Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction at Naval Station Newport, Rhode Island, 5856-5860 [2023-01807]
Download as PDF
<![CDATA[
5856
Federal Register / Vol. 88, No. 19 / Monday, January 30, 2023 / Notices
Matters To Be Considered: Board
members will discuss and vote on New
Membership for the Board’s Resilience
and Social Justice Subcommittee and a
Resilience and Social Justice
Recommendations Report, as well as
discuss and vote on membership for two
new charges, Fellowships and
Allocation Policy. https://seagrant.
noaa.gov/About/Advisory-Board
Privacy Act Statement: Authority. The
collection of information concerning
nominations to the MCAM FAC is
authorized under the FACA, as
amended, 5 U.S.C. App. and its
implementing regulations, 41 CFR part
102–3, and in accordance with the
Privacy Act of 1974, as amended,
(Privacy Act) 5 U.S.C. 552a. Purpose.
The collection of names, contact
information, resumes, professional
information, and qualifications is
required in order for the Under
Secretary to appoint members to the
MCAM FAC. Routine Uses. NOAA will
use the nomination information for the
purpose set forth above. The Privacy Act
of 1974 authorizes disclosure of the
information collected to NOAA staff for
work-related purposes and for other
purposes only as set forth in the Privacy
Act and for routine uses published in
the Privacy Act System of Records
Notice COMMERCE/DEPT–11,
Candidates for Membership, Members,
and Former Members of Department of
Commerce Advisory Committees,
available at https://www.osec.doc.gov/
opog/PrivacyAct/SORNs/dept-11.html
and the System of Records Notice
COMMERCE/DEPT–18, Employees
Personnel Files Not Covered by Notices
of Other Agencies, available at https://
www.osec.doc.gov/opog/PrivacyAct/
SORNs/DEPT-18.html.
Disclosure: Furnishing the
nomination information is voluntary;
however, if the information is not
provided, the individual would not be
considered for appointment as a
member of the MCAM FAC.
David Holst,
Chief Financial Officer/Administrative
Officer, Office of Oceanic and Atmospheric
Research, National Oceanic and Atmospheric
Administration.
lotter on DSK11XQN23PROD with NOTICES1
[FR Doc. 2023–01768 Filed 1–27–23; 8:45 am]
BILLING CODE 3510–KA–P
VerDate Sep<11>2014
17:30 Jan 27, 2023
Jkt 259001
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XC706]
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; issuance of a modified
Letter of Authorization.
AGENCY:
In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA) as
amended, notification is hereby given
that NMFS has issued a modified Letter
of Authorization to the U.S. Navy to
incidentally harass, by Level B
harassment only, marine mammals
during construction activities associated
with pile driving and bulkhead repair at
Naval Station Newport in Newport,
Rhode Island.
DATES: This Authorization is effective
from January 25, 2023 to May 14, 2027.
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/action/
incidental-take-authorization-us-navyconstruction-naval-station-newportrhode-island. In case of problems
accessing these documents, please call
the contact listed above.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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.
PO 00000
Frm 00007
Fmt 4703
Sfmt 4703
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.
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%20
Basic%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 Hpiles was included, and analyzed in the
rule. However, the construction
contractor for the first phase of the
project (S45 bulkhead) has since
E:\FR\FM\30JAN1.SGM
30JAN1
Federal Register / Vol. 88, No. 19 / Monday, January 30, 2023 / Notices
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 requested, and
NMFS proposed, 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 will 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 authorized for other
species. There have been no changes
from the proposed modification.
lotter on DSK11XQN23PROD with NOTICES1
Description of the Specified Activity
and Anticipated Impacts
The modified LOA includes 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 included. The
monitoring and reporting measures
remain the same as prescribed in the
initial LOA, while revisions to the
required mitigation measures have been
made. 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 planned
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
VerDate Sep<11>2014
17:30 Jan 27, 2023
Jkt 259001
hammering will be necessary to
complete the S45 phase of the project on
time.
A detailed description of the planned
S45 bulkhead modifications is provided
in the Federal Register notice for the
proposed LOA Modification (88 FR 342;
January 4, 2023). Since that time, no
changes have been made to the planned
construction activities. Therefore, a
detailed description is not provided
here. Please refer to that Federal
Register notice for the description of the
specific activity.
Comments and Responses
A notice of NMFS’ proposal to issue
a Modified LOA to the Navy was
published in the Federal Register on
January 4, 2023 (88 FR 342). That notice
described, in detail, the Navy’s modified
activities. In that notice, we requested
public input on the request for
authorization described therein, our
analyses, the proposed authorization,
and any other aspect of the notice of
proposed LOA modification, and
requested that interested persons submit
relevant information, suggestions, and
comments. This proposed notice was
available for a 15-day public comment
period. NMFS received no public
comments on the proposed
modification.
Description of Marine Mammals
A detailed description of the marine
mammals in the area of the activities is
found in relevant documents related to
issuance of the initial LOA, including
the Navy’s application, and the
proposed rule and request for comments
(86 FR 56857; October 13, 2021). This
information remains applicable to this
modified LOA. A description of the
modified construction activities at the
S45 bulkhead, 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
Federal Register of proposed LOA
Modification (88 FR 342; January 4,
2023); since that time, we are not aware
of any changes in the status of these
species and stocks; therefore, detailed
descriptions are not provided here.
Please refer to that Federal Register
notice for these descriptions. Please also
refer to NMFS’ website (https://
www.fisheries.noaa.gov/find-species) for
generalized species accounts.
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
PO 00000
Frm 00008
Fmt 4703
Sfmt 4703
5857
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. This modification addresses the
addition of vibratory driving of four 30in 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 activities have the potential to
result in Level A and Level B
harassment of marine mammals in the
action area.
The 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
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).
E:\FR\FM\30JAN1.SGM
30JAN1
5858
Federal Register / Vol. 88, No. 19 / Monday, January 30, 2023 / Notices
The new 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 Construction
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
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 1) (Denes et al., 2019; Guan and
Miner, 2020; Reyff and Heyvaert, 2019;
Reyff, 2020; Heyvaert and Reyff, 2021).
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
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,
TABLE 1—SOURCE INFORMATION FOR MODIFIED PILE DRIVING AND DTH ACTIVITIES
Average peak
SPL
(dB re 1 μPa)
Average RMS
SPL
(dB re 1 μPa)
N/A
172
159
167
Vibratory Driving 30-in steel pipe piles .....................................
10-in DTH mono-hammer .........................................................
The methods used to calculate the
ensonified areas based on the sound
source information in Table 2 are
Average SEL
(dB re 1
μPa2 sec)
Strike rate
(strikes per
second)
N/A
146
identical to those used in the final rule;
details are provided in the Proposed
Rule (86 FR 56857; October 13, 2021).
Minutes to
drive
N/A
10
Maximum
number of
piles per day
30
240
2
1
The resulting Level A and Level B
harassment isopleths are provided in
Tables 2 and 3.
TABLE 2—CALCULATED DISTANCE AND AREAS OF LEVEL A AND LEVEL B HARASSMENT FOR IMPULSIVE NOISE (DTH)
Level A harassment 2
Activity
DTH (10-in holes) ........
Duration, count,
size, and or rate
Total
production
days
4 hours/day (1 hole/
day).
8
Level B harassment
Mid-frequency
cetaceans
(dolphins)
High frequency
cetaceans
(harbor porpoise)
3.3 m/0.000034 km2 ...
111.6 m/0.019204 km2
Harbor porpoise and
phocids
Phocid pinnipeds
50.1 m/0.004657 km2
See Table 4.
TABLE 3—CALCULATED DISTANCE AND AREAS OF LEVEL A AND LEVEL B HARASSMENT FOR NON-IMPULSIVE NOISE
(VIBRATORY, DTH)
Level A harassment 2
Duration, count,
size, and or rate
Total
production
days
DTH (10-in holes) ........
4 hours/day (1 hole/
day).
8
30-in Steel Pipe Vibratory.
1 hour/day (2 piles/
day).
4
Activity
Mid-frequency
cetaceans
(dolphins)
Level B harassment
High frequency
cetaceans
(harbor porpoise)
I
I
13,594 m/7.80374 km2
See Table 3
0.4 m/0.000001 km2 ...
7.4 m/0.000152 km2 ...
I
Marine Mammal Occurrence and Take
Calculation and Estimation
A description of the methods used to
estimate take anticipated to occur from
Harbor porpoise and
phocids
Phocid pinnipeds
3.1 m/0.00003 km2 .....
3,981 m/6.741652 km2
I
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 4
shows the authorized takes at the S45
facility under the initial LOA (all in year
1) and the estimated takes from the
modified activities.
TABLE 4—TAKE ESTIMATES AT S45 FACILITY UNDER THE INITIAL LOA AND THE MODIFICATION
Initial LOA
(year 1; S45)
lotter on DSK11XQN23PROD with NOTICES1
Level A
Atlantic White-sided Dolphin ............................................................................
Common Dolphin .............................................................................................
Harbor Porpoise ...............................................................................................
Harbor Seal ......................................................................................................
Gray Seal .........................................................................................................
Harp Seal .........................................................................................................
Hooded Seal ....................................................................................................
VerDate Sep<11>2014
17:30 Jan 27, 2023
Jkt 259001
PO 00000
Frm 00009
Fmt 4703
Sfmt 4703
Modified LOA
Level B
0
0
1
15
3
1
0
E:\FR\FM\30JAN1.SGM
1
3
4
188
40
16
0
30JAN1
Level A
Level B
0
0
1
15
3
1
0
1
3
4
244
52
20
0
5859
Federal Register / Vol. 88, No. 19 / Monday, January 30, 2023 / Notices
lotter on DSK11XQN23PROD with NOTICES1
TABLE 5—TAKE ESTIMATES AS A PERCENTAGE OF STOCK ABUNDANCE FOR THE MODIFICATION FOR YEAR 1 TAKES AT
THE S45 FACILITY
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 (172,947) ............................
Gulf of Maine/Bay of Fundy (95,543) ......................
Western North Atlantic (61,336) ..............................
Western North Atlantic (451,431) ............................
Western North Atlantic (7.6 million) .........................
Western North Atlantic (593,500) ............................
Description of Mitigation, Monitoring
and Reporting Measures
The reporting measures are identical
to those included in the initial LOA
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 included 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 are 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
will 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 will implement 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 initial authorization.
Determinations
With the exception of the revised take
numbers and monitoring and mitigation
measures, the Navy’s planned in water
VerDate Sep<11>2014
17:30 Jan 27, 2023
Jkt 259001
Level A
harassment
Level B
harassment
0
0
1
15
3
1
0
3
3
4
244
52
20
0
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 will 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 pile driving project is
unlikely to result in 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
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 will
conduct additional hydro-acoustic
monitoring of the new activities, which
will improve understanding of the
source levels of such activities for future
work. The modification to the LOA
includes additional required mitigation
and monitoring measures (albeit some
PO 00000
Frm 00010
Fmt 4703
Sfmt 4703
Percent of stock
Less
Less
Less
Less
Less
Less
Less
than
than
than
than
than
than
than
1
1
1
1
1
1
1
percent.
percent.
percent.
percent.
percent.
percent.
percent.
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 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 authorized takes
will have a negligible impact on the
affected marine mammal species or
stocks; (3) the 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.
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 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
determined that the issuance of the
modified LOA continues to qualify to be
categorically excluded from further
NEPA review.
E:\FR\FM\30JAN1.SGM
30JAN1
5860
Federal Register / Vol. 88, No. 19 / Monday, January 30, 2023 / Notices
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 expected to result from this
activity, and none is authorized herein.
Therefore, NMFS has determined that
formal consultation under section 7 of
the ESA is not required for this action.
Authorization
NMFS has issued a modified LOA to
the Navy for the potential harassment of
small numbers of three marine mammal
species incidental to construction at the
S45 Bulkhead at Naval Station Newport
in Newport, Rhode Island, that includes
the previously explained mitigation,
monitoring, and reporting requirements.
Dated: January 25, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2023–01807 Filed 1–27–23; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
lotter on DSK11XQN23PROD with NOTICES1
Agency Information Collection
Activities; Submission to the Office of
Management and Budget (OMB) for
Review and Approval; Comment
Request; Post Allowance and Reissue
The United States Patent and
Trademark Office (USPTO) will submit
the following information collection
request to the Office of Management and
Budget (OMB) for review and clearance
in accordance with the Paperwork
Reduction Act of 1995, on or after the
date of publication of this notice. The
USPTO invites comment on this
information collection renewal, which
helps the USPTO assess the impact of
its information collection requirements
and minimize the public’s reporting
burden. Public comments were
previously requested via the Federal
Register on November 22, 2022 during
a 60-day comment period. This notice
allows for an additional 30 days for
public comments.
VerDate Sep<11>2014
17:30 Jan 27, 2023
Jkt 259001
Agency: United States Patent and
Trademark Office, Department of
Commerce.
Title: Post Allowance and Reissue.
OMB Control Number: 0651–0033.
Needs and Uses: This collection of
information covers the submission of
issue fee payments, requests for
certificates of correction, and reissue
applications to the United States Patent
and Trademark Office (USPTO). The
USPTO is required by 35 U.S.C. 131 and
151 to examine applications and, when
appropriate, allow applications and
issue them as patents. When an
application for a patent is allowed by
the USPTO, the USPTO issues a notice
of allowance and the applicant must pay
the specified issue fee within three
months to avoid abandonment of the
application. If the appropriate fees are
paid within the proper time period, the
USPTO can then issue the patent. The
rules outlining the procedures for
payment of the issue fee and issuance of
a patent are found at 37 CFR 1.18, 1.311,
and 1.314.
This collection of information also
covers several transactions that may be
taken after issuance of a patent.
Pursuant to 35 U.S.C 254 and 255, a
certificate of correction may be
requested to correct an error or errors in
an issued patent. If the USPTO
determines that the request should be
approved, the USPTO will issue a
certificate of correction.
For an original patent that is believed
to be wholly or partly inoperative or
invalid, the original patentee, or the
current patent owner if there has been
a subsequent assignment, may apply for
reissue of the patent. The reissue
application process requires, among
other items, provision of an oath or
declaration specifically identifying at
least one error being relied upon as the
basis for reissue and stating the reason
for the belief that the original patent is
wholly or partly inoperative or invalid
(e.g., a defective specification or
drawing, or claiming more or less than
the patentee had the right to claim in
the patent). The rules outlining reissue
application procedures are found at 37
CFR 1.171–1.173 and 1.175–1.178.
The title of this item has been
changed from ‘‘Post Allowance and
Refiling’’ to ‘‘Post Allowance and
Reissue’’ to better reflect the nature of
the items in this information collection.
Form Number(s): (AIA = America
Invents Act; SB = Specimen Book; PTOL
= Patent & Trademark Office Legal
Form).
• PTO/AIA/05, PTO/AIA/06, PTO/SB/
51, PTO/SB/52 (Reissue Application
Declaration by the Inventor or the
Assignee)
PO 00000
Frm 00011
Fmt 4703
Sfmt 4703
• PTO/AIA/07 (Substitute Statement in
Lieu of an Oath or Declaration for
Reissue Patent Application (35 U.S.C.
115(d) and 37 CFR 1.64))
• PTO/AIA/50 (Reissue Patent
Application Transmittal)
• PTO/AIA/53, PTO/SB/53 (Reissue
Application: Consent of Assignee;
Statement of Non-Assignment)
• PTO/SB/44 (Certificate of Correction)
• PTO/SB/51S, (Supplemental
Declaration for Reissue Patent
Application to Correct ‘‘Errors’’
Statement (pre-AIA 37 CFR 1.175(c)))
• PTO/SB/56 (Reissue Application Fee
Transmittal Form)
• PTOL–85B (Issue Fee Transmittal)
Type of Review: Extension and
revision of a currently approved
information collection.
Affected Public: Private sector;
individuals or households.
Respondent’s Obligation: Required to
obtain or retain benefits.
Frequency: On occasion.
Estimated Number of Annual
Respondents: 426,301 respondents.
Estimated Number of Annual
Responses: 426,301 responses.
Estimated Time per Response: The
USPTO estimates that the responses in
this information collection will take the
public approximately between 30
minutes (0.5 hours) and 5.3 hours to
complete. This includes the time to
gather the necessary information, create
the document, and submit the
completed request to the USPTO.
Estimated Total Annual Respondent
Burden Hours: 373,568 hours.
Estimated Total Annual Respondent
Non-Hourly Cost Burden: $434,518,228.
This information collection request
may be viewed at www.reginfo.gov.
Follow the instructions to view
Department of Commerce, USPTO
information collections currently under
review by OMB.
Written comments and
recommendations for this information
collection should be submitted within
30 days of the publication of this notice
on the following website
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection by selecting ‘‘Currently under
30-day Review—Open for Public
Comments’’ or by using the search
function and entering either the title of
the information collection or the OMB
Control Number 0651–0033.
Further information can be obtained
by:
• Email: InformationCollection@
uspto.gov. Include ‘‘0651–0033
information request’’ in the subject line
of the message.
• Mail: Justin Isaac, Office of the
Chief Administrative Officer, United
E:\FR\FM\30JAN1.SGM
30JAN1
]]>Agencies
[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Notices]
[Pages 5856-5860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01807]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC706]
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; issuance of a modified Letter of Authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued a modified Letter of Authorization to the U.S.
Navy to incidentally harass, by Level B harassment only, marine mammals
during construction activities associated with pile driving and
bulkhead repair at Naval Station Newport in Newport, Rhode Island.
DATES: This Authorization is effective from January 25, 2023 to May 14,
2027.
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/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island. 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.
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.
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
[[Page 5857]]
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 requested, and NMFS proposed, 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 will 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
authorized for other species. There have been no changes from the
proposed modification.
Description of the Specified Activity and Anticipated Impacts
The modified LOA includes 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 included. The monitoring and reporting measures
remain the same as prescribed in the initial LOA, while revisions to
the required mitigation measures have been made. 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 planned 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.
A detailed description of the planned S45 bulkhead modifications is
provided in the Federal Register notice for the proposed LOA
Modification (88 FR 342; January 4, 2023). Since that time, no changes
have been made to the planned construction activities. Therefore, a
detailed description is not provided here. Please refer to that Federal
Register notice for the description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue a Modified LOA to the Navy was
published in the Federal Register on January 4, 2023 (88 FR 342). That
notice described, in detail, the Navy's modified activities. In that
notice, we requested public input on the request for authorization
described therein, our analyses, the proposed authorization, and any
other aspect of the notice of proposed LOA modification, and requested
that interested persons submit relevant information, suggestions, and
comments. This proposed notice was available for a 15-day public
comment period. NMFS received no public comments on the proposed
modification.
Description of Marine Mammals
A detailed description of the marine mammals in the area of the
activities is found in relevant documents related to issuance of the
initial LOA, including the Navy's application, and the proposed rule
and request for comments (86 FR 56857; October 13, 2021). This
information remains applicable to this modified LOA. A description of
the modified construction activities at the S45 bulkhead, 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 Federal
Register of proposed LOA Modification (88 FR 342; January 4, 2023);
since that time, we are not aware of any changes in the status of these
species and stocks; therefore, detailed descriptions are not provided
here. Please refer to that Federal Register notice for these
descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.
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. This 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 activities have the
potential to result in Level A and Level B harassment of marine mammals
in the action area.
The 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).
[[Page 5858]]
The new 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 Construction 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
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 1) (Denes et al., 2019; Guan and Miner, 2020; Reyff
and Heyvaert, 2019; Reyff, 2020; Heyvaert and Reyff, 2021).
Table 1--Source Information for Modified Pile Driving and DTH Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average peak Average RMS Average SEL Strike rate Maximum number
SPL (dB re 1 SPL (dB re 1 (dB re 1 (strikes per Minutes to of piles per
[mu]Pa) [mu]Pa) [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 2 and 3.
Table 2--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 High frequency
size, and or rate days Mid-frequency cetaceans (harbor Phocid pinnipeds Harbor porpoise and
cetaceans (dolphins) porpoise) phocids
--------------------------------------------------------------------------------------------------------------------------------------------------------
DTH (10-in holes)................ 4 hours/day (1 hole/ 8 3.3 m/0.000034 km\2\ 111.6 m/0.019204 50.1 m/0.004657 See Table 4.
day). km\2\. km\2\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 3--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 High frequency
size, and or rate days Mid-frequency cetaceans (harbor Phocid pinnipeds Harbor porpoise and
cetaceans (dolphins) porpoise) 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 km\2\ 7.4 m/0.000152 3.1 m/0.00003 km\2\ 3,981 m/6.741652
day). 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 4 shows the authorized takes at the S45
facility under the initial LOA (all in year 1) and the estimated takes
from the modified activities.
Table 4--Take Estimates at S45 Facility Under the Initial LOA and the Modification
----------------------------------------------------------------------------------------------------------------
Initial LOA (year 1; S45) Modified LOA
---------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
[[Page 5859]]
Table 5--Take Estimates as a Percentage of Stock Abundance for the 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 percent.
(93,233).
Common Dolphin..................... Western North Atlantic 0 3 Less than 1 percent.
(172,947).
Harbor Porpoise.................... Gulf of Maine/Bay of Fundy 1 4 Less than 1 percent.
(95,543).
Harbor Seal........................ Western North Atlantic 15 244 Less than 1 percent.
(61,336).
Gray Seal.......................... Western North Atlantic 3 52 Less than 1 percent.
(451,431).
Harp Seal.......................... Western North Atlantic 1 20 Less than 1 percent.
(7.6 million).
Hooded Seal........................ Western North Atlantic 0 0 Less than 1 percent.
(593,500).
----------------------------------------------------------------------------------------------------------------
Description of Mitigation, Monitoring and Reporting Measures
The reporting measures are identical to those included in the
initial LOA 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
included 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 are 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 will 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 will implement 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 initial
authorization.
Determinations
With the exception of the revised take numbers and monitoring and
mitigation measures, the Navy's planned 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 will 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 pile driving project is unlikely to result in 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 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 will conduct additional hydro-acoustic monitoring of the new
activities, which will improve understanding of the source levels of
such activities for future work. The 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 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 authorized takes
will have a negligible impact on the affected marine mammal species or
stocks; (3) the 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.
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 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 determined that the
issuance of the modified LOA continues to qualify to be categorically
excluded from further NEPA review.
[[Page 5860]]
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 expected to result from
this activity, and none is authorized herein. Therefore, NMFS has
determined that formal consultation under section 7 of the ESA is not
required for this action.
Authorization
NMFS has issued a modified LOA to the Navy for the potential
harassment of small numbers of three marine mammal species incidental
to construction at the S45 Bulkhead at Naval Station Newport in
Newport, Rhode Island, that includes the previously explained
mitigation, monitoring, and reporting requirements.
Dated: January 25, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-01807 Filed 1-27-23; 8:45 am]
BILLING CODE 3510-22-P
