
13
8
coefficient, can be found in the
proposed rule (86 FR 56857; October 13,
2021), and did not change in the final
rule (86 FR 71162; December 15, 2021).
The new proposed activities include
vibratory driving of 30-in pipe piles and
DTH hammering; for those activities, we
provide a description of the sound
source levels and ensonified areas
below.
Sound Source Levels of Proposed
Activities—The intensity of pile driving
sounds is greatly influenced by factors
such as the type of piles, hammers, and
the physical environment (e.g.,
sediment type) in which the activity
takes place. The Navy consulted with
NMFS on the appropriate sound source
levels to use for vibratory driving, and
NMFS recommended a value based on
available measurements of vibratory
driving of 30-in steel pipe piles
(CALTRANS, 2020). Source data for the
proposed installation methods and pile
types are provided in Table 2. Note that
the source levels in this Table represent
the SPL referenced at a distance of 10
m from the source.
NMFS recommends treating DTH
systems as both impulsive and
continuous, non-impulsive sound
source types simultaneously. Thus,
impulsive thresholds are used to
evaluate Level A harassment, and the
continuous threshold is used to evaluate
Level B harassment. The Navy
consulted with NMFS to obtain the
appropriate proxy values for DTH
mono-hammers. NMFS recommended
proxy levels for Level A harassment
based on available data regarding DTH
systems of similar sized piles and holes
(Table 2) (Denes et al., 2019; Guan and
Miner, 2020; Reyff and Heyvaert, 2019;
Reyff, 2020; Heyvaert and Reyff, 2021).
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TABLE 2—SOURCE INFORMATION FOR MODIFIED PILE DRIVING AND DTH ACTIVITIES
Average
Peak SPL
(dB re 1 μPa)
Vibratory Driving 30-in steel
pipe piles ........................
10-in DTH mono-hammer ..
Average
RMS SPL
(dB re 1 μPa)
N/A
172
The methods used to calculate the
ensonified areas based on the sound
source information in Table 2 are
Average SEL
(dB re 1 μPa 2 sec)
159
167
Strike rate
(strikes per
second)
N/A
146
N/A
10
identical to those used in the final rule;
details are provided in the Proposed
Rule (86 FR 56857; October 13, 2021).
Maximum
number of
piles per day
Minutes
to drive
30
240
2
1
The resulting Level A and Level B
harassment isopleths are provided in
Tables 3 and 4.
TABLE 3—CALCULATED DISTANCE AND AREAS OF LEVEL A AND LEVEL B HARASSMENT FOR IMPULSIVE NOISE (DTH)
Level A harassment 2
Total
production
days
Duration, count,
size, and or rate
Activity
DTH (10-in holes)
4 hours/day (1
hole/day).
Mid-Frequency
Cetaceans
(Dolphins)
8
Level B
harassment
High Frequency
Cetaceans (Harbor
Porpoise)
3.3 m/0.000034
km 2.
Phocid Pinnipeds
111.6 m/0.019204
km 2.
Harbor Porpoise
and Phocids
50.1 m/0.004657
km 2.
See Table 4.
TABLE 4—CALCULATED DISTANCE AND AREAS OF LEVEL A AND LEVEL B HARASSMENT FOR NON-IMPULSIVE NOISE
(VIBRATORY, DTH)
Level A harassment 2
Total
production
days
Duration, count,
size, and or rate
Activity
Mid-Frequency
Cetaceans
(Dolphins)
DTH (10-in holes)
4 hours/day (1
hole/day).
8
30-in Steel Pipe Vibratory.
1 hour/day (2 piles/
day).
4
Marine Mammal Occurrence and Take
Calculation and Estimation
A description of the methods used to
estimate take anticipated to occur from
Level B
harassment
High Frequency
Cetaceans (Harbor
Porpoise)
Phocid Pinnipeds
Harbor Porpoise
and Phocids
See Table 3
0.4 m/0.000001
km.2.
13,594 m/7.80374
km.2
7.4 m/0.000152
km.2.
the project is found in the project’s
aforementioned documents. The
methods of estimating take are identical
to those used in the final rule. Table 5
3.1 m/0.00003
km.2.
3,981 m/6.741652
km.2
shows the authorized takes at the S45
facility under the initial LOA (all in year
1) and the estimated takes from the
proposed modification.
TABLE 5—TAKE ESTIMATES AT S45 FACILITY UNDER THE INITIAL LOA AND THE PROPOSED MODIFICATION
Initial LOA
(year 1; S45)
Level A
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Atlantic White-sided Dolphin ............................................................................
Common Dolphin .............................................................................................
Harbor Porpoise ...............................................................................................
Harbor Seal ......................................................................................................
Gray Seal .........................................................................................................
Harp Seal .........................................................................................................
Hooded Seal ....................................................................................................
Proposed modification
Level A
Level B
0
0
1
15
3
1
0
1
3
4
188
40
16
0
Level B
0
0
1
15
3
1
0
1
3
4
244
52
20
0
TABLE 6—TAKE ESTIMATES AS A PERCENTAGE OF STOCK ABUNDANCE FOR THE PROPOSED MODIFICATION FOR YEAR 1
TAKES AT THE S45 FACILITY
Level A
harassment
Level B
harassment
Species
Stock (NEST)
Atlantic White-sided Dolphin.
Common Dolphin ..............
Harbor Porpoise ................
Western North Atlantic (93,233) ................................
0
3
Less than 1 percent.
Western North Atlantic (172,947) ..............................
Gulf of Maine/Bay of Fundy (95,543) ........................
0
1
3
4
Less than 1 percent.
Less than 1 percent.
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TABLE 6—TAKE ESTIMATES AS A PERCENTAGE OF STOCK ABUNDANCE FOR THE PROPOSED MODIFICATION FOR YEAR 1
TAKES AT THE S45 FACILITY—Continued
Species
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Harbor Seal .......................
Gray Seal ..........................
Harp Seal ..........................
Hooded Seal .....................
Western
Western
Western
Western
North
North
North
North
Atlantic
Atlantic
Atlantic
Atlantic
Description of Proposed Mitigation,
Monitoring and Reporting Measures
The reporting measures proposed are
identical to those included in the initial
LOA and the discussion of the least
practicable adverse impact included in
2022 final rule. The monitoring and
mitigation measures have been updated
to include additional hydroacoustic
monitoring and conservative shutdown
zones. The following measures are
proposed for inclusion in the LOA
Modification, and are in addition to
those described in the Final Rule (86 FR
71162; December 15, 2021):
• Supplemental hydroacoustic
monitoring will include:
Æ 30-in Steel Pipe—vibratory driving:
2 piles; and
Æ Obstruction drilling—DTH
hammer: up to 8 holes (if required for
pile installation).
• Shutdown zones for the new
activities identical to those identified in
the Final Rule (86 FR 71162; December
15, 2021):
Æ DTH Obstruction Drilling: The
maximum shutdown zone included in
the initial LOA is 150 m. This distance
is greater than the calculated distance to
Level A harassment thresholds for
marine mammal species from DTH
activities at the S45 facility, which is
111.6 m for harbor porpoise. The Navy
proposes to implement the same 150 m
shutdown distance for cetaceans and
pinnipeds when conducting DTH
activities.
Æ Vibratory driving steel pipe piles:
the greatest calculated distance to Level
A harassment thresholds for species at
this location is 7.4 m, which is less than
the standard construction shutdown of
10 m to prevent equipment/mammal
interactions. However, for consistency
the Navy has proposed a 30 m
shutdown distance for cetaceans and 10
m for pinnipeds from vibratory pile
driving steel pipe piles, which is the
same as for vibratory driving steel sheet
piles in the issued authorization.
Preliminary Determinations
With the exception of the revised take
numbers and monitoring and mitigation
measures, the Navy’s in water
construction activities as well as
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Level A
harassment
Stock (NEST)
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(61,336) ................................
(451,431) ..............................
(7.6 million) ...........................
(593,500) ..............................
15
3
1
0
reporting requirements are unchanged
from those in the initial LOA. The
effects of the activity on the affected
species and stocks, taking into
consideration the modified mitigation
and related monitoring measures,
remain unchanged, notwithstanding the
increase to the authorized amount of
harbor seal, gray seal, and harp seal take
by Level B harassment.
The additional takes from Level B
harassment would be due to potential
behavioral disturbance and TTS. No
serious injury or mortality is anticipated
given the nature of the activity and
measures designed to minimize the
possibility of injury to marine
mammals. The potential for harassment
is minimized through the construction
method and the implementation of the
planned mitigation measures (see
Description of Mitigation, Monitoring
and Reporting Measures section).
The Navy’s proposed pile driving
project precludes the likelihood of
serious injury or mortality. For all
species and stocks, take would occur
within a limited, confined area
(immediately surrounding NAVSTA
Newport in the Narragansett Bay area) of
the stock’s range. Level A and Level B
harassment will be reduced to the level
of least practicable adverse impact
through use of mitigation measures
described herein. Furthermore, the
amount of take proposed to be
authorized is extremely small when
compared to stock abundance.
The additional 72 takes of harbor,
gray, and harp seals represents an
increase of approximately 5.7 percent of
the total take authorized in the initial
LOA, and the anticipated impacts are
identical to those described in the 2022
final rule. The amount of additional take
for each species is also small (less than
1 percent of each stock). The Navy has
proposed additional hydro-acoustic
monitoring of the new activities, which
will improve understanding of the
source levels of such activities for future
work. The proposed modification to the
LOA includes additional required
mitigation and monitoring measures
(albeit some minor modification to
harassment and shutdown distances),
PO 00000
Frm 00009
Fmt 4703
Sfmt 4703
Level B
harassment
244
52
20
0
Percent of stock
Less
Less
Less
Less
than
than
than
than
1
1
1
1
percent.
percent.
percent.
percent.
and identical reporting measures as the
2022 LOA.
In conclusion, there is no new
information suggesting that our analysis
or findings should change.
Based on the information contained
here and in the referenced documents,
NMFS has preliminarily determined the
following: (1) the required mitigation
measures will effect the least practicable
impact on marine mammal species or
stocks and their habitat; (2) the
proposed authorized takes will have a
negligible impact on the affected marine
mammal species or stocks; (3) the
proposed authorized takes represent
small numbers of marine mammals
relative to the affected stock
abundances; and (4) Navy’s activities
will not have an unmitigable adverse
impact on taking for subsistence
purposes as no relevant subsistence uses
of marine mammals are implicated by
this action, and (5) appropriate
monitoring and reporting requirements
are included..
Endangered Species Act (ESA)
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 proposed for authorization 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.
Proposed Authorization
As a result of these preliminary
determinations, NMFS proposes to issue
an LOA modification to the United
States Navy for conducting construction
activities for bulkhead replacement and
repairs at the S45 Facility at Naval
Station Newport (NAVSTA Newport),
E:\FR\FM\04JAN1.SGM
04JAN1
Federal Register / Vol. 88, No. 2 / Wednesday, January 4, 2023 / Notices
Rhode Island, provided the previously
mentioned mitigation, monitoring, and
reporting requirements are incorporated.
A draft of the proposed modified LOA
can be found at https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act.
Request for Public Comments
We request comment on our analyses
on the proposed modification and
supporting analyses described in this
notice of Proposed LOA Modification
for the proposed construction activities
for bulkhead replacement and repairs at
the S45 Facility. Please include with
your comments any supporting data or
literature citations to help inform our
final decision on the request for MMPA
authorization.
Dated: December 28, 2022.
Daniel Bess,
Acting Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2022–28546 Filed 1–3–23; 8:45 am]
BILLING CODE 3510–22–P
COMMODITY FUTURES TRADING
COMMISSION
Agency Information Collection
Activities Under OMB Review
Commodity Futures Trading
Commission.
ACTION: Notice.
AGENCY:
In compliance with the
Paperwork Reduction Act of 1995
(PRA), this notice announces that the
Information Collection Request (ICR)
abstracted below has been forwarded to
the Office of Information and Regulatory
Affairs (OIRA), of the Office of
Management and Budget (OMB), for
review and comment. The ICR describes
the nature of the information collection
and its expected costs and burden.
DATES: Comments must be submitted on
or before February 3, 2023.
ADDRESSES: Written comments and
recommendations for the proposed
information collection should be
submitted within 30 days of this
notice’s publication to OIRA, at https://
www.reginfo.gov/public/do/PRAMain.
Please find this particular information
collection by selecting ‘‘Currently under
30-day Review—Open for Public
Comments’’ or by using the website’s
search function. Comments can be
entered electronically by clicking on the
‘‘comment’’ button next to the
information collection on the ‘‘OIRA
Information Collections Under Review’’
page, or the ‘‘View ICR—Agency
khammond on DSKJM1Z7X2PROD with NOTICES
SUMMARY:
VerDate Sep<11>2014
16:55 Jan 03, 2023
Jkt 259001
Submission’’ page. A copy of the
supporting statement for the collection
of information discussed herein may be
obtained by visiting https://
www.reginfo.gov/public/do/PRAMain.
In addition to the submission of
comments to https://Reginfo.gov as
indicated above, a copy of all comments
submitted to OIRA may also be
submitted to the Commodity Futures
Trading Commission (the
‘‘Commission’’ or ‘‘CFTC’’) by clicking
on the ‘‘Submit Comment’’ box next to
the descriptive entry for OMB Control
No. 3038–0096, at https://
comments.cftc.gov/FederalRegister/
PublicInfo.aspx.
Or by either of the following methods:
• Mail: Christopher Kirkpatrick,
Secretary of the Commission,
Commodity Futures Trading
Commission, Three Lafayette Centre,
1155 21st Street NW, Washington, DC
20581.
• Hand Delivery/Courier: Same as
Mail above.
All comments must be submitted in
English, or if not, accompanied by an
English translation. Comments
submitted to the Commission should
include only information that you wish
to make available publicly. If you wish
the Commission to consider information
that you believe is exempt from
disclosure under the Freedom of
Information Act, a petition for
confidential treatment of the exempt
information may be submitted according
to the procedures established in § 145.9
of the Commission’s regulations.1 The
Commission reserves the right, but shall
have no obligation, to review, prescreen, filter, redact, refuse or remove
any or all of your submission from
https://www.cftc.gov that it may deem to
be inappropriate for publication, such as
obscene language. All submissions that
have been redacted or removed that
contain comments on the merits of the
ICR will be retained in the public
comment file and will be considered as
required under the Administrative
Procedure Act and other applicable
laws, and may be accessible under the
Freedom of Information Act.
FOR FURTHER INFORMATION CONTACT:
Isabella Bergstein, Attorney Adviser,
Division of Market Oversight,
Commodity Futures Trading
Commission, Three Lafayette Centre,
1155 21st Street NW, Washington, DC
20581 (202) 993–1384; email:
ibergstein@cftc.gov, and refer to OMB
Control Number 3039–0096.
SUPPLEMENTARY INFORMATION:
Title: Swap Data Recordkeeping and
Reporting Requirements (OMB Control
1 17
PO 00000
CFR 145.9.
Frm 00010
Fmt 4703
Sfmt 4703
347
No. 3038–0096). This is a request for
extension of a currently approved
information collection.
Abstract: The collection of
information is needed to ensure that the
CFTC and other regulators have access
to swap data as required by the
Commodity Exchange Act, as amended
by the Dodd-Frank Wall Street Reform
and Consumer Protection Act (‘‘DoddFrank Act’’). The Dodd-Frank Act
directed the CFTC to adopt rules
providing for the reporting of data
relating to swaps. In 2012, the CFTC
adopted Regulation 45, which imposes
recordkeeping and reporting
requirements relating to pre-enactment
and historical swaps.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. On October 24, 2022,
the Commission published in the
Federal Register notice of the proposed
extension of this information collection
and provided 60 days for public
comment on the proposed extension, 87
FR 64205 (‘‘60-Day Notice’’). The
Commission received no relevant
comments that addressed its PRA
burden estimates.
Burden Statement: Provisions of
CFTC Regulations 39.6, 45.2, 45.3, 45.4,
45.5, 45.6, 45.10, and 45.14 result in
information collection requirements
within the meaning of the PRA. With
respect to the ongoing reporting and
recordkeeping burdens associated with
swaps, the CFTC believes that SDs,
SEFs, DCMs, DCOs, SDRs, MSPs, and
non-SD/MSP counterparties incur an
annual time-burden of 1,460,357 hours.
This time-burden represents a
proportion of the burden respondents
incur to operate and maintain their
swap data recordkeeping and reporting
systems.The respondent burden for this
collection is estimated to be as follows:
Respondents/Affected Entities: Swap
Dealers, Major Swap Participants, SEFs,
DCMs, DCOs, and other counterparties
to a swap transaction (i.e., end-user,
non-SD/non-MSP counterparties).
Estimated Number of Respondents:
1,732.
Estimated Average Burden Hours per
Respondent: 843 hours.2
Estimated Total Annual Burden
Hours: 1,460,357 hours.3
2 Average burden hour per respondent rounded to
the nearest full hour.
3 This estimate reflects a revision to the
Information Collection approved by OMB on
November 16, 2022. See ICR Ref. No. 202209–3038–
003. Due to this revision, this figure has been
revised from the estimate of 1,276,705 hours
included in the 60-Day Notice.
E:\FR\FM\04JAN1.SGM
04JAN1
]]>Agencies
[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Notices]
[Pages 342-347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28546]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC620]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Construction at Naval
Station Newport, Rhode Island
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed modification of a Letter of Authorization;
request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS is proposing to modify the Letter of Authorization (LOA)
that was issued to the United States Navy (Navy) on January 26, 2022 in
association with construction activities related to bulkhead
replacement and repairs at Naval Station Newport (NAVSTA Newport) over
the course of five years (2022-2027). Necessary additions to the Navy's
construction plan include vibratory driving of 30-inch (in) steel pipe
piles and Down-The-Hole (DTH) driving when technically required for
repairs to the S45 bulkhead facility. Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is proposing to modify the Navy's LOA to
increase authorized take by Level B harassment for harbor seal, gray
seal, and harp seals. NMFS is also proposing to include appropriate,
additional shutdown mitigation provisions for all species in the
modified LOA. The monitoring and reporting measures remain the same as
prescribed in the initial LOA. NMFS will also consider public comments
on the requested modification prior to making any final decision and
agency responses will be summarized in the final notice of our
decision.
DATES: Comments and information must be received no later than January
19, 2023.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written comments should be submitted
via email to [email protected].
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. Attachments to comments will be
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All
comments received are a part of the public record and will generally be
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All
personal identifying information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
FOR FURTHER INFORMATION CONTACT: Cara Hotchkin, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application and supporting documents (including NMFS Federal Register
notices of the original proposed and final authorizations, and the
previous IHA), as well as a list of the references cited in this
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the
contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct 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 and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
[[Page 343]]
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
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 review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action remains consistent with categories of activities
identified in Categorical Exclusion B4 (incidental harassment
authorizations with no anticipated serious injury or mortality) of the
Companion Manual for NOAA Administrative Order 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 preliminarily determined
that the issuance of the proposed modified LOA continues to qualify to
be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
LOA Modification request.
History of Request
On December 15, 2021, NMFS issued a final rule to the Navy (86 FR
71162) to incidentally harass, by Level A and Level B harassment only,
marine mammals during construction activities associated with bulkhead
replacement and repairs at Naval Station Newport (NAVSTA Newport) over
the course of 5 years (2022-2027). Subsequently, on January 26, 2022,
NMFS issued a Letter of Authorization (LOA) to the Navy (87 FR 6145)
associated with the final rule. Species authorized for take included
Atlantic white-sided dolphin (Lagenorhynchus acutus), common dolphin
(Delphinus delphis), harbor porpoise (Phocoena phocoena), harbor seal
(Phoca vitulina), gray seal (Halichoerus grypus), harp seal (Pagophilus
groenlandicus), and hooded seal (Cystophora cristata). The effective
dates of this LOA are May 15, 2022 through May 14, 2027.
On November 15, 2022, NMFS received a request from the Navy for a
modification to the NAVSTA Newport bulkhead construction project due to
a change in the construction contractor's plan. On December 15, 2022,
the Navy revised their request to incorporate NMFS's DTH source level
recommendations (available at: https://media.fisheries.noaa.gov/2022-11/PUBLIC%20DTH%20Basic%20Guidance_November%202022.pdf). In its initial
request for incidental take regulations, the Navy did not anticipate
the need for vibratory driving of steel pipe piles or DTH installation
of any pile type. Vibratory driving of steel sheet and H-piles was
included, and analyzed in the rule. However, the construction
contractor for the first phase of the project (S45 bulkhead) has since
determined that vibratory driving of steel pipe piles will be required,
and that DTH hammering may be necessary if obstructions are encountered
that would prevent the use of impact or vibratory hammers to install
piles. Therefore, the Navy is requesting, and NMFS is proposing, to
modify the 2022 LOA to include take incidental to potential vibratory
driving of 30-in steel pipe piles and DTH hammering of 10-in diameter
holes. These updates to the Navy's specified activity would increase
estimated Level B harassment isopleths and, therefore, result in an
increased estimate of exposures by Level B harassment for harbor seal,
gray seal, and harp seal. NMFS has determined that the changes also
necessitate revised shutdown mitigation provisions for vibratory and
DTH pile driving scenarios for all species. The monitoring and
reporting measures remain the same as prescribed in the initial LOA,
and no additional take is requested or proposed for other species.
Description of the Proposed Activity and Anticipated Impacts
The modified LOA would include the same construction activities
(i.e., impact pile driving, vibratory pile driving and removal) in the
same locations that were described in the 2022 final rule (86 FR 71162;
December 15, 2021); for the S45 location, additional vibratory driving
and DTH hammering are proposed. The monitoring and reporting measures
remain the same as prescribed in the initial LOA, while revisions to
the required mitigation measures have been proposed. NMFS refers the
reader to relevant documents related to issuance of the initial LOA,
including the Navy's application, the proposed rule and request for
comments (86 FR 56857; October 13, 2021), final rule (86 FR 71162;
December 15, 2021), and notice of issued LOA (87 FR 6145; February 3,
2022) (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island) for more detailed description of the project activities.
Detailed Description of the Action
A detailed description of the construction activities is found in
the aforementioned documents associated with issuance of the initial
LOA. The location, time of year, and general nature of the activities
are identical to those described in the previous documents. However, as
noted in the History of Request section, the Navy anticipates that
vibratory installation of 30-in steel pipe piles and DTH hammering will
be necessary to complete the S45 phase of the project on time.
Differences between the activities analyzed in the final rule and those
analyzed in support of the proposed modification are shown in Table 1.
Section S45: In its current condition, this section of bulkhead is
in serious condition with a high priority for replacement/repair
because the steel sheet piles and cap exhibit heavy corrosion with
numerous areas that exhibit 100 percent loss of section resulting in
extensive landside erosion.
Under the proposed modification, replacement of Section S45 would
include the demolition and replacement of approximately 310 ft of
existing steel sheet pile bulkhead just south of Pier 1. The existing
bulkhead would then be replaced with a new deadman anchored king pile
system. The system would consist of approximately 4 (30-in) steel pipe
piles; 160 (80 pairs) (22.5-in) Z-shaped sheet piles; and approximately
76 (14-in) H-piles. These piles would be installed approximately 1ft in
front of the existing bulkhead using a combination of vibratory and
impact hammers, as necessary. In the modification request, the Navy has
determined that the four 30-in steel pipe piles will be installed with
a vibratory hammer, rather than the impact hammer considered in the
final rule. Additionally, the Navy has proposed the limited use of a
DTH system on an as needed basis, if obstructions are
[[Page 344]]
encountered that would prevent the use of just impact or vibratory
hammers when installing piles at the S45 facility. The existing steel
sheet pile wall would be excavated landside to a depth of approximately
10 ft below ground surface and cut off at the limit of excavation (see
Figure 1-8 of the LOA application).
Table 1--Bulkhead Pile Installation Activity at the S45 Facility in Initial LOA and the Proposed Modification
--------------------------------------------------------------------------------------------------------------------------------------------------------
Final rule Proposed LOA modification
------------------------------------------------------------------------------------------------------------------------
Pile type Number of
Method Number of piles Number of days Number of piles Number of days piles
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steel sheet pile............... Vibratory/impact.. 80 pair............. 27.................. Vibratory/impact. 80 pair............. 27
Steel pipe pile................ Impact............ 4................... 4................... Vibratory........ 4................... 4
Steel H pile................... Vibratory......... 76.................. 13.................. Vibratory........ 76.................. 13
DTH Holes...................... DTH............... na.................. na.................. DTH.............. 8................... 8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Description of Marine Mammals
A description of the marine mammals in the area of the activities
is found in these previous documents, which remains applicable to this
modified LOA as well. In addition, NMFS has reviewed the 2021 Stock
Assessment Reports (Hayes et al., 2022), information on relevant
Unusual Mortality Events, and recent scientific literature, and
determined that no new information affects our original analysis of
impacts under the initial LOA. (Note that the Potential Biological
Removal of the gray seal Western North Atlantic stock increased from
1,389 to 1,458, and annual mortality and serious injury of the harbor
porpoise Gulf of Maine/Bay of Fundy stock decreased from 217 to 164).
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the final rule, which remains applicable to modification of
the LOA. NMFS is not aware of new information regarding potential
effects.
Estimated Take
A detailed description of the methods and inputs used to estimate
authorized take for the specified activity are found in the proposed
rule (86 FR 56857; October 13, 2021); the descriptions presented in the
proposed rule did not change in the final rule (86 FR 71162; December
15, 2021). The types and sizes of piles, and marine mammal stocks taken
remain unchanged from the final rule. The proposed modification
addresses the addition of vibratory driving of four 30-in steel pipe
piles and ten instances of DTH hammering at the S45 bulkhead, which
would result in increased harassment zone sizes. The Navy anticipates
that up to four days of vibratory driving (up to two piles per day) and
up to eight days of DTH hammering at one hole per day will be required.
Acoustic effects on marine mammals during the specified activity can
occur from impact and vibratory pile installation and removal, and DTH.
The effects of underwater noise from the Navy's proposed activities
have the potential to result in Level A and Level B harassment of
marine mammals in the action area.
The proposed modification includes the use of DTH hammers, which
were not evaluated in the final rule. A DTH hammer is essentially a
drill bit that drills through the bedrock using a rotating function
like a normal drill, in concert with a hammering mechanism operated by
a pneumatic (or sometimes hydraulic) component integrated into to the
DTH hammer to increase speed of progress through the substrate (i.e.,
it is similar to a ``hammer drill'' hand tool). The sounds produced by
DTH methods contain both a continuous non-impulsive component from the
drilling action and an impulsive component from the hammering effect.
Therefore, NMFS treats DTH systems as both impulsive and continuous,
non-impulsive sound source types simultaneously.
Ensonified Area
A detailed description of the operational and environmental
parameters of the activity that are used in estimating the area
ensonified above the acoustic thresholds, including source levels and
transmission loss coefficient, can be found in the proposed rule (86 FR
56857; October 13, 2021), and did not change in the final rule (86 FR
71162; December 15, 2021). The new proposed activities include
vibratory driving of 30-in pipe piles and DTH hammering; for those
activities, we provide a description of the sound source levels and
ensonified areas below.
Sound Source Levels of Proposed Activities--The intensity of pile
driving sounds is greatly influenced by factors such as the type of
piles, hammers, and the physical environment (e.g., sediment type) in
which the activity takes place. The Navy consulted with NMFS on the
appropriate sound source levels to use for vibratory driving, and NMFS
recommended a value based on available measurements of vibratory
driving of 30-in steel pipe piles (CALTRANS, 2020). Source data for the
proposed installation methods and pile types are provided in Table 2.
Note that the source levels in this Table represent the SPL referenced
at a distance of 10 m from the source.
NMFS recommends treating DTH systems as both impulsive and
continuous, non-impulsive sound source types simultaneously. Thus,
impulsive thresholds are used to evaluate Level A harassment, and the
continuous threshold is used to evaluate Level B harassment. The Navy
consulted with NMFS to obtain the appropriate proxy values for DTH
mono-hammers. NMFS recommended proxy levels for Level A harassment
based on available data regarding DTH systems of similar sized piles
and holes (Table 2) (Denes et al., 2019; Guan and Miner, 2020; Reyff
and Heyvaert, 2019; Reyff, 2020; Heyvaert and Reyff, 2021).
[[Page 345]]
Table 2--Source Information for Modified Pile Driving and DTH Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average Peak SPL Average RMS SPL Strike rate Maximum number
(dB re 1 (dB re 1 Average SEL (dB re (strikes per Minutes to of piles per
[micro]Pa) [micro]Pa) 1 [mu]Pa \2\ sec) second) drive day
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Driving 30-in steel pipe piles..... N/A 159 N/A N/A 30 2
10-in DTH mono-hammer........................ 172 167 146 10 240 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
The methods used to calculate the ensonified areas based on the
sound source information in Table 2 are identical to those used in the
final rule; details are provided in the Proposed Rule (86 FR 56857;
October 13, 2021). The resulting Level A and Level B harassment
isopleths are provided in Tables 3 and 4.
Table 3--Calculated Distance and Areas of Level A and Level B Harassment for Impulsive Noise (DTH)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment \2\ Level B harassment
Total ----------------------------------------------------------------------------------
Activity Duration, count, production Mid-Frequency High Frequency
size, and or rate days Cetaceans Cetaceans (Harbor Phocid Pinnipeds Harbor Porpoise
(Dolphins) Porpoise) and Phocids
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH (10-in holes)............... 4 hours/day (1 hole/ 8 3.3 m/0.000034 km 111.6 m/0.019204 km 50.1 m/0.004657 km See Table 4.
day). \2\. \2\. \2\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 4--Calculated Distance and Areas of Level A and Level B Harassment for Non-Impulsive Noise (Vibratory, DTH)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment \2\ Level B harassment
Total ----------------------------------------------------------------------------------
Activity Duration, count, production Mid-Frequency High Frequency
size, and or rate days Cetaceans Cetaceans (Harbor Phocid Pinnipeds Harbor Porpoise
(Dolphins) Porpoise) and Phocids
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH (10-in holes)............... 4 hours/day (1 hole/ 8 See Table 3 13,594 m/7.80374
day). km.\2\
---------------------------------------------------------------
30-in Steel Pipe Vibratory...... 1 hour/day (2 piles/ 4 0.4 m/0.000001 7.4 m/0.000152 3.1 m/0.00003 3,981 m/6.741652
day). km.\2\. km.\2\. km.\2\. km.\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Mammal Occurrence and Take Calculation and Estimation
A description of the methods used to estimate take anticipated to
occur from the project is found in the project's aforementioned
documents. The methods of estimating take are identical to those used
in the final rule. Table 5 shows the authorized takes at the S45
facility under the initial LOA (all in year 1) and the estimated takes
from the proposed modification.
Table 5--Take Estimates at S45 Facility Under the Initial LOA and the Proposed Modification
----------------------------------------------------------------------------------------------------------------
Initial LOA (year 1; S45) Proposed modification
---------------------------------------------------------------
Level A Level B Level A Level B
----------------------------------------------------------------------------------------------------------------
Atlantic White-sided Dolphin.................... 0 1 0 1
Common Dolphin.................................. 0 3 0 3
Harbor Porpoise................................. 1 4 1 4
Harbor Seal..................................... 15 188 15 244
Gray Seal....................................... 3 40 3 52
Harp Seal....................................... 1 16 1 20
Hooded Seal..................................... 0 0 0 0
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Table 6--Take Estimates as a Percentage of Stock Abundance for the Proposed Modification for Year 1 Takes at the
S45 Facility
----------------------------------------------------------------------------------------------------------------
Level A Level B
Species Stock (NEST) harassment harassment Percent of stock
----------------------------------------------------------------------------------------------------------------
Atlantic White-sided Dolphin..... Western North Atlantic 0 3 Less than 1
(93,233). percent.
Common Dolphin................... Western North Atlantic 0 3 Less than 1
(172,947). percent.
Harbor Porpoise.................. Gulf of Maine/Bay of 1 4 Less than 1
Fundy (95,543). percent.
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Harbor Seal...................... Western North Atlantic 15 244 Less than 1
(61,336). percent.
Gray Seal........................ Western North Atlantic 3 52 Less than 1
(451,431). percent.
Harp Seal........................ Western North Atlantic 1 20 Less than 1
(7.6 million). percent.
Hooded Seal...................... Western North Atlantic 0 0 Less than 1
(593,500). percent.
----------------------------------------------------------------------------------------------------------------
Description of Proposed Mitigation, Monitoring and Reporting Measures
The reporting measures proposed are identical to those included in
the initial LOA and the discussion of the least practicable adverse
impact included in 2022 final rule. The monitoring and mitigation
measures have been updated to include additional hydroacoustic
monitoring and conservative shutdown zones. The following measures are
proposed for inclusion in the LOA Modification, and are in addition to
those described in the Final Rule (86 FR 71162; December 15, 2021):
Supplemental hydroacoustic monitoring will include:
[cir] 30-in Steel Pipe--vibratory driving: 2 piles; and
[cir] Obstruction drilling--DTH hammer: up to 8 holes (if required
for pile installation).
Shutdown zones for the new activities identical to those
identified in the Final Rule (86 FR 71162; December 15, 2021):
[cir] DTH Obstruction Drilling: The maximum shutdown zone included
in the initial LOA is 150 m. This distance is greater than the
calculated distance to Level A harassment thresholds for marine mammal
species from DTH activities at the S45 facility, which is 111.6 m for
harbor porpoise. The Navy proposes to implement the same 150 m shutdown
distance for cetaceans and pinnipeds when conducting DTH activities.
[cir] Vibratory driving steel pipe piles: the greatest calculated
distance to Level A harassment thresholds for species at this location
is 7.4 m, which is less than the standard construction shutdown of 10 m
to prevent equipment/mammal interactions. However, for consistency the
Navy has proposed a 30 m shutdown distance for cetaceans and 10 m for
pinnipeds from vibratory pile driving steel pipe piles, which is the
same as for vibratory driving steel sheet piles in the issued
authorization.
Preliminary Determinations
With the exception of the revised take numbers and monitoring and
mitigation measures, the Navy's in water construction activities as
well as reporting requirements are unchanged from those in the initial
LOA. The effects of the activity on the affected species and stocks,
taking into consideration the modified mitigation and related
monitoring measures, remain unchanged, notwithstanding the increase to
the authorized amount of harbor seal, gray seal, and harp seal take by
Level B harassment.
The additional takes from Level B harassment would be due to
potential behavioral disturbance and TTS. No serious injury or
mortality is anticipated given the nature of the activity and measures
designed to minimize the possibility of injury to marine mammals. The
potential for harassment is minimized through the construction method
and the implementation of the planned mitigation measures (see
Description of Mitigation, Monitoring and Reporting Measures section).
The Navy's proposed pile driving project precludes the likelihood
of serious injury or mortality. For all species and stocks, take would
occur within a limited, confined area (immediately surrounding NAVSTA
Newport in the Narragansett Bay area) of the stock's range. Level A and
Level B harassment will be reduced to the level of least practicable
adverse impact through use of mitigation measures described herein.
Furthermore, the amount of take proposed to be authorized is extremely
small when compared to stock abundance.
The additional 72 takes of harbor, gray, and harp seals represents
an increase of approximately 5.7 percent of the total take authorized
in the initial LOA, and the anticipated impacts are identical to those
described in the 2022 final rule. The amount of additional take for
each species is also small (less than 1 percent of each stock). The
Navy has proposed additional hydro-acoustic monitoring of the new
activities, which will improve understanding of the source levels of
such activities for future work. The proposed modification to the LOA
includes additional required mitigation and monitoring measures (albeit
some minor modification to harassment and shutdown distances), and
identical reporting measures as the 2022 LOA.
In conclusion, there is no new information suggesting that our
analysis or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has preliminarily determined the following: (1) the
required mitigation measures will effect the least practicable impact
on marine mammal species or stocks and their habitat; (2) the proposed
authorized takes will have a negligible impact on the affected marine
mammal species or stocks; (3) the proposed authorized takes represent
small numbers of marine mammals relative to the affected stock
abundances; and (4) Navy's activities will not have an unmitigable
adverse impact on taking for subsistence purposes as no relevant
subsistence uses of marine mammals are implicated by this action, and
(5) appropriate monitoring and reporting requirements are included..
Endangered Species Act (ESA)
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 proposed for
authorization 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.
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an LOA modification to the United States Navy for conducting
construction activities for bulkhead replacement and repairs at the S45
Facility at Naval Station Newport (NAVSTA Newport),
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Rhode Island, provided the previously mentioned mitigation, monitoring,
and reporting requirements are incorporated. A draft of the proposed
modified LOA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.
Request for Public Comments
We request comment on our analyses on the proposed modification and
supporting analyses described in this notice of Proposed LOA
Modification for the proposed construction activities for bulkhead
replacement and repairs at the S45 Facility. Please include with your
comments any supporting data or literature citations to help inform our
final decision on the request for MMPA authorization.
Dated: December 28, 2022.
Daniel Bess,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2022-28546 Filed 1-3-23; 8:45 am]
BILLING CODE 3510-22-P
