Rule2021-27133
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to U.S. Navy Construction at Naval Station Newport in Newport, Rhode Island
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 15, 2021
Effective
May 15, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS, upon request of the U.S. Navy (Navy), hereby issues regulations to govern the unintentional taking of marine mammals incidental to construction activities for bulkhead replacement and repairs at Naval Station Newport (NAVSTA Newport) over the course of five years (2022-2027). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
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<title>Federal Register, Volume 86 Issue 238 (Wednesday, December 15, 2021)</title>
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[Federal Register Volume 86, Number 238 (Wednesday, December 15, 2021)]
[Rules and Regulations]
[Pages 71162-71180]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27133]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 211208-0254]
RIN 0648-BK69
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to U.S. Navy Construction at Naval
Station Newport in Newport, Rhode Island
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
[[Page 71163]]
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS, upon request of the U.S. Navy (Navy), hereby issues
regulations to govern the unintentional taking of marine mammals
incidental to construction activities for bulkhead replacement and
repairs at Naval Station Newport (NAVSTA Newport) over the course of
five years (2022-2027). These regulations, which allow for the issuance
of a Letter of Authorization (LOA) for the incidental take of marine
mammals during the described activities and specified timeframes,
prescribe the permissible methods of taking and other means of
effecting the least practicable adverse impact on marine mammal species
or stocks and their habitat, as well as requirements pertaining to the
monitoring and reporting of such taking.
DATES: Effective from May 15, 2022, through May 14, 2027.
ADDRESSES: A copy of the Navy's application and supporting documents,
as well as a list of the references cited in this document, may be
obtained online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island</a>. In case of problems accessing these documents, please call the
contact listed below.
FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for Regulatory Action
We received an application from the Navy requesting five-year
regulations and authorization to take multiple species of marine
mammals. This rule establishes a framework under the authority of the
Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) to allow
for the authorization of take by Level A and Level B harassment
incidental to the Navy's construction activities, including impact and
vibratory pile driving. Please see Background below for definitions of
harassment.
Legal Authority for the Planned Action
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs
the Secretary of Commerce to allow, upon request, the incidental, but
not intentional taking of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographical region for up to five years
if, after notice and public comment, the agency makes certain findings
and issues regulations that set forth permissible methods of taking
pursuant to that activity and other means of effecting the ``least
practicable adverse impact'' on the affected species or stocks and
their habitat (see the discussion below in the Mitigation section), as
well as monitoring and reporting requirements. Section 101(a)(5)(A) of
the MMPA and the implementing regulations at 50 CFR part 216, subpart R
provide the legal basis for issuing this final rule containing five-
year regulations, and for any subsequent LOAs. As directed by this
legal authority, this final rule contains mitigation, monitoring, and
reporting requirements.
Summary of Major Provisions Within the Final Rule
Following is a summary of the major provisions of this final rule
regarding Navy construction activities. These measures include:
<bullet> Required monitoring of the construction areas to detect
the presence of marine mammals before beginning construction
activities;
<bullet> Shutdown of construction activities under certain
circumstances to avoid injury of marine mammals; and
<bullet> Soft start for impact pile driving to allow marine mammals
the opportunity to leave the area prior to beginning impact pile
driving at full power.
Background
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs
the Secretary of Commerce (as delegated to NMFS) to allow, upon
request, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographical region
if certain findings are made, regulations are issued, and notice is
provided to the public.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant), and if the permissible methods of taking and
requirements pertaining to the mitigation, monitoring and reporting of
the takings are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Summary of Request
In July 2020, NMFS received a request from the Navy requesting
authorization to take small numbers of seven species of marine mammals
incidental to construction activities including bulkhead replacement
and repairs at NAVSTA Newport. NMFS reviewed the Navy's application,
and the Navy provided responses addressing NMFS' questions and comments
on February 22, 2021. The application was deemed adequate and complete
and published for public review and comment on May 19, 2021 (86 FR
27069). We did not receive substantive comments on that notice and
request for comments and information. We subsequently published a
proposed rule in the Federal Register on October 13, 2021 (86 FR
56857). Comments received during the public comment period on the
proposed regulations are addressed in the Comments and Responses
section of this final rule.
The Navy requested authorization to take a small number of seven
species of marine mammals by Level A and B harassment. Neither the Navy
nor NMFS expects serious injury or mortality to result from this
activity. The regulations are valid for five years (2022-2027).
Description of Specified Activity
The Navy plans to replace or repair several sections of
deteriorating, unstable, hazardous, and eroding bulkhead, sheet pile,
and revetment (approximately 2,730 total linear feet (ft)) along the
Coddington Cove waterfront of NAVSTA Newport. Over time, the existing
storm sewer systems and bulkheads along the Coddington Cove waterfront
have severely degraded due to erosion from under-capacity stormwater
system piping and aging infrastructure. This impacts the ability of the
installation to minimize shoreline erosion and minimize safety risks
from associated upland subsidence, while also maintaining potential
berthing space. The Navy plans to conduct
[[Page 71164]]
necessary work, including impact and vibratory pile driving, to repair
and replace bulkheads over five years. The specified activities may
occur at any time during the 5-year period of validity of the
regulations. The Navy expects pile driving to occur on approximately
222 non-consecutive in-water pile driving days over the five-year
duration. Pile driving activities are anticipated to be completed
within 4 years. However, because the planned construction is dependent
on the allocation of funding, the Navy requested that the LOA be issued
for the entire 5-year construction period to ensure flexibility in the
project schedule. Table 1 provides the anticipated construction
schedule for the planned activities.
Table 1--Coddington Cove Bulkhead Replacement and Repair Summary Schedule
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Revetment
Section ID Bulkhead replacement Outfalls replaced Dredging area Dredging Construction start date
replacement (lf) (lf) (ft\2\) volume (cy)
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S45............................. 310................ 250 Yes (3)........... 8,400 650 May 15, 2022.
S366............................ 90................. 0 Yes (1)........... 1,350 100 October 15, 2023.
Pier 1.......................... 100................ 0 No................ 1,500 120 October 15, 2023.
LNG............................. 650................ 0 Yes (2)........... 9,750 760 October 15, 2024.
S499/Pier 2..................... 510................ 90 Yes (5)........... 9,000 700 October 15, 2025.
S50............................. 730 (repair)....... 0 Yes (2)........... 0 0 October 15, 2026.
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Source: NAVFAC Mid-Atlantic 2018.
The specific sections planned for bulkhead repair and replacement
are described in detail in the proposed rule (86 FR 56857; October 13,
2021) and are summarized in Table 2 below.
Table 2--Bulkhead Pile Installation Activity
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Vibratory Maximum number
Method of pile Number of Strikes per driving of piles Maximum number
Facility driving Pile type Pile size sheets (pairs)/ pile minutes per installed per of pile
piles pile day driving days
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S45.............. Vibratory/Impact Z-shaped Steel 3.75 ft per pair/ 80 pair........ 530 13 10 27
Sheet Pile. 22.5-in each.
Impact.......... Steel Pipe Pile. 30-in........... 4.............. 530 NA 2 4
Vibratory....... Steel H-pile.... 14-in........... 76............. NA 10 12 13
S366............. Vibratory/Impact Z-shaped Steel 3.75 ft per pair/ 14 pair........ 530 13 10 5
Sheet Pile. 22.5-in each.
Impact.......... Steel pipe pile. 30-in diameter.. 15............. 530 NA 2 15
Vibratory....... Steel H-pile.... 14-in........... 14............. NA 10 12 3
S499/Pier 2...... Vibratory/Impact Z-shaped Steel 5.25 ft per pair/ 70 pair........ 530 13 8 23
Sheet Pile. 31.5-in each.
Impact.......... Steel Pipe Pile. 42-in........... 35............. 530 NA 4 18
Vibratory....... Steel H-pile.... 14-in........... 79............. NA 10 12 14
LNG.............. Vibratory/Impact Z-shaped Steel 3.75 ft per pair/ 173 pair....... 530 13 10 58
Sheet Pile. 22.5-in each.
Vibratory....... Steel H-pile.... 14-in........... 164............ NA 10 12 28
Pier 01.......... Vibratory/Impact Z-shaped Steel 3.75 ft per pair/ 27 pair........ 530 13 10 9
Sheet Pile. 22.5-in each.
Vibratory....... Steel H-pile.... 14-in........... 26............. NA 10 12 5
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Total sheet piles pairs/pipe and H-piles installed................. 364/413........
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Total days pile driving........................................ ............... .............. .............. .............. 222
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Legend: NA = not applicable, ft = foot; Start date of in-water work and duration are to be determined.
Since the proposed rule, which contains a detailed description of
the planned construction, was published (86 FR 56857; October 13,
2021), no changes have been made to the planned activities. Therefore,
a detailed description is not provided here. Please refer to the
proposed rule for further description of the specific activity.
Comments and Responses
We published a proposed rule in the Federal Register on October 13,
2021 (86 FR 56857). During the 30-day comment period, we received six
comments from private citizens, with five expressing general support
for the project and one expressing general opposition to the project.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the Navy's application summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history, of the potentially affected
species. Additional information regarding population trends and threats
may be found in NMFS's Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 3 lists all species or stocks for which take is expected and
planned for authorization, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. For taxonomy, we follow Committee on Taxonomy (2021).
[[Page 71165]]
PBR is defined by the MMPA as the maximum number of animals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its optimum
sustainable population (as described in NMFS' SARs). While no mortality
is anticipated or authorized here, PBR and annual serious injury and
mortality from anthropogenic sources are included here as gross
indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al. 2021).
All values presented in Table 3 are the most recent available at the
time of publication and are available in the 2020 SARs (Hayes et al.
2021) or the 2021 draft SARS, available at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>.
Table 3--Marine Mammal Species Likely To Occur Near the Project Area
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -; N 93,233 (0.71; 54,443; 544 27
2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -; N 172,974 (0.21; 1,452 390
145,216; 2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -; N 95,543 (0.31; 74,043; 851 164
Fundy. 2016).
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Order Carnivora--Superfamily Pinnipedia
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Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -,-; N 61,336(0.08/; 57,637, 1,729 339
2018).
Gray seal....................... Halichoerus grypus..... Western North Atlantic. -,-; N 27,300 (0.22, 22,785, 1,389 4,453
2016) \4\.
Harp seal....................... Pagophilus Western North Atlantic. -,-; N 7,600,000 426,000 178,573
groenlandicus. (unk,7,100.000, 2019).
Hooded seal..................... Cystophora cristata.... Western North Atlantic. -,-; N 593,500............... unknown 1,680
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\1\ --Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ --NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ --These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a
minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ --This abundance value and the associated PBR value reflect the US population only. Estimated abundance for the entire Western North Atlantic stock,
including animals in Canada, is 451,600. The annual M/SI estimate is for the entire stock.
As indicated above, all seven species in Table 3 temporally and
spatially co-occur with the activity to the degree that take is
reasonably likely to occur, and we have authorized take. Several
depleted species of whales occur seasonally in the waters off Rhode
Island including Humpback (Megaptera novaeangliae), Fin (Balaenoptera
physalus), Sei (Balaenoptera borealis), Sperm (Physeter macrocephalus)
and North Atlantic Right whales (Eubaleana glacialis). These whales are
seasonally present in New England waters; however, due to the depths of
Narragansett Bay and near shore location of the project area, these
listed marine mammals are unlikely to occur. Therefore, no takes were
requested and none are anticipated or planned for authorization by NMFS
and they are not discussed further.
A detailed description of the species likely to be affected by the
Navy's project, including brief introductions to the species and
relevant stocks as well as available information regarding population
trends and threats, and information regarding local occurrence, were
provided in the proposed rule (86 FR 56857; October 13, 2021). We are
not aware of any changes in the status of these species and stocks
since that time. Please refer to the proposed rule for these
descriptions (86 FR 56857; October 13, 2021).
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et al.
1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible, thus the lower
bound from Southall et al. (2007) is retained. Marine
[[Page 71166]]
mammal hearing groups and their associated hearing ranges are provided
in Table 4.
Table 4--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al. 2006; Kastelein et al. 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Seven marine mammal species (three cetacean and four phocid pinniped
species) have the reasonable potential to co-occur with the planned
construction activities. Please refer to Table 3. Of the cetacean
species that may be present, two are classified as a mid-frequency
cetacean (i.e., dolphins), and one is classified as a high-frequency
cetacean (i.e., harbor porpoise).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the Navy's activities have the
potential to result in behavioral harassment of marine mammals in the
vicinity of the project area. The proposed rule (86 FR 56857; October
13, 2021) included a discussion of the effects of anthropogenic noise
on marine mammals and the potential effects of underwater noise from
the Navy's construction activities on marine mammals and their habitat.
That information and analysis applies to this final rule and is not
repeated here; please refer to the proposed rule (86 FR 56857; October
13, 2021).
The Estimated Take section in this document includes a quantitative
analysis of the number of individuals that are expected to be taken by
this activity. The Negligible Impact Analysis and Determination section
considers the content of this section, the Estimated Take section, and
the Mitigation Measures section, to draw conclusions regarding the
likely impacts of these activities on the reproductive success or
survivorship of individuals and how those impacts on individuals are
likely to impact marine mammal species or stocks. We also provided
additional description of sound sources in our proposed rule (86 FR
56857; October 13, 2021).
Estimated Take
This section provides an estimate of the number of incidental takes
authorized, which will inform both NMFS' consideration of small numbers
and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level A and B harassment, in the form
of disruption of behavioral patterns and potential TTS and PTS for
individual marine mammals resulting from exposure to pile driving and
removal. As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and (4) the
number of days of activities. We note that while these factors can
contribute to a basic calculation to provide an initial prediction of
takes, additional information that can qualitatively inform take
estimates is also sometimes available (e.g., previous monitoring
results or average group size). Below, we describe the factors
considered here in more detail and present the take estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source (e.g., frequency, predictability, duty cycle), the environment
(e.g., bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al. 2007, Ellison et al. 2012). Based on what the
available science indicates and the practical need to use a threshold
based on a factor that is both predictable and measurable for most
activities, NMFS uses a generalized acoustic threshold based on
received level to estimate the onset of behavioral harassment. NMFS
predicts that marine mammals are likely to be behaviorally harassed in
a manner we consider Level B harassment when exposed to underwater
anthropogenic
[[Page 71167]]
noise above received levels of 120 dB re 1 [mu]Pa (rms) (reference
pressure microPascal, root mean square) for continuous (e.g., vibratory
pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources.
The Navy's construction includes the use of continuous (vibratory
pile driving) and impulsive (impact pile driving) sources, and
therefore the level of 120 and 160 dB re 1 [mu]Pa (rms) is applicable.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise. The
technical guidance identifies the received levels, or thresholds, above
which individual marine mammals are predicted to experience changes in
their hearing sensitivity for all underwater anthropogenic sound
sources, and reflects the best available science on the potential for
noise to affect auditory sensitivity. The technical guidance does this
by identifying threshholds in the follow manner:
[ssquf] Dividing sound sources into two groups (i.e., impulsive and
non-impulsive) based on their potential to affect hearing sensitivity;
[ssquf] Choosing metrics that best address the impacts of noise on
hearing sensitivity, i.e., sound pressure level (peak SPL) and sound
exposure level (SEL) (also accounting for duration of exposure); and
[ssquf] Dividing marine mammals into hearing groups and developing
auditory weighting functions based on the science supporting the fact
that not all marine mammals hear and use sound in the same manner.
These thresholds were developed by compiling and synthesizing the
best available science and are provided in Table 5 below. The
references, analysis, and methodology used in the development of the
thresholds are described in NMFS 2018 Technical Guidance, which may be
accessed at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection">https://www.fisheries.noaa.gov/national/marine-mammal-protection</a>.
The Navy's planned construction includes the use of impulsive
(impact pile driving) and non-impulsive (vibratory pile driving)
sources.
Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 217 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels transmission loss
coefficient.
Sound Propagation
Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:
TL = B * log<INF>10</INF>(R<INF>1</INF>/R<INF>2</INF>),
Where
B = transmission loss coefficient (assumed to be 15)
R<INF>1</INF> = the distance of the modeled SPL from the driven
pile, and
R<INF>2</INF> = the distance from the driven pile of the initial
measurement.
This formula neglects loss due to scattering and absorption, which
is assumed to be zero here. The degree to which underwater sound
propagates away from a sound source is dependent on a variety of
factors, most notably the water bathymetry and presence or absence of
reflective or absorptive conditions, including in-water structures and
sediments. Spherical spreading occurs in a perfectly unobstructed
(free-field) environment not limited by depth or water surface,
resulting in a 6 dB reduction in sound level for each doubling of
distance from the source (20*log(range)). Cylindrical spreading occurs
in an environment in which sound propagation is bounded by the water
surface and sea bottom, resulting in a reduction of 3 dB in sound level
for each doubling of distance from the source (10*log(range)). As is
common practice in coastal waters, here we assume practical spreading
(4.5 dB reduction in sound level for each doubling of distance).
Practical spreading is a compromise that is often used under conditions
where water depth increases as the receiver moves away from the
shoreline, resulting in an expected propagation environment that would
lie between spherical and cylindrical spreading loss conditions.
Practical spreading was used to determine sound propagation for this
project.
Sound Source Levels
The intensity of pile driving sounds is greatly influenced by
factors such as the type of piles, hammers, and the physical
environment in which the activity takes
[[Page 71168]]
place. There are sound source level (SSL) measurements available for
certain pile types and sizes from the similar environments from other
Navy pile driving projects that were evaluated and used as proxy sound
source levels to determine reasonable sound source levels likely to
result from the pile driving and removal activities (Table 6). Some of
the proxy source levels are expected to be conservative, as the values
are from larger pile sizes.
Table 6--Underwater Noise Sound Source Levels Modeled for Impact and Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
Sound pressure levels (SPL) or sound exposure
level (SEL) at 10 m distance
Pile size, type Method -----------------------------------------------
Peak SPL RMS SPL SEL
----------------------------------------------------------------------------------------------------------------
42-in Diameter Steel Pipe \1\......... Impact.................. 211 196 181
30-in Diameter Steel Pipe \2\......... Impact.................. 211 196 181
14-in Steel H-pile \3\................ Vibratory............... NA 158 158
31.5-in Z-shaped Steel Sheet \4\...... Impact.................. 211 196 181
31.5-in Z-shaped Steel Sheet \5\...... Vibratory............... NA 163 163
22.5-in Z-shaped Steel Sheet \3\...... Impact.................. 205 190 180
22.5-in Z-shaped Steel Sheet \5\...... Vibratory............... NA 163 163
----------------------------------------------------------------------------------------------------------------
Legend: All sound pressure levels (SPLs) are unattenuated; dB = decibels; rms = root mean square, SEL = sound
exposure level; NA = Not applicable; NR = Not reported.
Notes:
\1\ Navy pers comm. 2021.
\2\ Navy San Diego Bay Acoustic Compendium (NAVFAC SW 2020).
\3\ Caltrans 2015.
\4\ A proxy value for 31-in sheet piles could not be found for impact driving so the proxy for a 30-in steel
pipe pile has been used from NAVFAC SW (2020). This value was also used for Z-shaped steel sheets for the
Navy's Dry Dock 1 Modification and Expansion, Portsmouth Naval Shipyard, Kittery, Maine 2021 IHA (86 FR 14598;
March 17, 2021).
\5\ For vibratory driving of 31-in sheet piles and 22.5-in Z-shaped steel sheet piles, 163 dB SPL was used based
on measurements conducted by the Naval Facilities Engineering Command Mid-Atlantic (NAVFAC Mid-Atlantic) in
the Technical Memorandum Nearshore Marine Mammal Surveys, Portsmouth Naval Shipyard (2018).
For 42-in steel piles, a SSL of 181 dB SEL was used for impact
driving and is similar to SSL of 180 dB SEL for 36-in piles in CALTRANS
(2015). There are no SSL values for 42-in piles in CALTRANS, the
nearest values are for 36-in and 60-in steel pipe piles. For 30-in
steel pipe piles, an SSL of 181 dB SEL was used for impact pile driving
as a proxy from the Navy's San Diego Bay Acoustic Compendium (NAVFAC SW
2020) (the median value from the greatest sound levels recorded for 30-
in steel piles). The SSL used for 30-in steel piles during impact pile
driving is also more conservative than the SSL of 177 dB SEL for 30-in
steel piles in CALTRANS (2015). For 31.5-in sheet piles, an SSL of 181
dB SEL was used for impact pile driving as a proxy from 30-in steel
pipe piles (NAVFAC SW 2020), which is also slightly more conservative
than an SSL of 180 dB SEL for 24-in piles in CALTRANS (2015) (no larger
sheet piles are described in CALTRANS 2015). During vibratory pile
driving of 31.5-in sheet piles, the Navy used an SSL of 163 dB SPL,
which is also more conservative than an SSL of 160 dB SPL for 24-in
sheet piles in CALTRANS (2015) (no large sheet piles are described in
CALTRANS 2015). For 22.5-in Z-shaped steel sheet piles, an SSL of 180
dB SEL was used for impact pile driving and is also equivalent to 24-in
sheet piles in CALTRANS (2015). During vibratory pile driving, an SSL
of 163 dB SPL is a proxy from NAVFAC Mid-Atlantic (2018) and is also
more conservative than 24-in sheet piles in CALTRANS (2015) where the
SSL is 160 dB SPL for 24-in sheet piles (no larger sheet piles are
described in CALTRANS (2015). For 14-in steel H-piles, an SSL of 158 dB
SPL was used from CALTRANS (2015).
Level A Harassment
In conjunction with the NMFS Technical Guidance (2018), in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, NMFS developed a User Spreadsheet that includes
tools to help predict a simple isopleth that can be used in conjunction
with marine mammal density or occurrence to help predict takes. We note
that, because of some of the assumptions included in the methods used
for these tools, we anticipate that isopleths produced are typically
going to be overestimates of some degree, which may result in some
degree of overestimation of Level A harassment take. However, these
tools offer the best way to predict appropriate isopleths when more
sophisticated 3D modeling methods are not available, and NMFS continues
to develop ways to quantitatively refine these tools and will
qualitatively address the output where appropriate. For stationary
sources (such as from impact and vibratory pile driving), the NMFS User
Spreadsheet (2020) predicts the closest distance at which, if a marine
mammal remained at that distance the whole duration of the activity, it
would not incur PTS. Inputs used in the User Spreadsheet (Tables 7 and
8), and the resulting isopleths are reported below (Table 9).
Table 7--NMFS Technical Guidance (2020) User Spreadsheet Input To Calculate PTS Isopleths for Vibratory Pile
Driving
[User spreadsheet input--vibratory pile driving spreadsheet Tab A.1 vibratory pile driving used]
----------------------------------------------------------------------------------------------------------------
22.5-in Z- 31.5-in Z-
14-in steel H- shaped sheet shaped sheet
pile piles piles
----------------------------------------------------------------------------------------------------------------
Source Level (RMS SPL).......................................... 158 163 163
Weighting Factor Adjustment (kHz)............................... 2.5 2.5 2.5
Number of piles within 24-hr period............................. 12 10 8
[[Page 71169]]
Duration to drive a single pile (min)........................... 10 13 13
Propagation (xLogR)............................................. 15 15 15
Distance of source level measurement (m)........................ 10 10 10
----------------------------------------------------------------------------------------------------------------
Table 8--NMFS Technical Guidance (2020) User Spreadsheet Input to Calculate PTS Isopleths for Impact Pile
Driving
[User spreadsheet input--Impact pile driving spreadsheet Tab E.1 impact pile driving used]
----------------------------------------------------------------------------------------------------------------
22-in Z- 31.5-in Z-
shaped piles shaped piles 30-in pile 42-in pile
----------------------------------------------------------------------------------------------------------------
Source Level (Single Strike/shot SEL)........... 180 181 181 181
Weighting Factor Adjustment (kHz)............... 2 2 2 2
Number of strikes per pile...................... 530 530 530 530
Number of piles per day......................... 10 8 2 4
Propagation (xLogR)............................. 15 15 15 15
Distance of source level measurement (m)........ 10 10 10 10
----------------------------------------------------------------------------------------------------------------
Table 9--NMFS Technical Guidance (2020) User Spreadsheet Outputs To Calculate Level A Harassment PTS Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
User spreadsheet output PTS isopleths (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment
--------------------------------------------------------------------------------
Activity Sound source level at 10 m Low-frequency Mid-frequency High-frequency
cetaceans cetaceans cetaceans Phocid Otariid
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving/Removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-in H-pile............................. 158 SPL..................... 6.8 0.6 10.1 4.2 0.3
22.5-in Z-shaped sheet piles............. 163 SPL..................... 15.5 1.4 23.0 9.4 0.7
31.5-in Z-shaped sheet piles............. 163 SPL..................... 13.4 1.2 19.8 8.1 0.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
22.5-in Z-shaped sheet piles............. 180 SEL/190 SPL............. 1,915.4 68.1 2,281.5 1,025.0 74.6
31.5-in Z-shaped sheet piles............. 181 SEL/196 SPL............. 1,942.5 68.4 2,292.4 1,029.9 75.0
30-in pile............................... 181 SEL/196 SPL............. 763.7 27.2 909.7 408.7 29.8
42-in pile............................... 181 SEL/196 SPL............. 1,212 43.1 1,444.1 648.8 47.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level B Harassment
Utilizing the practical spreading model, NMFS determined underwater
noise will fall below the behavioral effects threshold of 120 dB rms
for marine mammals at the distances shown in Table 10 for vibratory
pile driving. With these radial distances, the largest Level B
harassment zone calculated was 7,356 m for sheet piles. However, this
distance would be truncated due to the presence of intersecting land
masses. For calculating the Level B harassment zone for impact driving,
the practical spreading loss model was used with a behavioral threshold
of 160 dB rms. The maximum radial distance of the Level B harassment
zone for impact piling equaled 2,512 m for 30-in piles, 42-in piles and
31.5-in sheet piles. Table 10 below provides all Level B harassment
radial distances (m) and ensonified areas (km\2\) during the Navy's
planned activities.
Table 10--Distances to Relevant Behavioral Isopleths and Ensonified Areas
----------------------------------------------------------------------------------------------------------------
Received level at 10 Level B harassment zone (m/
Year (section) Activity m km\2\) *
----------------------------------------------------------------------------------------------------------------
Vibratory Pile Driving
-----------------------------------------------------------------------------
[[Page 71170]]
Year 1 (S45)...................... 14-in H-piles........ 158 SPL............. 3,415 m/5.6 km\2\.
Year 2 (S366); Year 2 (Pier 1).... 14-in H-piles........ 158 SPL............. 3,415 m/5.8 km\2\.
Year 3 (LNG)...................... 14-in H-piles........ 158 SPL............. 3,415 m/5.8 km\2\.
Year 4 (S499/Pier 2).............. 14-in H-piles........ 158 SPL............. 3,415 m/5.7 km\2\.
Year 1 (S45)...................... 22.5-in Z-shaped 163 SPL............. 7,356 m/7.9 km\2\.
sheet piles.
Year 2 (S366); Year 2 (Pier 1).... 22.5-in Z-shaped 163 SPL............. 7,356 m/8.3 km\2\.
sheet piles.
Year 3 (LNG)...................... 22.5-in Z-shaped 163 SPL............. 7,356 m/7.5 km\2\.
sheet piles.
Year 4 (S499/Pier 2).............. 22.5-in Z-shaped 163 SPL............. 7,356 m/7.5 km\2\.
sheet piles.
Year 4 (S499/Pier 2).............. 31.5-in Z-shaped 163 SPL............. 7,356 m/9.5.km\2\.
sheet piles.
-----------------------------------------------------------------------------
Impact Pile Driving
-----------------------------------------------------------------------------
Year 1 (S45)...................... 22.5-in Z-shaped 180 SEL/190 SPL..... 1,000 m/1.1 km\2\.
sheet piles.
Year 2 (S366); Year 2 (Pier 1).... 22.5-in Z-shaped 180 SEL/190 SPL..... 1,000 m/1.3 km\2\.
sheet piles.
Year 3 (LNG)...................... 22.5-in Z-shaped 180 SEL/190 SPL..... 1,000 m/0.7 km\2\.
sheet piles.
Year 4 (S499/Pier 2).............. 31.5-in Z-shaped 181 SEL/196 SPL..... 2,512 m/3.8 km\2\.
sheet piles.
Year 1 (S45)...................... 30-in piles.......... 181 SEL/196 SPL..... 2,512 m/3.8 km\2\.
Year 2 (S366)..................... 30-in piles.......... 181 SEL/196 SPL..... 2,512 m/4.0 km\2\.
Year 4 (S499/Pier 2).............. 42-in piles.......... 181 SEL/196 SPL..... 2,512 m/3.8 km\2\.
----------------------------------------------------------------------------------------------------------------
* Note: Distances to the Level B harassment zone may vary slightly of the same pile size, due to the section of
work being conducted and how the produced sound would be directed (see Figures 6-1 through 6-4 of the Navy's
application).
Marine Mammal Occurrence and Take Calculation and Estimation
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. Potential exposures to impact pile and vibratory pile
driving noise for each acoustic threshold were estimated using marine
mammal density estimates (N) from the Navy Marine Species Density
Database NMSDD (Navy 2017) for which data of monthly densities of
species were evaluated in terms of minimum, maximum, and average annual
densities within Narragansett Bay and multiplied by the zone of
influence (ZOI) and the maximum days of pile driving (take estimate = N
x ZOI x days of pile driving). The pile type, size, and installation
method that produce the largest ZOI were used to estimate exposure of
marine mammals to noise impacts. We describe how the information
provided above is brought together to produce a quantitative take
estimate in the species sections below.
Atlantic White-Sided dolphins
Atlantic white-sided dolphins occur seasonally, occurring primarily
along the continental shelf with occasional unconfirmed opportunistic
sightings in Narragansett Bay in fall and winter. The most recent
observation of a pod of dolphins in Narragansett Bay was in October
2007 (NUWC Division, 2011). Construction activity could occur at any
time of year and would be short-term and intermittent. Therefore, the
average species density was determined to be appropriate for estimating
takes of Atlantic white-sided dolphin. Based on density data for
Narragansett Bay (Navy 2017), the average density of Atlantic white-
sided dolphin was determined to be 0.003/km\2\. This density was used
to estimate abundance of animals that could be present in the area for
exposure. Using this information, 1 take was calculated for Years 1, 3,
and 4 and 0 takes in Year 2 (Table 11). However, the annual take by
Level B harassment for Atlantic white-sided dolphins has been increased
to the average group size (16) (NAVSEA NUWC 2017) for Years 1, 3, and
4, because the calculated annual take is below the average group size.
Therefore, the Navy requested, and NMFS authorized, 16 takes annually
in Years 1, 3, and 4 (0 in Year 2) for a total of 48 takes by Level B
harassment of Atlantic white-sided dolphin (Table 11). No takes by
Level A harassment of Atlantic white-sided dolphin are anticipated to
occur or are authorized. Because this species' regular occurrence is in
much deeper waters than the extent of the ZOI (Hayes et al., 2019),
expected takes of this species are extremely low.
Table 11--Estimated Take for Atlantic White-Sided Dolphin
------------------------------------------------------------------------
Calculated Authorized
Construction year level B level B
harassment harassment
------------------------------------------------------------------------
Year 1 (S45).................................. 1 16
Year 2 (S366 and Pier 01)..................... 0 0
Year 3 (LNG).................................. 1 16
Year 4 (S499/Pier 2).......................... 1 16
-------------------------
Total....................................... 3 48
------------------------------------------------------------------------
Common Dolphin
Common dolphins are the most likely dolphin species to be spotted
in Narragansett Bay, and usually occur in late fall or winter (Kenney,
2013). The most recent sighting of a common dolphin recorded in
Narragansett Bay was in October of 2016 (Hayes et al., 2019).
Construction activity could occur at any time of year and would be
short-term and intermittent. Based on density data for Narragansett Bay
(NMSDD, Navy, 2017), the average density of common dolphin was
determined to be 0.011/km\2\. Using this information, 3 takes by Level
B harassment were calculated for Years 1 and 4, 2 takes for Year 2 and
6 takes for Year 3 (Table 12). Because the calculated annual take is
below the average group size, the annual take by Level B harassment for
common dolphin has been increased to the average group size (28)
(NAVSEA NUWC 2017). Therefore, the Navy requested, and NMFS authorized,
28 takes annually (with the exception of Year 2, for which it was
doubled to 56 takes as a conservative approach to account for more
vibratory and impact
[[Page 71171]]
pile driving activities that occur during that year in two sections
(S366 and Pier 1)) for a total of 140 takes by Level B harassment of
common dolphin (Table 12). No takes by Level A harassment of common
dolphin are anticipated to occur or are authorized. Because this
species' regular occurrence is in much deeper waters than the extent of
the ZOI (Hayes et al., 2019), takes of this species are expected to be
extremely low.
Table 12--Estimated Take for Common Dolphin
------------------------------------------------------------------------
Calculated Authorized
Construction year level B level B
harassment harassment
------------------------------------------------------------------------
Year 1 (S45).................................. 3 28
Year 2 (S366 and Pier 01)..................... 2 56
Year 3 (LNG).................................. 6 28
Year 4 (S499/Pier 2).......................... 3 28
-------------------------
Total....................................... 14 140
------------------------------------------------------------------------
Harbor Porpoise
Harbor porpoise are not common to Narragansett Bay but may occur,
especially in winter and spring months (Kinney 2013). Harbor porpoise
is the most stranded cetacean in Rhode Island, with a strong seasonal
occurrence in the spring. Construction activity could occur at any time
of year and would be short-term and intermittent. Therefore, the
average species density was determined to be appropriate for estimating
takes of harbor porpoise. Based on density data for Narragansett Bay
(NMSDD, Navy 2017), the average density of harbor porpoise was
determined to be 0.012/km\2\. Using this information, 4 takes by Level
B harassment were calculated for Years 1 and 4, 2 takes for Year 2, and
7 takes for Year 3 (Table 13). Because the calculated take in Year 2
was less than the group size, the annual take by Level B harassment for
harbor porpoise has been increased to the average group size (3) and
multiplied by two for 6 takes (NAVSEA NUWC 2017) as a conservative
approach to account for more vibratory and impact pile driving
activities that occur during that year in two sections (S366 and Pier
1)). Therefore, the Navy requested, and NMFS authorized, 4 takes in
Years 1 and 4, 6 takes in Year 2, and 7 takes in Year 3, and a total of
21 takes by Level B harassment of harbor porpoise (Table 13). Level A
harassment could occur during years 1, 3 and 4 (Table 13).
Table 13--Estimated Take for Harbor Porpoise
----------------------------------------------------------------------------------------------------------------
Authorized Calculated Authorized
Construction year level A level B level B
harassment harassment harassment
----------------------------------------------------------------------------------------------------------------
Year 1 (S45).................................................... 1 4 4
Year 2 (S366 and Pier 01)....................................... 0 2 6
Year 3 (LNG).................................................... 2 7 7
Year 4 (S499/Pier 2)............................................ 1 4 4
-----------------------------------------------
Total......................................................... 4 17 21
----------------------------------------------------------------------------------------------------------------
Harbor Seal
Harbor seals are the most common seal in Narragansett Bay, which is
a well-known winter feeding ground for the species (Moll et al., 2017).
Seals are commonly observed from late September through April (Moll et.
al., 2017; DeAngelis, 2020). Of the 22 known haulouts within
Narragansett Bay, The Sisters is the nearest haulout to the project
area (0.9 mi). Harbor seals are rarely observed at The Sisters haulout
in the early fall (September-October) but consistent numbers are
regularly observed in mid-November (0-10 animals). These numbers
gradually increase with peak numbers in the upper 40s occurring in
March, typically at low tide (DeAngelis, 2020). The NMSDD (Navy, 2017a)
models harbor and gray seals as a guild due to the difficulty in
distinguishing these species at sea. Harbor seal is expected to be the
most common pinniped in Narragansett Bay with year-round occurrence
(Kenney and Vigness-Raposa, 2010). Therefore, the maximum species
density for the harbor-gray seal guild was determined to be appropriate
for estimating takes of harbor seal. Based on density data for
Narragansett Bay (Navy, 2017a), the maximum density of seals was
determined to be 0.623/km\2\. This density value is for all seals
(harbor and gray seals as a guild); therefore, this density value
results in some degree of overestimation when applied to harbor seals
only. The Navy requested and NMFS authorized a high of 25 takes by
Level A harassment and 353 takes by Level B harassment during Year 3,
and a low of 13 takes by Level A harassment and 138 takes by Level B
harassment during Year 2 (Table 14).
Table 14--Estimated Take for Harbor Seal
------------------------------------------------------------------------
Authorized/
Authorized calculated
Construction year level A level B
harassment harassment
------------------------------------------------------------------------
Year 1 (S45).................................. 15 188
Year 2 (S366 and Pier 01)..................... 13 138
Year 3 (LNG).................................. 25 353
Year 4 (S499/Pier 2).......................... 25 221
-------------------------
Total..................................... 78 900
------------------------------------------------------------------------
Gray Seal
Based on stranding records, gray seals are seasonally present in
Rhode Island with the largest populations occurring from February
through June with a sharp peak in March and April. The NMSDD (Navy,
2017a) provides combined densities for harbor seal and gray seal (as
discussed above). Gray seals are the second most likely seal to be
observed in Rhode Island waters, next to harbor seals, and more of an
occasional visitor (Kenney, 2020); therefore, the average species
density for the harbor-gray seal guild was determined to be appropriate
for determining takes of gray seal. Based on density data for
Narragansett Bay (Navy, 2017a), the average density of seals was
determined to be 0.131/km\2\. This
[[Page 71172]]
density value is for all seals (harbor and gray seals as a guild);
therefore, it results in some degree of overestimation when applied to
gray seals only. Calculated takes by Level A harassment and Level B
harassment may occur each construction year with up to 5 takes by Level
A harassment and 74 takes by Level B harassment during Year 3. Fewer
annual takes were calculated for Year 2 and 3 by Level A harassment and
28 takes by Level B (Table 15). Because the calculated annual take is
below the average group size, the annual take by Level B harassment for
gray seal has been increased to the average group size (50 gray seals)
(NAVSEA NUWC 2017) and conservatively doubled for Year 1, 2, and 4,
during which years calculated takes were less than group size.
Therefore, the Navy requested, and NMFS authorized, 100 takes of gray
seals in Years 1, 2 and 4, and 74 takes in Year 3, and a total of 374
takes by Level B harassment of gray seals. A total of 17 takes of gray
seals by Level A harassment is also authorized.
Table 15--Estimated Take for Gray Seal
----------------------------------------------------------------------------------------------------------------
Authorized Calculated Authorized
Construction year level A level B level B
harassment harassment harassment
----------------------------------------------------------------------------------------------------------------
Year 1 (S45).................................................... 3 40 100
Year 2 (S366 and Pier 01)....................................... 3 28 100
Year 3 (LNG).................................................... 5 74 74
Year 4 (S499/Pier 2)............................................ 6 41 100
-----------------------------------------------
Total....................................................... 17 183 374
----------------------------------------------------------------------------------------------------------------
Harp Seal
Harp seals may be present in the project vicinity January through
May. In general, harp seals are much rarer than the harbor seal and
gray seal in Narragansett Bay and are rarely observed in the bay
(Kenney, 2015). Therefore, the minimum species density was determined
to be appropriate for determining takes of harp seal. Based on density
data for Narragansett Bay obtained from the NMSDD (Navy 2017), the
minimum density of harp seal was determined to be 0.050/km\2\. The Navy
requested and NMFS authorized that 2 takes by Level A harassment could
occur in Year 3, and 1 take by Level A harassment in Years 1, 2, and 4,
for a total of 5 takes (Table 16). Calculated takes by Level B
harassment range from 11 to 29 and total 72 takes over the project
(Table 16).
Table 16--Estimated Take for Harp Seal
------------------------------------------------------------------------
Authorized/
Authorized calculated
Construction year level A level B
harassment harassment
------------------------------------------------------------------------
Year 1 (S45).................................. 1 16
Year 2 (S366 and Pier 1)...................... 1 11
Year 3 (LNG).................................. 2 29
Year 4 (S499/Pier 2).......................... 2 18
-------------------------
Total....................................... 6 74
------------------------------------------------------------------------
Hooded Seal
Hooded seals may be present in the project vicinity from January
through May, although their exact seasonal densities are unknown. In
general, hooded seals are much rarer than the harbor seal and gray seal
in Narragansett Bay and are rarely observed in the Bay (Kenney, 2005).
Based on density data for Narragansett Bay obtained from the NMSDD, the
minimum density of hooded seal was determined to be 0.001/km\2\. Hooded
seals have the potential to occur but are considered the least likely
seal to be present in Narragansett Bay. No Level A (PTS onset) or Level
B (behavioral) takes are anticipated during any construction year.
However, in order to guard against unauthorized take, the Navy is
requesting, and NMFS authorized, 1 Level B (behavioral) take of hooded
seal per month of construction when this species may occur (Jan through
May) for each construction year for a total of 20 takes by Level B
harassment (Table 17). No take by Level A harassment is anticipated to
occur or is authorized.
Table 17--Estimated Take for Hooded Seal
------------------------------------------------------------------------
Authorized
Construction year Level B
harassment
------------------------------------------------------------------------
Year 1 (S45)............................................... 5
Year 2 (S366 and Pier 1)................................... 5
Year 3 (LNG)............................................... 5
Year 4 (S499/Pier 2)....................................... 5
------------
Total.................................................... 20
------------------------------------------------------------------------
Table 18 below summarizes the authorized take for all the species
described above as a percentage of stock abundance.
Table 18--Take Estimates as a Percentage of Stock Abundance
----------------------------------------------------------------------------------------------------------------
Stock (NEST) Level A Level B
Species harassment harassment Percent of stock
----------------------------------------------------------------------------------------------------------------
Atlantic White-sided Dolphin Western North 0 48 Less than 1 percent.
Atlantic
(93,233).
Common Dolphin.............. Western North 0 140 Less than 1 percent.
Atlantic
(172,974).
Harbor Porpoise............. Gulf of Maine/ 4 21 Less than 1 percent.
Bay of Fundy
(95,543).
Harbor Seal................. Western North 78 900 Less than 2 percent.
Atlantic
(61,336).
Gray Seal................... Western North 17 374 Less than 1 percent.
Atlantic
(451,600).
Harp Seal................... Western North 6 74 Less than 1 percent.
Atlantic (7.6
million).
Hooded Seal................. Western North 0 20 Less than 1 percent.
Atlantic
(593,500).
----------------------------------------------------------------------------------------------------------------
[[Page 71173]]
Mitigation
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the
permissible methods of taking pursuant to the activity, and other means
of effecting the least practicable adverse impact on the species or
stock and its habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and on the availability of
the species or stock for taking for certain subsistence uses (latter
not applicable for this action). NMFS regulations require applicants
for incidental take authorizations to include information about the
availability and feasibility (economic and technological) of equipment,
methods, and manner of conducting the activity or other means of
effecting the least practicable adverse impact upon the affected
species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
The following mitigation measures are planned for the Navy's in-
water construction activities.
General
The Navy will follow mitigation procedures as described below. In
general, if poor environmental conditions restrict full visibility of
the shutdown zone, pile driving activities would be delayed.
Training
The Navy will ensure that construction supervisors and crews, the
monitoring team, and relevant Navy staff are trained and prior to the
start of construction activity subject to this rule, so that
responsibilities, communication procedures, monitoring protocols, and
operational procedures are clearly understood. New personnel joining
during the project will be trained prior to commencing work.
Avoiding Direct Physical Interaction
The Navy will avoid direct physical interaction with marine mammals
during construction activity. If a marine mammal comes within 10 m of
such activity, operations will cease and vessels will reduce speed to
the minimum level required to maintain steerage and safe working
conditions, as necessary to avoid direct physical interaction.
Shutdown Zones
The Navy will establish shutdown zones for all pile driving
activities. The purpose of a shutdown zone is generally to define an
area within which shutdown of the activity would occur upon sighting of
a marine mammal (or in anticipation of an animal entering the defined
area). Shutdown zones will vary based on the activity type and marine
mammal hearing group (Table 19). For those activities with larger Level
A (PTS onset) harassment zones, the shutdown zone would be limited to
150 m from the point of noise generation to ensure adequate monitoring
for each bulkhead section and the remaining area would be considered
part of the ``disturbance zone.'' The disturbance zone is the Level B
harassment zone and, where present, the Level A harassment zone (PTS
onset) beyond 150 m from the point of noise generation (see Figures 6-1
through 6-4 of the Navy's application). For activities where the Level
A (PTS onset) harassment zones are smaller, the disturbance zone would
include the entire region of influence (ROI) and is the full extent of
potential underwater noise impact (Level A and Level B calculated
harassment zones). Work will be allowed to proceed without cessation
while marine mammals are in the disturbance zone and marine mammal
behavior within the disturbance zone will be monitored and documented.
Table 19--Pile Driving Shutdown Zone and Disturbance Zones During Project Activities
----------------------------------------------------------------------------------------------------------------
Shut down zone Shut down zone
Pile type Installation Pile diameter for cetaceans for pinnipeds Disturbance
method (in) (m) (m) zone (m)
----------------------------------------------------------------------------------------------------------------
Steel pipe.................... Impact.......... 30 150 150 2,500
Impact.......... 42 150 50 2,500
Steel H....................... Vibratory....... 14 10 10 ROI
Z-Shaped Steel Sheet.......... Vibratory....... 22.5 30 10 ROI
Impact.......... 22.5 150 150 2,500
Vibratory....... 31.5 20 10 ROI
Impact.......... 31.5 150 150 2,500
----------------------------------------------------------------------------------------------------------------
* ROI = region of influence and is the full extent of potential underwater noise impact (Level A and Level B
calculated harassment zones).
Soft Start
The Navy will use soft start techniques when impact pile driving.
Soft start requires contractors to provide an initial set of three
strikes from the hammer at reduced energy, followed by a 30-second
waiting period. Then two subsequent reduced-energy strike sets would
occur. A soft start will be implemented at the start of each day's
impact pile driving and at any time following cessation of impact pile
driving for a period of 30 minutes or longer. Soft start is not
required during vibratory pile driving activities.
Based on our evaluation of the applicant's planned measures, NMFS
has determined that the mitigation measures provide the means of
effecting the least practicable adverse impact on the affected species
or stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
[[Page 71174]]
Monitoring and Reporting
In order to issue an IHA for an activity, Section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
action area. Effective reporting is critical both to compliance as well
as for ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
[ssquf] Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
[ssquf] Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
[ssquf] Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
[ssquf] How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
[ssquf] Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
[ssquf] Mitigation and monitoring effectiveness.
The Navy will submit a Marine Mammal Monitoring Plan to NMFS for
approval in advance of the start of construction.
Monitoring Zones
The Navy will conduct monitoring to include the area within the
Level B harassment zones (areas where SPLs are equal to or exceed the
160 dB rms threshold for impact driving and the 120 dB rms threshold
during vibratory pile driving) (see Disturbance Zones in Table 19).
These disturbance zones provide utility for monitoring conducted for
mitigation purposes (i.e., shutdown zone monitoring) by establishing
monitoring protocols for areas adjacent to the shutdown zones.
Monitoring of the disturbance zones enables observers to be aware of
and communicate the presence of marine mammals in the project area, but
outside the shutdown zone, and thus prepare for potential shutdowns of
activity.
Visual Monitoring
Monitoring must take place from 30 minutes (min) prior to
initiation of pile driving activity (i.e., pre-start clearance
monitoring) through 30 min post-completion of pile driving activity. If
a marine mammal is observed entering or within the shutdown zones, pile
driving will be delayed or halted. If pile driving is delayed or halted
due to the presence of a marine mammal, the activity may not commence
or resume until either the animal has voluntarily exited and been
visually confirmed beyond the shutdown zone or 15 min have passed
without re-detection of the animal. Pile driving activity will be
halted upon observation of either a species for which incidental take
is not authorized or a species for which incidental take has been
authorized but the authorized number of takes has been met, entering or
within the disturbance zone.
PSO Monitoring Requirements and Locations
PSOs will be responsible for monitoring, the shutdown zones, the
disturbance zones and the pre-clearance zones, as well as effectively
documenting Level A and B harassment take. As described in more detail
in the Reporting section below, they will also (1) document the
frequency at which marine mammals are present in the project area, (2)
document behavior and group composition, (3) record all construction
activities, and (4) document observed reactions (changes in behavior or
movement) of marine mammals during each sighting. The PSOs will monitor
for marine mammals during all in-water pile activities associated with
the project. The Navy will monitor the project area to the extent
possible based on the required number of PSOs, required monitoring
locations, and environmental conditions. Visual monitoring will be
conducted by, at a minimum, by two PSOs. It is assumed that two to
three PSOs would be sufficient to monitor the respective ROIs given the
abundance of suitable vantage points. Any activity that would result in
threshold exceedance at or more than 1,000 m would require a minimum of
three PSOs to effectively monitor the entire ROI. However, additional
monitors may be added if warranted by site conditions and/or the level
of marine mammal activity in the area. Trained PSOs will be placed at
the best vantage point(s) practicable such as on nearby breakwaters,
Gould Island, Coddington Point, or Taylor Point (see Figure 11-1 of the
Navy's application) to monitor for marine mammals and implement
shutdown/delay procedures when applicable. The PSOs must record all
observations of marine mammals, regardless of distance from the pile
being driven.
In addition, PSOs will work in shifts lasting no longer than 4 hrs
with at least a 1-hr break between shifts and will not perform duties
as a PSO for more than 12 hrs in a 24[hyphen]hr period (to reduce PSO
fatigue).
Monitoring of pile driving will be conducted by qualified, NMFS-
approved PSOs. The Navy shall adhere to the following conditions when
selecting PSOs:
[ssquf] PSOs must be independent (i.e., not construction personnel)
and have no other assigned tasks during monitoring periods;
[ssquf] At least one PSO must have prior experience performing the
duties of a PSO during construction activities pursuant to a NMFS-
issued incidental take authorization;
[ssquf] Other PSOs may substitute other relevant experience,
education (degree in biological science or related field), or training;
[ssquf] Where a team of three PSOs are required, a lead observer or
monitoring coordinator shall be designated. The lead observer must have
prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization; and
[ssquf] PSOs must be approved by NMFS prior to beginning any
activity subject to this rule.
The Navy will ensure that the PSOs have the following additional
qualifications:
[ssquf] Visual acuity in both eyes (correction is permissible)
sufficient for discernment of moving targets at the water's surface
with ability to estimate target size and distance; use of binoculars
may be necessary to correctly identify the target;
[[Page 71175]]
[ssquf] Experience and ability to conduct field observations and
collect data according to assigned protocols;
[ssquf] Experience or training in the field identification of
marine mammals, including the identification of behaviors;
[ssquf] Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
[ssquf] Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and
[ssquf] Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
Acoustic Monitoring
The Navy will conduct a sound source verification (SSV) study for
all pile types and will follow accepted methodological standards to
achieve their objectives. The Navy will submit an acoustic monitoring
plan to NMFS for approval prior to the start of construction.
Reporting
The Navy will submit a draft report to NMFS within 90 workdays of
the completion of required monitoring for each portion of the project
as well as a comprehensive summary report at the end of the project.
The report will detail the monitoring protocol and summarize the data
recorded during monitoring. Final annual reports (each portion of the
project and comprehensive) must be prepared and submitted within 30
days following resolution of any NMFS comments on the draft report. If
no comments are received from NMFS within 30 days of receipt of the
draft report, the report shall be considered final. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments. All draft and final marine
mammal monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#c8989ae6819c98e685a7a6a1bca7baa1a6af9aadb8a7babcbb88a6a7a9a9e6afa7be"><span class="__cf_email__" data-cfemail="7222205c3b26225c3f1d1c1b061d001b1c152017021d000601321c1d13135c151d04">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#a3eaf7f38de6c4c4c6d1e3cdccc2c28dc4ccd5"><span class="__cf_email__" data-cfemail="135a47433d5674747661537d7c72723d747c65">[email protected]</span></a>. The reports
must contain the following informational elements, at minimum, (and be
included in the Marine Mammal Monitoring Plan), including:
[ssquf] Dates and times (begin and end) of all marine mammal
monitoring;
[ssquf] Construction activities occurring during each daily
observation period, including:
[cir] How many and what type of piles were driven and by what
method (e.g., impact or vibratory); and
[cir] Total duration of driving time for each pile (vibratory
driving) and number of strikes for each pile (impact driving);
[ssquf] PSO locations during marine mammal monitoring;
[ssquf] Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
[ssquf] Upon observation of a marine mammal, the following
information:
[cir] PSO who sighted the animal and PSO location and activity at
time of sighting;
[cir] Time of sighting;
[cir] Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
[cir] Distance and bearing of each marine mammal observed to the
pile being driven for each sighting (if pile driving was occurring at
time of sighting);
[cir] Estimated number of animals (minimum/maximum/best);
[cir] Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.;
[cir] Animal's closest point of approach and estimated time spent
within the harassment zone; and
[cir] Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses to the activity (e.g., no response
or changes in behavioral state such as ceasing feeding, changing
direction, flushing, or breaching);
[ssquf] Detailed information about implementation of any mitigation
(e.g., shutdowns and delays), a description of specific actions that
ensued, and resulting changes in behavior of the animal, if any; and
[ssquf] All PSO datasheets and/or raw sightings data.
Reporting of Injured or Dead Marine Mammals
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the Navy will report the
incident to NMFS Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#de8e8cf0978a8ef093b1b0b7aab1acb7b0b98cbbaeb1acaaad9eb0b1bfbff0b9b1a8"><span class="__cf_email__" data-cfemail="ecbcbec2a5b8bcc2a183828598839e85828bbe899c839e989fac82838d8dc28b839a">[email protected]</span></a>), NMFS (301-427-8401) and to the
Greater Atlantic Region New England/Mid-Atlantic Stranding Coordinator
(866-755-6622) as soon as feasible. If the death or injury was clearly
caused by the specified activity, the Navy must immediately cease the
specified activities until NMFS OPR is able to review the circumstances
of the incident and determine what, if any, additional measures are
appropriate to ensure compliance with the terms of this rule. The Navy
will not resume their activities until notified by NMFS. The report
must include the following information:
[ssquf] Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
[ssquf] Species identification (if known) or description of the
animal(s) involved;
[ssquf] Condition of the animal(s) (including carcass condition if
the animal is dead);
[ssquf] Observed behaviors of the animal(s), if alive;
[ssquf] If available, photographs or video footage of the
animal(s); and
[ssquf] General circumstances under which the animal was
discovered.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
taken through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are
[[Page 71176]]
incorporated into this analysis via their impacts on the environmental
baseline (e.g., as reflected in the regulatory status of the species,
population size and growth rate where known, ongoing sources of human-
caused mortality, or ambient noise levels).
To avoid repetition, this introductory discussion of our analyses
applies to all of the species listed in Table 3, given that many of the
anticipated effects of this project on different marine mammal stocks
are expected to be relatively similar in nature. Where there are
meaningful differences between species or stocks in anticipated
individual responses to activities, impacts of expected take on the
population due to differences in population status, or impacts on
habitat, they are described independently in the analysis below.
Pile driving activities associated with the project, as outlined
previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level A and Level B harassment from underwater sounds generated by
pile driving. Potential takes could occur if marine mammals are present
in zones ensonified above the thresholds for Level A and Level B
harassment, identified above, while activities are underway.
No serious injury or mortality would be expected even in the
absence of the planned mitigation measures. During all impact driving,
implementation of soft start procedures and monitoring of established
shutdown zones will be required, significantly reducing the possibility
of injury. Given sufficient notice through use of soft start (for
impact driving), marine mammals are expected to move away from an
irritating sound source prior to it becoming potentially injurious. In
addition, PSOs will be stationed within the action area whenever pile
driving activities are underway. Depending on the activity, the Navy
will employ the use of at least two and up to three PSOs to ensure all
monitoring and shutdown zones are properly observed. For Atlantic
white-sided dolphins, common dolphins and hooded seals, no Level A
harassment is anticipated. Atlantic white-sided dolphin and common
dolphin are both species in which regular occurrence is in much deeper
waters than the project area, and, given the small Level A harassment
zone sizes for mid-frequency cetaceans, we do not anticipate take by
Level A harassment. For hooded seals which are a rare species in
Narragansett Bay, with the absence of any major rookeries and only one
pinniped haulout (The Sisters) within the project area, we do not
anticipate any take by Level A harassment.
The Navy's planned pile driving activities and associated impacts
will occur within a limited portion of the confluence of the
Narraganset Bay area. Exposures to elevated sound levels produced
during pile driving activities may cause behavioral disturbance of some
individuals, but they are expected to be mild and temporary. However,
as described previously, the mitigation and monitoring measures are
expected to further reduce the likelihood of injury as well as reduce
behavioral disturbances.
Effects on individuals that are taken by Level B harassment, as
enumerated in the Estimated Take section, on the basis of reports in
the literature as well as monitoring from other similar activities,
will likely be limited to reactions such as increased swimming speeds,
increased surfacing time, or decreased foraging (if such activity were
occurring) (e.g., Thorson and Reyff 2006). Most likely, individual
animals will simply move away from the sound source and be temporarily
displaced from the areas of pile driving, although even this reaction
has been observed primarily only in association with impact pile
driving. The pile driving activities analyzed here are similar to, or
less impactful than, numerous other construction activities conducted
along both Atlantic and Pacific coasts, which have taken place with no
known long-term adverse consequences from behavioral harassment. These
reactions and behavioral changes are expected to subside quickly when
the exposures cease. Level B harassment will be minimized through use
of mitigation measures described herein, and, if sound produced by
project activities is sufficiently disturbing, animals are likely to
simply avoid the area while the activity is occurring, particularly as
the project is located on a waterfront with vessel traffic from both
Navy and non-Navy activities.
The project is also not expected to have significant adverse
effects on any marine mammal habitat. The project activities will not
modify existing marine mammal habitat since the project will occur
within the same footprint as existing marine infrastructure. Impacts to
the immediate substrate during installation and removal of piles are
anticipated, but these would be limited to minor, temporary suspension
of sediments, which could impact water quality and visibility for a
short amount of time but which would not be expected to have any
effects on individual marine mammals. The nearshore and intertidal
habitat where the project will occur is an area of consistent vessel
traffic from Navy and non-Navy vessels, and some local individuals
would likely be somewhat habituated to the level of activity in the
area, further reducing the likelihood of more severe impacts. The
closest pinniped haulout, The Sisters, is used by harbor seals and is
less than a mile from the project area; however, for the reasons
described immediately above (including the nature of expected responses
and the duration of the project), impacts to reproduction or survival
of individuals is not anticipated, much less effects on the species or
stock. There are no other biologically important areas for marine
mammals near the project area.
In addition, impacts to marine mammal prey species are expected to
be minor and temporary. Overall, the area impacted by the project is
very small compared to the available habitat in Narragansett Bay. The
most likely impact to prey will be temporary behavioral avoidance of
the immediate area. During pile driving activities, it is expected that
some fish and marine mammals would temporarily leave the area of
disturbance, thus impacting marine mammals' foraging opportunities in a
limited portion of the foraging range. But, because of the short
duration of the activities and the relatively small area of the habitat
that may be affected, the impacts to marine mammal habitat are not
expected to cause significant or long-term negative consequences.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
[ssquf] No mortality is anticipated or authorized;
[ssquf] No Level A harassment is anticipated or authorized for
Atlantic white-sided dolphins, Short-beaked common dolphins, and hooded
seals;
[ssquf] Anticipated incidents of Level B harassment consist of, at
worst, temporary modifications in behavior;
[ssquf] The required mitigation measures (i.e., shutdown zones) are
expected to be effective in reducing the effects of the specified
activity;
[ssquf] Minimal impacts to marine mammal habitat/prey are expected;
[ssquf] The action area is located within an active marine
waterfront area, and
[ssquf] There are no known biologically important areas in the
vicinity of the project, with the exception of one harbor seal haulout
(The Sisters)--however, as described above, exposure
[[Page 71177]]
to the work conducted in the vicinity of the haulout is not expected to
impact the reproduction or survival of any individual seals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat and, taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the planned
activity will have a negligible impact on all affected marine mammal
species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers, so, in practice, where estimated numbers are
available, NMFS compares the number of individuals taken to the most
appropriate estimation of abundance of the relevant species or stock in
our determination of whether an authorization is limited to small
numbers of marine mammals. When the predicted number of individuals to
be taken is fewer than one third of the species or stock abundance, the
take is considered to be of small numbers. Additionally, other
qualitative factors may be considered in the analysis, such as the
temporal or spatial scale of the activities.
Take of seven of the marine mammal stocks authorized will comprise
at most approximately 2 percent or less of the stock abundance (Table
18). The number of animals authorized to be taken from these stocks
would be considered small relative to the relevant stock's abundances
even if each estimated take occurred to a new individual, which is an
unlikely scenario. Based on the analysis contained herein of the
planned activity (including the mitigation and monitoring measures) and
the anticipated take of marine mammals, NMFS finds that small numbers
of marine mammals will be taken relative to the population size of the
affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Adaptive Management
The regulations governing the take of marine mammals incidental to
Navy construction activities would contain an adaptive management
component. The reporting requirements associated with this rule are
designed to provide NMFS with monitoring data from completed projects
to allow consideration of whether any changes are appropriate. The use
of adaptive management allows NMFS to consider new information from
different sources to determine (with input from the Navy regarding
practicability) on an annual or biennial basis if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or
subsequent LOAs.
Endangered Species Act
Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that
each Federal agency ensure that any action it authorizes, funds, or
carries out is not likely to jeopardize the continued existence of any
endangered or threatened species or result in the destruction or
adverse modification of designated critical habitat. To ensure ESA
compliance for the issuance of incidental take authorizations, NMFS
consults internally whenever we propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is authorized or expected
to result from this activity. Therefore, NMFS has determined that
formal consultation under section 7 of the ESA is not required for this
action.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., the promulgation of
regulations and subsequent issuance of incidental take authorization)
and alternatives with respect to potential impacts on the human
environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that this action qualifies to be categorically excluded from further
NEPA review.
Classification
Pursuant to the procedures established to implement Executive Order
12866, the Office of Management and Budget has determined that this
final rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this action will not
have a significant economic impact on a substantial number of small
entities. The Navy is the sole entity that would be subject to the
requirements in these regulations, and the Navy is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. No comments were received regarding this
certification. As a result, a regulatory flexibility analysis is not
required, and none has been prepared.
This final rule does not contain a collection-of-information
requirement subject to the provisions of the Paperwork Reduction Act
(PRA) because the applicant is a federal agency.
List of Subjects in 50 CFR Part 217
Administrative practice and procedure, Alaska, Endangered and
threatened species, Exports, Fish, Imports, Indians, Labeling, Marine
mammals, Oil and gas exploration, Penalties, Reporting and
recordkeeping requirements, Seafood, Transportation, Wildlife.
Dated: December 10, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For reasons set forth in the preamble, 50 CFR part 217 is amended
as follows:
[[Page 71178]]
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Effective from May 15, 2022, through May 14, 2027, add subpart R to
read as follows:
Subpart R--Taking and Importing Marine Mammals Incidental to U.S.
Navy Bulkhead Replacement/Repairs at Naval Station Newport in
Newport, Rhode Island
Sec.
217.70 Specified activity and geographical region.
217.71 Effective dates.
217.72 Permissible methods of taking.
217.73 Prohibitions.
217.74 Mitigation requirements.
217.75 Requirements for monitoring and reporting.
217.76 Letters of Authorization.
217.77 Renewals and modifications of Letters of Authorization.
217.78-217.79 [Reserved]
Subpart R--Taking and Importing Marine Mammals Incidental to U.S.
Navy Bulkhead Replacement/Repairs at Naval Station Newport in
Newport, Rhode Island
Sec. 217.70 Specified activity and geographical region.
(a) Regulations in this subpart apply only to the U.S. Navy (Navy)
and those persons it authorizes or funds to conduct activities on its
behalf for the taking of marine mammals that occurs in the areas
outlined in paragraph (b) of this section and that occurs incidental to
construction activities including for bulkhead replacement and repairs
at Naval Station (NAVSTA) Newport, Rhode Island.
(b) The taking of marine mammals by the Navy may be authorized in a
Letter of Authorization (LOA) only if it occurs at NAVSTA Newport,
Rhode Island.
Sec. 217.71 Effective dates.
Regulations in this subpart are effective from May 15, 2022,
through May 14, 2027.
Sec. 217.72 Permissible methods of taking.
Under an LOA issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.76, the Holder of the LOA (hereinafter ``Navy'') may
incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.70(b) by harassment associated with
bulkhead replacement and repairs construction activities, provided the
activity is in compliance with all terms, conditions, and requirements
of the regulations in this subpart and the applicable LOA.
Sec. 217.73 Prohibitions.
(a) Except for the takings contemplated in Sec. 217.72 and
authorized by a LOA issued under Sec. Sec. 216.106 of this chapter and
217.76, it is unlawful for any person to do any of the following in
connection with the activities described in Sec. 217.70:
(1) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under Sec. Sec. 216.106
of this chapter and 217.76;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(b) [Reserved]
Sec. 217.74 Mitigation requirements.
(a) When conducting the activities identified in Sec. 217.71(a),
the mitigation measures contained in any LOA issued under Sec. Sec.
216.106 of this chapter and 217.76 must be implemented. These
mitigation measures must include but are not limited to:
(1) A copy of any issued LOA must be in the possession of the Navy,
supervisory construction personnel, lead protected species observers
(PSOs), and any other relevant designees of the Holder operating under
the authority of this LOA at all times that activities subject to this
LOA are being conducted.
(2) The Navy will follow mitigation procedures as described in this
section. Should environmental conditions deteriorate such that marine
mammals within the entire shutdown zone would not be visible (e.g.,
fog, heavy rain, night), the Holder shall delay pile driving and
removal until observers are confident marine mammals within the
shutdown zone could be detected.
(3) The Navy will ensure that construction supervisors and crews,
the monitoring team, and relevant Navy staff are trained prior to the
start of all activities subject to this rule, so that responsibilities,
communication procedures, monitoring protocols, and operational
procedures are clearly understood. New personnel joining during the
project will be trained prior to commencing work.
(4) The Navy, construction supervisors and crews, PSOs, and
relevant Navy staff will avoid direct physical interaction with marine
mammals during construction activity. If a marine mammal comes within
10 m of such activity, operations will cease and vessels will reduce
speed to the minimum level required to maintain steerage and safe
working conditions, as necessary, to avoid direct physical interaction.
(5) The Navy will employ PSOs and establish monitoring locations as
described in this rule and the Marine Mammal Monitoring Plan. The Navy
will monitor the project area to the maximum extent possible based on
the required number of PSOs, required monitoring locations, and
environmental conditions.
(6) Monitoring will take place from 30 minutes prior to initiation
of pile driving activity (i.e., pre-start clearance monitoring) through
30 minutes post-completion of pile driving activity.
(7) If a marine mammal is observed entering or within the shutdown
zones indicated in this rule, pile driving activity must be delayed or
halted. If pile driving is delayed or halted due to the presence of a
marine mammal, the activity may not commence or resume until either the
animal has voluntarily exited and been visually confirmed beyond the
shutdown zone or 15 minutes have passed without re-detection of the
animal.
(8) The Navy will establish shutdown zones for all pile driving
activities. Shutdown zones are limited to 150 m from the point of noise
generation. Any remaining area within estimated Level A harassment
zones shall be considered part of the ``disturbance zone,'' i.e., the
Level B harassment zone and, where present, the Level A harassment zone
(PTS onset) beyond 150 m from the point of noise generation. For
activities where the estimated Level A (PTS onset) harassment zones are
smaller than 150 m, the disturbance zone shall include the entire
region of influence (ROI), i.e., estimated Level A and Level B
harassment zones). Work may proceed without cessation while marine
mammals are in the disturbance zone and marine mammal behavior within
the disturbance zone will be monitored and documented.
(9) The Navy will conduct monitoring to include the area within the
Level B harassment zones (areas where SPLs are equal to or exceed the
160 dB rms threshold for impact driving and the 120 dB rms threshold
during vibratory pile driving (disturbance zone).
(10) Pre-start clearance monitoring will be conducted during
periods of visibility sufficient for the lead PSO to determine that the
shutdown zones are clear of marine mammals. Pile driving
[[Page 71179]]
may commence following 30 minutes of observation when the determination
is made that the shutdown zones are clear of marine mammals.
(11) If pile driving is delayed or halted due to the presence of a
marine mammal, the activity may not commence or resume until either the
animal has voluntarily exited and been visually confirmed beyond the
shutdown zone indicated or 15 minutes have passed without re-detection
of the animal.
(12) The Navy will use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
three strikes from the hammer at reduced energy, followed by a 30-
second waiting period. Then two subsequent reduced-energy strike sets
would occur. A soft start will be implemented at the start of each
day's impact pile driving and at any time following cessation of impact
pile driving for a period of 30 minutes or longer. Soft start is not
required during vibratory pile driving activities.
(13) Pile driving activity must be halted upon observation of
either a species entering or within the harassment zone, for which
incidental take is not authorized, or a species for which incidental
take has been authorized but the authorized number of takes has been
met.
(b) [Reserved]
Sec. 217.75 Requirements for monitoring and reporting.
(a) Marine Mammal monitoring must be conducted in accordance with
the conditions in this section and the Marine Mammal Monitoring Plan.
The Navy must submit a Marine Mammal Monitoring Plan to NMFS for
approval in advance of construction.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs,
in accordance with the following conditions:
(1) PSOs must be independent (i.e., not construction personnel) and
have no other assigned tasks during monitoring periods.
(2) At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization.
(3) Other PSOs may substitute other relevant experience, education
(degree in biological science or related field), or training for prior
experience performing the duties of a PSO during construction activity
pursuant to a NMFS-issued incidental take authorization.
(4) Where a team of three or more PSOs is required, a lead observer
or monitoring coordinator must be designated. The lead observer must
have prior experience performing the duties of a PSO during
construction activity pursuant to a NMFS-issued incidental take
authorization.
(5) PSOs must be approved by NMFS prior to beginning any activity
subject to this LOA.
(c) The Navy will establish the following monitoring locations. For
all pile driving activities, a minimum of one PSO will be assigned to
each active pile driving location to monitor the shutdown zones.
Trained PSOs will be placed at the best vantage point(s) practicable
such as on nearby breakwaters, Gould Island, Coddington Point, or
Taylor Point. Visual monitoring will be conducted by, at a minimum, by
two PSOs. It is assumed that two to three PSOs would be sufficient to
monitor the respective ROIs given the abundance of suitable vantage
points. Any activity that would result in threshold exceedance at or
more than 1,000 m would require a minimum of three PSOs to effectively
monitor the entire ROI. However, additional monitors may be added if
warranted by site conditions and/or the level of marine mammal activity
in the area.
(d) PSOs must record all observations of marine mammals, regardless
of distance from the pile being driven, as well as the additional data
indicated in the reporting requirements.
(e) Acoustic monitoring will be conducted in accordance with the
Acoustic Monitoring Plan. The Navy will conduct hydroacoustic data
collection (sound source verification and propagation loss) in
accordance with a hydroacoustic monitoring plan that must be approved
by NMFS in advance of construction.
(f) The shutdown/disturbances zones may be modified with NMFS'
approval following NMFS' acceptance of an acoustic monitoring report.
(g) The Navy will submit a draft monitoring report to NMFS within
90 calendar days of the completion of required monitoring for each
portion of the project as well as a comprehensive summary report at the
end of the project. The report will detail the monitoring protocol and
summarize the data recorded during monitoring. Final annual reports
(each portion of the project and comprehensive) must be prepared and
submitted within 30 days following resolution of any NMFS comments on
the draft report. If no comments are received from NMFS within 30 days
of receipt of the draft report, the report must be considered final. If
comments are received, a final report addressing NMFS comments must be
submitted within 30 days after receipt of comments.
(h) All draft and final monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#bdedef93f4e9ed93f0d2d3d4c9d2cfd4d3daefd8cdd2cfc9cefdd3d2dcdc93dad2cb"><span class="__cf_email__" data-cfemail="d58587fb9c8185fb98babbbca1baa7bcbbb287b0a5baa7a1a695bbbab4b4fbb2baa3">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#662f3236482301010314260809070748010910"><span class="__cf_email__" data-cfemail="4f061b1f610a28282a3d0f21202e2e61282039">[email protected]</span></a>.
(i) The marine mammal report must contain the informational
elements described ed in the Marine Mammal Monitoring Plan and, at
minimum, include:
(1) Dates and times (begin and end) of all marine mammal
monitoring;
(2) Construction activities occurring during each daily observation
period, including: the number and types of piles were driven or removed
and by what method (i.e., impact or vibratory) and the total duration
of driving time for each pile (vibratory driving) and number of strikes
for each pile (impact driving); and
(3) PSO locations during marine mammal monitoring;
(4) Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
(5) Upon observation of a marine mammal, the following information:
(i) Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting.
(ii) Time of sighting; and
(iii) Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
(iv) Distances and location of each marine mammal observed relative
to the pile being driven or removed;
(v) Estimated number of animals (min/max/best);
(vi) Estimated number of animals by cohort (adults, juveniles,
neonates, group composition etc.);
(vii) Animal's closest point of approach and estimated time spent
within the harassment zone; and
(viii) Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
(6) Number of marine mammals detected within the harassment zones,
by species;
(7) Detailed information about any implementation of any mitigation
[[Page 71180]]
triggered (e.g., shutdowns and delays), a description of specific
actions that ensued, and resulting of the behavior of the animal, if
any;
(8) The Navy will submit all PSO datasheets and/or raw sightings
data with the draft reports.
(j) The Navy must report the hydroacoustic data collected as
required by a LOA issued under Sec. Sec. 216.106 of this chapter and
217.76 and as described in the Acoustic Monitoring Plan, and at a
minimum, must include:
(1) Hydrophone equipment and methods: recording device, sampling
rate, distance (m) from the pile where recordings were made; depth of
water and recording device(s);
(2) Type and size of pile being driven, substrate type, method of
driving during recordings (e.g., hammer model and energy), and total
pile driving duration;
(i) Whether a sound attenuation device is used and, if so, a
detailed description of the device used and the duration of its use per
pile;
(ii) For impact pile driving (per pile): Number of strikes and
strike rate; depth of substrate to penetrate; pulse duration and mean,
median, and maximum sound levels (dB re: 1 [micro]Pa): Root mean square
sound pressure level (SPLrms); cumulative sound exposure level
(SELcum), peak sound pressure level (SPLpeak), and single-strike sound
exposure level (SELs-s);
(iii) For vibratory driving/removal (per pile): Duration of driving
per pile; mean, median, and maximum sound levels (dB re: 1 [micro]Pa):
Root mean square sound pressure level (SPLrms), cumulative sound
exposure level (SELcum) (and timeframe over which the sound is
averaged); and
(iv) One-third octave band spectrum and power spectral density
plot.
(k) In the event that personnel involved in the construction
activities discover an injured or dead marine mammal, the Navy must
report the incident to NMFS Office of Protected Resources (OPR), NMFS
(<a href="/cdn-cgi/l/email-protection#f0a0a2deb9a4a0debd9f9e99849f82999e97a295809f828483b09e9f9191de979f86"><span class="__cf_email__" data-cfemail="2575770b6c71750b684a4b4c514a574c4b427740554a575156654b4a44440b424a53">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#92dbc6c2bcd7f5f5f7e0d2fcfdf3f3bcf5fde4"><span class="__cf_email__" data-cfemail="2b627f7b056e4c4c4e596b45444a4a054c445d">[email protected]</span></a>) Monitoring)
and to the Greater Atlantic Region New England/Mid-Atlantic Stranding
Coordinator, as soon as feasible. If the death or injury was clearly
caused by the specified activity, the Navy must immediately cease the
specified activities until NMFS OPR is able to review the circumstances
of the incident and determine what, if any, additional measures are
appropriate to ensure compliance with the terms of this rule and the
LOA issued under Sec. Sec. 216.106 of this chapter and 217.76. The
Navy will not resume their activities until notified by NMFS. The
report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the
animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the
animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s);
and
(6) General circumstances under which the animal was discovered.
Sec. 217.76 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Navy must
apply for and obtain a modification of the LOA as described in Sec.
217.77.
(e) The LOA will set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA will be published in the
Federal Register within 30 days of a determination.
Sec. 217.77 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.76 for the activity identified in Sec. 217.70(a) may be renewed or
modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting that do not change the findings made for the regulations or
result in no more than a minor change in the total estimated number of
takes (or distribution by species or years), NMFS may publish a notice
of proposed LOA in the Federal Register, including the associated
analysis of the change, and solicit public comment before issuing the
LOA.
(c) A LOA issued under Sec. Sec. 216.106 of this chapter and
217.76 for the activity identified in Sec. 217.70(a) may be modified
by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with Navy regarding
the practicability of the modifications) if doing so creates a
reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring set forth in the preamble for these
regulations;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
will publish a notice of proposed LOA in the Federal Register and
solicit public comment;
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in a LOA issued pursuant to Sec. Sec. 216.106 of
this chapter and 217.76, a LOA may be modified without prior notice or
opportunity for public comment. Notification would be published in the
Federal Register within 30 days of the action.
Sec. Sec. 217.78-217.79 [Reserved]
[FR Doc. 2021-27133 Filed 12-14-21; 8:45 am]
BILLING CODE 3510-22-P
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