[Federal Register Volume 86, Number 86 (Thursday, May 6, 2021)]
[Rules and Regulations]
[Pages 24340-24359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09512]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

[Docket No. 210421-0084]
RIN 0648-BJ90


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to U.S. Navy Construction at Naval 
Station Norfolk in Norfolk, Virginia

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
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 including marine structure 
maintenance, pile replacement, and select waterfront improvements at 
Naval Station Norfolk (NAVSTA Norfolk) over the course of five years 
(2021-2026). 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 June 7, 2021 to June 7, 2026.

ADDRESSES: A copy of the Navy's application and supporting documents, 
as well as a list of the references cited in this document, may be 
obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-norfolk-norfolk-virginia. In case of problems accessing these documents, please call 
the contact listed below.

FOR FURTHER INFORMATION CONTACT: Leah Davis, 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 
MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take by 
Level B harassment of marine mammals 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 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

[[Page 24341]]

effecting the ``least practicable adverse impact'' on the affected 
species or stocks and their habitat (see the discussion below in the 
Mitigation Measures 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 I provide the legal basis for 
issuing this final rule containing five-year regulations, and for any 
subsequent LOAs. As directed by this legal authority, this final rule 
contains mitigation, monitoring, and reporting requirements.

Summary of Major Provisions Within the Final Rule

    Following is a summary of the major provisions of this final rule 
regarding Navy construction activities. These measures include:
     Required monitoring of the construction areas to detect 
the presence of marine mammals before beginning construction 
activities;
     Shutdown of construction activities under certain 
circumstances to avoid injury of marine mammals; and
     Soft start for impact pile driving to allow marine mammals 
the opportunity to leave the area prior to beginning impact pile 
driving at full power.

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made, regulations are issued, and notice is 
provided to the public.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to as ``mitigation''); 
and requirements pertaining to the mitigation, monitoring and reporting 
of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    In February 2020, NMFS received a request from the Navy for an LOA 
to take marine mammals incidental to construction activities including 
marine structure maintenance, pile replacement, and select waterfront 
improvements at NAVSTA Norfolk. NMFS reviewed the Navy's application, 
and the Navy provided an updated version addressing NMFS' questions and 
comments on May 22, 2020. The application was deemed adequate and 
complete and published for public review and comment on June 9, 2020 
(85 FR 35267). We did not receive substantive comments on the notice of 
the receipt of the Navy's application. We subsequently published a 
proposed rule in the Federal Register on December 21, 2020 (85 FR 
83001). 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 plans to conduct construction activities at NAVSTA Norfolk 
and nearby facilities off the lower Chesapeake Bay. Among other 
activities, the planned project will include both vibratory pile 
driving and removal, and impact pile driving. The use of both vibratory 
and impact pile driving is expected to produce underwater sound at 
levels that have the potential to result in harassment of marine 
mammals. The Navy requested authorization to take a small number of 
five species of marine mammals by Level B harassment only. Neither the 
Navy nor NMFS expect serious injury or mortality to result from this 
activity. The regulations are valid for five years (2021-2026).

Description of the Specified Activity

    The Navy is proposing to conduct construction activities at NAVSTA 
Norfolk on the Naval Station, and at nearby facilities off the lower 
Chesapeake Bay. The Navy's planned activities include pile replacement 
at the Morale, Welfare and Recreation Marina, and installation of two 
new floating docks at the V-area. Both areas are located on the Naval 
Station. The Navy also proposes to conduct maintenance/repair 
activities at the Naval Station and neighboring Defense Fuel Supply 
Point Craney Island and Lambert's Point Deperming Station (see Figure 1 
of the proposed rule; 85 FR 83001; December 21, 2020). The Navy has 
indicated specific projects where existing needs have been identified, 
as well as estimates for expected emergent or emergency repairs. The 
planned project will include both vibratory pile driving and removal, 
and impact pile driving (hereafter, collectively referred to as ``pile 
driving'') over approximately 574 days over five years (2021-2026), 
with the greatest amount of work occurring during Year 1 (approximately 
208 days). The Navy plans to conduct all work during daylight hours.
    A detailed description of the planned construction project is 
provided in the proposed rule (85 FR 83001; December 21, 2020). Since 
that time, no changes have been made to the planned activities. 
Therefore, a detailed description is not provided here. Please refer to 
the proposed rule for the description of the specific activity.

Comments and Responses

    We published a proposed rule in the Federal Register on December 
21, 2020 (85 FR 83001). During the 30-day comment period, we received a 
letter from the Marine Mammal Commission (Commission), and a comment 
from the general public. Summaries of all substantive comments, and our 
responses to these comments, are provided here. Please see the comment 
letter, available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-norfolk-norfolk-virginia, for full detail regarding the comments 
received.
    Comment 1: The Commission recommended that NMFS re-estimate the 
numbers of Level B harassment takes of harbor seals based on up to 21 
rather than 14 seals potentially being taken on the various days of 
proposed activities.
    Response: In the proposed rule, NMFS calculated takes based on 
haulout data from the CBBT (14 Level B harassment takes per day. See 
the Estimated Take section of the proposed rule; 85 FR 83001; December 
21, 2020). The CBBT is approximately 19 km (kilometers; 12 miles (mi)) 
from the project site, and the ES haulout is approximately 48 km (30 
mi) from the project site. While some seals tagged at ES haulouts 
entered the Chesapeake Bay (Ampela et al. 2019), even if a seal enters 
the Chesapeake Bay, it does not necessarily enter the project area. The 
Level B harassment zones are <50 m for all impact pile driving, and 
given the shoreline, Level B harassment zones during vibratory pile 
driving would be truncated in many directions. Additionally, some seals 
move between the CBBT and ES haulout sites (Jones et al. 2018); 
therefore, including seals from

[[Page 24342]]

both haulouts could result in double counting of the same animals. 
Further, the nearby HRBT project began pile installation in September, 
and no seals have been sighted during five months of construction under 
the project's Marine Mammal Monitoring and Mitigation Program. 
Therefore, the best available information indicates that the take 
estimate included in the proposed rule is already conservative, and it 
is not appropriate to increase the take estimate as suggested by the 
Commission. Therefore, NMFS does not concur with the Commission's 
recommendation and does not adopt it.
    Comment 2: The Commission recommended that NMFS require the Navy to 
(1) conduct sound source and sound propagation measurements of 
vibratory and impact installation of at least 10 high-density 
polyethylene (HDPE), 10 hollow-core fiberglass, and 3 concrete piles 
using near-field and far-field hydrophones placed mid-water column and 
(2) include certain specific elements in its hydroacoustic monitoring 
report.
    The Commission also recommended that NMFS require the Navy to 
increase the sizes of the shut-down zones and Level B harassment zones 
if the measured data indicate that the model-estimated zones were 
underestimated.
    Response: Since publication of the proposed rule, the Navy has 
determined that sound source verification (SSV) may not be feasible 
given budget constraints associated with the individual, small-scale 
projects planned. Therefore, NMFS did not adopt the Commission's 
recommendation to require sound source and sound propagation 
measurements for the number of piles it indicated, and NMFS has removed 
the SSV requirement from this final rule. However, subject to funding 
availability, the Navy may conduct a SSV study for pile types other 
than timber piles (prioritizing composite pile types). As noted in the 
proposed rule, composite piles may be either HDPE or hollow-core 
fiberglass; the Navy will not necessarily install both types.
    If funding is available for a SSV study, the Navy will develop an 
acoustic monitoring plan. The acoustic monitoring plan would follow 
accepted methodologies regarding source level measurements and 
propagation measurements. NMFS generally agrees with the elements that 
the Commission has suggested that the Navy report, though the exact 
reporting requirements would be outlined in an acoustic monitoring 
plan, which would be available at a later date, and would be reviewed 
and approved by NMFS prior to implementation.
    If the Navy conducts hydroacoustic monitoring, and the results 
suggest that the Level A or Level B harassment zones were 
underestimated in this final rule, NMFS will work with the Navy to 
update the Level A and Level B harassment zone sizes and the associated 
shutdown zones, as appropriate.
    Comment 3: The Commission recommends generally that NMFS require 
the use of shutdown zones that encompass the extent of the associated 
Level A harassment zone. Specifically, the Commission recommends that 
NMFS require the Navy to implement a shutdown zone of 55 m rather than 
50 m for low-frequency (LF) cetaceans during impact installation of 24-
inch (in) concrete piles.
    Response: NMFS does not agree with the Commission's rationale for 
this recommendation. Generally speaking, given the duration component 
associated with actual occurrence of Level A harassment take, it is not 
necessary to require a shutdown zone equivalent to the estimated Level 
A harassment zone to avoid permanent threshold shift (PTS), i.e., Level 
A harassment take. Regardless, in this case, the proposed 50 m shutdown 
zone is essentially equivalent to the estimated 52 m Level A harassment 
zone. Nevertheless, the Navy has agreed to implement the 55 m shutdown 
zone recommended by the Commission.
    Comment 4: The Commission recommended that NMFS require the Navy to 
use at least three PSOs to monitor for marine mammals during vibratory 
pile installation and removal at Pier 3, Pier 12, and Craney Island and 
four PSOs for Lambert's Point positioned sufficiently in the far field 
to monitor the largest extents of the respective Level B harassment 
zones.
    Response: NMFS concurs with the Commission's recommendation and has 
adopted it. This final rule requires the Navy to employ at least three 
PSOs during vibratory pile driving at Pier 3, Pier 12, and Craney 
Island, and at least four PSOs during vibratory pile driving at 
Lambert's Point, though the exact locations are not stipulated. For all 
other pile driving activities, a minimum of two PSOs will be used, as 
stated in the proposed rule (85 FR 83001; December 21, 2020).
    Comment 5: The Commission recommended that NMFS make available to 
the public for review and comment all monitoring plans, hydroacoustic 
and marine mammal-related, contemporaneously with any proposed rule or 
proposed incidental harassment authorization that NMFS publishes in the 
Federal Register.
    Response: NMFS agrees that it is important to ensure adequate 
review of monitoring plans, including hydroacoustic and marine mammal-
related monitoring plans, before they are implemented by applicants. 
NMFS will review the Navy's proposed marine mammal monitoring plan 
prior to the start of construction, and therefore prior to the 
implementation of the plan. If funding is available for a SSV study, 
the Navy will develop an acoustic monitoring plan, and NMFS will review 
and approve the plan prior to its implementation. It is important to 
provide the objectives of proposed monitoring for review by the public. 
However, as is the case here, methodological details follow widely 
accepted practices and, therefore, it is unnecessary to provide these 
plans for public review. To do so would necessitate development of 
standalone plans at an earlier stage than is ideal or, in some cases, 
possible.
    While the Navy initially expected to submit a standalone marine 
mammal monitoring and mitigation plan in association with the 
application, it has since indicated that it is unable to do so given 
restrictions on funding allocation between NEPA and associated 
analyses/consultations such as this MMPA authorization and separate 
construction project funding. The construction project funding must be 
used for further development of site/project-specific monitoring plans 
at a later stage of project development. All monitoring requirements in 
the Navy's LOA application, this final rule, and any subsequent LOA(s) 
will be incorporated into the construction contractor's monitoring 
plan.
    Comment 6: The Commission recommended that NMFS include the 
requirement, which it deems standard, that the Navy conduct pile 
driving and removal activities during daylight hours only either in 
section 218.5 of the final rule or in any LOA issued under the final 
rule.
    Response: We do not concur with the Commission's recommendations, 
or with their underlying justification, and did not adopt them. While 
the Navy has no intention of conducting pile driving activities at 
night, it is unnecessary to preclude such activity should the need 
arise (e.g., on an emergency basis or to complete driving of a pile 
begun during daylight hours, should the construction operator deem it 
necessary to do so). Further, while acknowledging that prescribed 
mitigation measures for any specific action (and an associated 
determination that the prescribed

[[Page 24343]]

measures are sufficient to achieve the least practicable adverse impact 
on the affected species or stocks and their habitat) are subject to 
review by the Commission and the public, any determination of what 
measures constitute ``standard'' mitigation requirements is NMFS' alone 
to make. Even in the context of measures that NMFS considers to be 
``standard'' we reserve the flexibility to deviate from such measures, 
depending on the circumstances of the action. We disagree with the 
statement that a prohibition on pile driving activity outside of 
daylight hours would help to ensure that the Navy is effecting the 
least practicable adverse impact on the affected species, and the 
Commission does not justify this assertion.
    The final rule includes a measure stating that ``should 
environmental conditions deteriorate such that marine mammals within 
the entire shutdown zone would not be visible (e.g., fog, heavy rain, 
night), pile driving and removal must be delayed until observers are 
confident marine mammals within the shutdown zone could be detected,'' 
though this need not preclude pile driving at night with sufficient 
illumination.
    Comment 7: The Commission recommends that NMFS revise section 
218.6(g)(9) in the final rule to require the Navy to report the number 
of individuals of each species detected within the Level A and B 
harassment zones, and estimates of the number of marine mammals taken 
by Level A and B harassment, by species.
    In a related comment, the Commission recommended that, for the 
final rule, NMFS include requirements in section 218.6(g) that the Navy 
include in its monitoring report (1) the estimated percentages of the 
Level B harassment zones that were not visible, (2) an extrapolation of 
the estimated takes by Level B harassment based on the number of 
observed exposures within the Level B harassment zones and the 
percentages of the Level B harassment zones that were not visible 
(i.e., extrapolated takes), and (3) the total number of Level B 
harassment takes based on both the observed and extrapolated takes for 
each species.
    Response: We do not fully concur with the Commission's 
recommendation and do not adopt it as stated. NMFS agrees with the 
recommendation to require the Navy to report the number of individuals 
of each species detected within the Level A and Level B harassment 
zones. Section 218.6(g)(9) in the proposed rule stated that the Navy 
must report the ``number of marine mammals detected within the 
harassment zones, by species,'' which is effectively the same measure 
as the Commission's recommended ``number of individuals of each species 
detected within the Level A and B harassment zones.'' Therefore, NMFS 
did not modify that measure. NMFS does not agree with the 
recommendation to require the Navy to report estimates of the numbers 
of marine mammals taken by Level A and Level B harassment. The 
Commission does not explain why it believes this requirement is 
necessary, nor does it provide recommendations for methods of 
generating such estimates in a manner that would lead to credible 
results. NMFS does not agree that the basic method described in 
footnote 22 of the Commission's November 19, 2020 letter should be 
expected to yield estimates of total take such that readers of the 
Navy's report should have confidence that the estimates are reasonable 
representations of what may have actually occurred.
    NMFS does agree that the Navy should report the estimated 
percentage(s) of the Level B harassment zones that were not visible, 
and has included this requirement in this final rule (See section 
218.6(g)(12)). These pieces of information--numbers of individuals of 
each species detected within the harassment zones and the estimated 
percentage(s) of the harassment zones that were not visible--may be 
used to glean an approximate understanding of whether the Navy may have 
exceeded the amount of take authorized. Although the Commission does 
not explain its reasoning for offering these recommendations, NMFS 
recognizes the basic need to understand whether an IHA-holder may have 
exceeded its authorized take. The need to accomplish this basic 
function of reporting does not require that NMFS require applicants to 
use methods we do not have confidence in to generate estimates of 
``total take'' that cannot be considered reliable.
    Comment 8: The Commission recommended that NMFS reinforce that the 
Navy must keep a running tally of the total Level B harassment takes, 
both observed and extrapolated, for each species consistent with 
section 218.5(a)(10) of the final rule.
    Response: The LOA will indicate the number of takes authorized for 
each species. We agree that the Navy must ensure they do not exceed 
authorized takes, but do not concur with the Commission's repeated 
recommendations regarding the need for NMFS to dictate how an applicant 
does so, including by requiring an applicant to maintain a ``running 
tally'' of takes. Regardless of the Commission's substitution of the 
word ``reinforce'' for the word ``ensure,'' as compared with its prior 
recommendations for other actions, compliance with the terms of an 
issued LOA remains the responsibility of the LOA-holder.

Changes From Proposed to Final Regulations

    As noted by the Commission in its informal comments on the proposed 
rule, Table 13 in the proposed rule mistakenly indicated an estimate of 
20 Level B harassment takes of harbor porpoise over the five-year 
duration of this rule. NMFS corrected this take estimate to reflect 24 
takes over the five-year period, as described in the Estimated Take 
section of this final rule. NMFS has also adjusted the harbor seal take 
estimate in this final rule to reflect estimated take of 13.6 harbor 
seals per day, rather than 14 harbor seals per day included in the 
proposed rule, also described further in the Estimated Take section.
    Regarding mitigation, this final rule requires the Navy to 
establish a 55 m shutdown zone for LF cetaceans during impact driving 
of 24-in concrete piles, rather than 50 m included in the proposed 
rule.
    Regarding monitoring, the proposed rule stated that the Navy would 
conduct SSV for composite piles; however, this final rule does not 
include a requirement for the Navy to conduct SSV. Please see the 
Acoustic Monitoring section for additional information. This final rule 
requires the Navy to employ at least three PSOs during vibratory pile 
driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs 
during vibratory pile driving at Lambert's Point, though the exact 
locations have not been determined. For all other pile driving 
activities, a minimum of two PSOs will be used, as stated in the 
proposed rule (85 FR 83001; December 21, 2020). This change is 
reflected in the Monitoring and Reporting section of this final rule 
and in section 218.6(b).
    Regarding reporting, this final rule requires the Navy to report 
the estimated percentage of the Level B harassment zone that was not 
visible.

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 SARs (https://www.fisheries.noaa.gov/national/
marine-mammal-protection/

[[Page 24344]]

marine-mammal-stock-assessments) and more general information about 
these species (e.g., physical and behavioral descriptions) may be found 
on NMFS's website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
may be authorized, 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 (2020). 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's SARs). While no mortality is 
anticipated, nor will mortality be authorized, 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's 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. 2020). 
All values presented in Table 1 are the most recent available at the 
time of publication and are available in the 2019 SARs (Hayes et al. 
2020) or the 2020 draft SARS, available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

                      Table 1--Marine Mammal Species Likely to Occur Near the Project Area
----------------------------------------------------------------------------------------------------------------
                                                                            Stock abundance
                                                                 ESA/ MMPA  (CV, Nmin, most
         Common name          Scientific name       Stock         status;        recent         PBR    Annual M/
                                                                 strategic     abundance                 SI \3\
                                                                 (Y/N) \1\    survey) \2\
----------------------------------------------------------------------------------------------------------------
                      Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
 (rorquals):
    Humpback whale..........  Megaptera        Gulf of Maine..  -,-; N      1,396 (0;              22      12.15
                               novaeangliae.                                 1,380; see
                                                                             SAR).
----------------------------------------------------------------------------------------------------------------
                        Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
----------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Bottlenose dolphin......  Tursiops         Western North    -,-; Y      6,639 (0.41;           48  12.2-21.5
                               truncatus.       Atlantic (WNA)               4,759; 2016).
                                                Coastal,
                                                Northern
                                                Migratory.
                                               WNA Coastal,     -,-; Y      3,751 (0.06;           23     0-18.3
                                                Southern                     2,353; 2011).
                                                Migratory.
                                               Northern North   -,-; Y      823 (0.06; 782;       7.8     7.2-30
                                                Carolina                     2017).
                                                Estuarine
                                                System (NNCES).
Family Phocoenidae
 (porpoises):
    Harbor porpoise.........  Phocoena         Gulf of Maine/   -, -; N     95,543 (0.31;         851        217
                               phocoena.        Bay of Fundy.                74,034; 2016).
----------------------------------------------------------------------------------------------------------------
                                     Order Carnivora--Superfamily Pinnipedia
----------------------------------------------------------------------------------------------------------------
Family Phocidae (earless
 seals):
    Harbor seal.............  Phoca vitulina.  WNA............  -; N        75,834 (0.15;       2,006        350
                                                                             66,884, 2012).
Gray seal...................  Halichoerus      WNA............  -; N        27,131 (0.19,       1,359      4,729
                               grypus.                                       23,158, 2016).
----------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-)
  indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the
  MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is
  determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or
  stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum
  estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's 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.

    As indicated above, all five species (with seven managed stocks) in 
Table 1 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we may authorize 
take. While North Atlantic right whales (Eubalaena glacialis), minke 
whales (Balaenoptera acutorostrata acutorostrata), and fin whales 
(Balaenoptera physalus) have been documented in the area, the temporal 
and/or spatial occurrence of these whales is such that take is not 
expected to occur, and they are not discussed further beyond the 
explanation provided here.
    Based on sighting data and passive acoustic studies, the North 
Atlantic right whale could occur off Virginia year-round (DoN 2009; 
Salisbury et al. 2016). They have also been reported seasonally off 
Virginia during migrations in the spring, fall, and winter (CeTAP 1981, 
1982; Niemeyer et al. 2008; Kahn et al. 2009; McLellan 2011b, 2013; 
Mallette et al. 2016a, 2016b, 2017, 2018a; Palka et al. 2017; Cotter 
2019). Right whales are known to frequent the coastal waters of the 
mouth of the Chesapeake Bay (Knowlton et al. 2002) and the area is a 
seasonal management area (November 1-April 30) mandating reduced ship 
speeds out to approximately 20 nautical miles (37 km) for the species; 
however, the project area is further inside the Bay.
    North Atlantic right whales have stranded in Virginia, one each in 
2001, 2002, 2004, 2005: Three during winter (February and March) and 
one in summer (September) (Costidis et al. 2017, 2019). In January 
2018, a dead,

[[Page 24345]]

entangled North Atlantic right whale was observed floating over 60 
miles (96.6 km) offshore of Virginia Beach (Costidis et al. 2019). All 
North Atlantic right whale strandings in Virginia waters have occurred 
on ocean-facing beaches along Virginia Beach and the barrier islands 
seaward of the lower Delmarva Peninsula (Costidis et al. 2017). Due to 
the low occurrence of North Atlantic right whales in the project area, 
NMFS is not authorizing take of this species.
    Fin whales have been sighted off Virginia (Cetacean and Turtle 
Assessment Program (CeTAP) 1981, 1982; Swingle et al. 1993; DoN 2009; 
Hyrenbach et al. 2012; Barco 2013; Mallette et al. 2016a, b; Aschettino 
et al. 2018; Engelhaupt et al. 2017, 2018; Cotter 2019), and in the 
Chesapeake Bay (Bailey 1948; CeTAP 1981, 1982; Morgan et al. 2002; 
Barco 2013; Aschettino et al. 2018); however, they are not likely to 
occur in the project area. Sightings have been documented around the 
Chesapeake Bay Bridge Tunnel (CBBT) during the winter months (CeTAP 
1981, 1982; Barco 2013; Aschettino et al. 2018).
    Eleven fin whale strandings have occurred off Virginia from 1988 to 
2016 mostly during the winter months of February and March, followed by 
a few in the spring and summer months (Costidis et al. 2017). Six of 
the strandings occurred in the Chesapeake Bay (three on eastern shore; 
three on western shore) with the remaining five occurring on the 
Atlantic coast (Costidis et al. 2017). Documented strandings near the 
project area have occurred: February 2012, a dead fin whale washed 
ashore on Oceanview Beach in Norfolk (Swingle et al. 2013); December 
2017, a live fin whale stranded on a shoal in Newport News and died at 
the site (Swingle et al. 2018); February 2014, a dead fin whale 
stranded on a sand bar in Pocomoke Sound near Great Fox Island, 
Accomack (Swingle et al. 2015); and, March 2007, a dead fin whale near 
Craney Island, in the Elizabeth River, in Norfolk (Barco 2013). Only 
stranded fin whales have been documented in the project area; no free-
swimming fin whales have been observed. Due to the low occurrence of 
fin whales in the project area, NMFS is not authorizing take of this 
species.
    Minke whales have been sighted off Virginia (CeTAP 1981, 1982; 
Hyrenbach et al. 2012; Barco 2013; Mallette et al. 2016a, b; McLellan 
2017; Engelhaupt et al. 2017, 2018; Cotter 2019), near the CBBT 
(Aschettino et al. 2018), but sightings in the project area are from 
strandings (Jensen and Silber 2004; Barco 2013; DoN 2009). In August 
1994, a ship strike incident involved a minke whale in Hampton Roads 
(Jensen and Silber 2004; Barco 2013). It was reported that the animal 
was struck offshore and was carried inshore on the bow of a ship (DoN 
2009). Twelve strandings of minke whales have occurred in Virginia 
waters from 1988 to 2016 (Costidis et al. 2017). There have been six 
minke whale stranding from 2017 through 2020 in Virginia waters. 
Because all known minke whale occurrences in the project area are due 
to strandings, NMFS is not authorizing take of this species.
    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 (85 FR 83001; December 21, 2020); since 
that time, we are not aware of any changes in the status of these 
species and stocks, except that the Gulf of Maine humpback whale stock 
has been designated as strategic in the 2020 draft SARs; therefore, 
detailed descriptions are not provided here. Please refer to the 
proposed rule for these descriptions (85 FR 83001; December 21, 2020). 
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

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., LF 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 LF cetaceans where the lower bound was deemed to 
be biologically implausible and the lower bound from Southall et al. 
(2007) retained. Marine mammal hearing groups and their associated 
hearing ranges are provided in Table 2.

                                      Table 2--Marine Mammal Hearing Groups
                                                  [NMFS, 2018]
----------------------------------------------------------------------------------------------------------------
                       Hearing group                                     Generalized hearing range *
----------------------------------------------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen whales)...............  7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans (dolphins, toothed whales,      150 Hz to 160 kHz.
 beaked whales, bottlenose whales).
High-frequency (HF) cetaceans (true porpoises, Kogia, river  275 Hz to 160 kHz.
 dolphins, cephalorhynchid, Lagenorhynchus cruciger & L.
 australis).
Phocid pinnipeds (PW) (underwater) (true seals)............  50 Hz to 86 kHz.
Otariid pinnipeds (OW) (underwater) (sea lions and fur       60 Hz to 39 kHz.
 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).

[[Page 24346]]

    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Five marine mammal species (three cetacean and two phocid pinniped 
species) have the reasonable potential to co-occur with the planned 
construction activities. Please refer to Table 1. Of the cetacean 
species that may be present, one is classified as a LF cetacean (i.e., 
humpback whale) one is classified as a mid-frequency cetacean (i.e., 
bottlenose dolphin), 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 survey area. The proposed rule (85 FR 83001; December 
21, 2020) 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 is incorporated by reference into this 
final rule and is not repeated here; please refer to the proposed rule 
(85 FR 83001; December 21, 2020).
    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 (85 FR 
83001; December 21, 2020).

Estimated Take

    This section provides an estimate of the number of incidental takes 
that may be 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 B harassment only, in the form 
of disruption of behavioral patterns and potential TTS for individual 
marine mammals resulting from exposure to pile driving and removal. 
Based on the nature of the activity and the anticipated effectiveness 
of the mitigation measures (i.e., shutdown zones) discussed in detail 
below in the Mitigation Measures section, Level A harassment is neither 
anticipated nor will be authorized.
    As described previously, mortality is neither anticipated nor will 
be 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 for non-explosive sources--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 noise above received levels of 
120 dB re 1 [mu]Pa (rms) (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 120 and 160 dB re 1 [mu]Pa (rms) are applicable.
    Level A harassment for non-explosive sources--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 from two different types of sources 
(impulsive or non-impulsive). The Navy's planned construction includes 
the use of impulsive (impact pile driving) and non-impulsive (vibratory 
pile driving) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

[[Page 24347]]



                     Table 3--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: 218 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.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the planned project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the project (i.e., impact pile driving and 
vibratory pile driving). The largest calculated Level B harassment zone 
extends 7.2 km (4.5 mi) from the source (though truncated by land in 
some directions), with an area of 4.7 km\2\ (1.8 mi\2\), as calculated 
using geographic information system (GIS) data as determined by the 
transmission loss modeling.

                                      Table 4--Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
                                 Installation
      Pile size and type            method           RMS SPL        Peak SPL           SEL            Source
----------------------------------------------------------------------------------------------------------------
24-in Square Concrete........  Impact..........             176             189             163  Illingworth and
                                                                                                  Rodkin, 2017.
16-in Composite..............  Impact..........             165             177             157  Caltrans,
                                                                                                  2015.\1\
                               Vibratory.......             158  ..............  ..............  Illingworth and
                                                                                                  Rodkin, 2017.
12-in Timber.................  Vibratory.......         \2\ 158  ..............  ..............  Illingworth and
                                                                                                  Rodkin, 2017.
----------------------------------------------------------------------------------------------------------------
\1\ These source levels are from a 12-in timber pile (Table 2-2, page 2-16).
\2\ NMFS typically recommends a proxy source level of 152dB RMS SPL for installation and removal of 12-in timber
  piles; however, the Navy's application included specialized modeling (described below) using 158dB RMS SPL.
  Given that modeling and that 158dB RMS SPL is a more conservative source level, NMFS concurred with the use of
  158dB RMS SPL as the proxy source level for 12-in timber piles.

    The Navy contracted the University of Washington, Applied Physics 
Laboratory (APL) to conduct site-specific acoustic transmission loss 
modeling for the project. The APL's full report is included in Appendix 
B of the Navy's application. NMFS independently reviewed and concurred 
with the modeling in the report, and has adopted the resulting 
isopleths for the project, as included in Table 5.

                                                    Table 5--Level A and Level B Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Level A harassment isopleth (m)                     Level B
                                                                         ----------------------------------------------------------------   harassment
                   Site                          Pile size and type                                                                        isopleth (m)
                                                                            LF cetacean     MF cetacean     HF cetacean       Phocid            \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 3....................................  16-in Composite.............              18                       <10m                                   27
Pier 12...................................  16-in Composite.............              18                                                              24
MWR Marina................................  24-in Concrete..............              52                                                              59
                                            16-in Composite.............              11                                                              18
V-Area....................................  24-in Concrete..............              42                                                              47
                                            16-in Composite.............              11                                                              17
Craney Island.............................  16-in Composite.............              16                                                              21
Lambert's Point...........................  16-in Composite.............              19                                                              28
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Vibratory Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pier 3....................................  16-in Composite/12-in Timber                               <10m                                        5,615
Pier 12...................................                                                                                                         4,159
MWR Marina................................                                                                                                           469
V-Area....................................                                                                                                           382

[[Page 24348]]

 
Craney Island.............................  16-in Composite/12-in Timber                               <10m                                        3,001
Lambert's Point...........................                                                                                                         7,161
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Please refer to Tables 6-5 and 6-6 in the Navy's application for the areas of the Level B harassment zones.

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. We describe how the information provided above is brought 
together to produce a quantitative take estimate.
Humpback Whale
    Humpback whales occur in the mouth of the Chesapeake Bay and 
nearshore waters of Virginia during winter and spring months. Most 
detections during shipboard surveys were of one or two juveniles per 
sighting. Although two individuals were detected in the vicinity of MPU 
project activities, there is no evidence that they linger for multiple 
days. Because no density estimates are available for the species in 
this area, the Navy estimated one take for every 60 days of pile 
driving. However, given the potential group size of two, as indicated 
by the sightings referenced above, NMFS has estimated that two humpback 
whales may be taken by Level B harassment for every 60 days of pile 
driving. Therefore, given the number of project days expected in each 
year (Table 4), NMFS may authorize a total of 24 takes by Level B 
harassment of humpback whale over the five-year authorization, with no 
more than eight takes by Level B harassment in one year.
    The largest Level A harassment zone for low-frequency cetaceans 
extends approximately 52 m from the source during impact pile driving 
of 24-in concrete piles at the MWR Marina (Table 5). For most 
activities, the Level A harassment zone is less than 20 m. The Navy is 
planning to implement a 55-m shutdown zone for humpback whales during 
impact pile driving of 24-in concrete piles, and shutdown zones that 
include the entire Level A harassment isopleth for all activities, as 
indicated in Table 11. Therefore, the Navy did not request, and NMFS 
will not authorize Level A harassment take of humpback whale.
Bottlenose Dolphin
    The expected number of bottlenose dolphins in the project area was 
estimated using inshore seasonal densities provided in Engelhaupt et 
al. (2016) from vessel line-transect surveys near NAVSTA Norfolk and 
adjacent areas near Virginia Beach, Virginia, from August 2012 through 
August 2015 (Engelhaupt et al. 2016). To calculate Level B harassment 
takes of bottlenose dolphin, NMFS used the Chesapeake Bay density of 
1.38 dolphins/km\2\ (Engelhaupt et al. 2016). This density includes 
sightings inshore of the Chesapeake Bay from NAVSTA Norfolk west to the 
Thimble Shoals Bridge, and is the most representative density for the 
project area. NMFS conservatively multiplied the density of 1.38 
dolphins/km\2\ by the largest Level B harassment zone for each project 
location (Table 7) and then by the proportional number of estimated 
pile driving days at each location for each year (Table 6). For 
example, to calculate Level B harassment takes associated with work at 
Pier 3 in 2021, NMFS multiplied the density (1.38 dolphins/km\2\) by 
largest Level B harassment zone for Pier 3 (10.3 km\2\) by the 
proportional number of pile driving days at Pier 3 in 2021 (24.6) for a 
total of 350 Level B harassment takes at Pier 3 in 2021. Therefore, 
NMFS may authorize 7,566 takes by Level B harassment of bottlenose 
dolphin across all five years, with no more than 2,742 in one year.

                     Table 6--Estimated Number of Pile Driving Days at Each Project Location
----------------------------------------------------------------------------------------------------------------
                                                       Estimated       Proportional number of pile driving days
                                                    number of  pile                      \3\
                   Location \1\                      driving  days  --------------------------------------------
                                                     (all seasons)     2021     2022     2023     2024     2025
----------------------------------------------------------------------------------------------------------------
Pier 3............................................               68     24.6     10.0      2.1      9.0     22.3
Pier 12...........................................              352    127.6     51.5     11.0     46.6    115.3
MWR Marina........................................               52     18.8      7.6      1.6      6.9     17.0
V-Area............................................               44     15.9      6.4      1.4      5.8     14.4
Craney Island.....................................               52     18.8      7.6      1.6      6.9     17.0
Lambert's Point...................................                8      2.9      1.2      0.3      1.1      2.6
                                                   -------------------------------------------------------------
    Estimated Total Pile Driving Days per Year....          \2\ 574      208       84       18       76      188
                                                   -------------------------------------------------------------
    Percentage of Total Pile Driving Days.........  ...............       36       15        3       13       33
----------------------------------------------------------------------------------------------------------------
\1\ While the Navy plans to conduct work at additional locations not listed here, these locations are assumed to
  be representative of the overall project site (ex: all pile driving lumped together at Lambert's Point
  Deperming Station), as noted in Appendix A of the Navy's application. Pile driving at these additional
  locations is included in the total number of pile driving days assumed here.
\2\ NMFS recognizes that due to rounding, the sum of the estimated number of work days at each location is 576,
  not 574. However, as mentioned previously, the Navy expects construction to last 574 days across all five
  years.
\3\ The number of pile driving days indicated per year at each location is intended to inform our assessment of
  both the total and maximum annual taking allowable under the rule. NMFS does not expect that the Navy will
  conduct exactly the fractional number of days of pile driving indicated for each year in each location.


[[Page 24349]]


               Table 7--Annual Level B Harassment Takes of Bottlenose Dolphin by Project Location
----------------------------------------------------------------------------------------------------------------
                                            Largest  Level              Level B harassment takes \1\
                 Location                    B  harassment -----------------------------------------------------
                                             zone  (km\2\)    2021     2022     2023     2024     2025    Total
----------------------------------------------------------------------------------------------------------------
Pier 3....................................            10.3    350.2    141.4     30.3    128.0    316.6    966.6
Pier 12...................................            13.1  2,305.9    931.2    199.6    842.5  2,084.2  6,363.5
MWR Marina................................             0.2      5.2      2.1      0.5      1.9      4.7     14.4
V-Area....................................             0.2      4.4      1.8      0.4      1.6      4.0     12.1
Craney Island.............................             2.2     57.2     23.1      5.0     20.9     51.7    157.9
Lambert's Point...........................             4.7     18.8      7.6      1.6      6.9     17.0     51.9
                                           ---------------------------------------------------------------------
    Total Level B Harassment Takes per      ..............    2,742    1,107      237    1,002    2,478    7,566
     Year.................................
                                           ---------------------------------------------------------------------
    Annual Takes as Percentage of Five-     ..............     36.2     14.6      3.1     13.2     32.8  .......
     Year Total...........................
----------------------------------------------------------------------------------------------------------------
\1\ Note actual calculations were not rounded at each step as they are shown in Table 6 and Table 7.

    The Level A harassment zones for mid-frequency cetaceans extend 
less than 10 m from the source during all activities (Table 5). Given 
the small size of the Level A harassment zones, we do not expect Level 
A harassment take of bottlenose dolphins. Additionally, the Navy is 
planning to implement a 10 m shutdown zone for bottlenose dolphins 
during all pile driving and other in-water activities (Table 11), which 
includes the entire Level A harassment zone for all pile driving 
activities. Therefore, the Navy did not request, and NMFS will not 
authorize Level A harassment take of bottlenose dolphin.
Harbor Porpoise
    Harbor porpoises are known to occur in the coastal waters near 
Virginia Beach (Hayes et al. 2019). Density data for this species 
within the project vicinity do not exist or were not calculated because 
sample sizes were too small to produce reliable estimates of density. 
Harbor porpoise sighting data collected by the U.S. Navy near NAVSTA 
Norfolk and Virginia Beach from 2012 to 2015 (Engelhaupt et al. 2014; 
2015; 2016) did not produce enough sightings to calculate densities. 
One group of two harbor porpoises was seen during spring 2015 
(Engelhaupt et al. 2016). Elsewhere in their range, harbor porpoises 
typically occur in groups of two to three individuals (Carretta et al. 
2001; Smultea et al. 2017).
    Because there are no density estimates for the species in the MPU 
project area, the Navy conservatively estimated two takes of harbor 
porpoise by Level B harassment per 60 pile driving days (Table 4), 
resulting in 20 takes by Level B harassment across the five year rule, 
and no more than seven takes by Level B harassment in one year. NMFS 
corrected this estimate in this final rule to reflect that an estimated 
two takes of harbor porpoise by Level B harassment per 60 pile driving 
days results in 24 takes by Level B harassment over the five year 
duration of the rule, with no more than eight takes by Level B 
harassment in one year (Table 9). NMFS may authorize 24 takes by Level 
B harassment of harbor porpoise.
    The Level A harassment zones for high-frequency cetaceans extend 
less than 10 m from the source during all activities (Table 5). Given 
the small size of the Level A harassment zones, we do not expect take 
by Level A harassment of harbor porpoise. Additionally, the Navy is 
planning to implement a 10 m shutdown zone for during pile driving and 
other in-water activities (Table 11). Therefore, the Navy did not 
request, and NMFS will not authorize take by Level A harassment of 
harbor porpoise.
Harbor Seal
    The expected number of harbor seals in the project area was 
estimated using systematic, land- and vessel-based survey data for in-
water and hauled-out seals collected by the U.S. Navy at the CBBT rock 
armor and portal islands from 2014 through 2019 (Jones et al. 2020). 
The average daily seal count from the 2014 through 2019 field seasons 
ranged from 8 to 23, with an average of 13.6 harbor seals across all 
the field seasons (Table 8).

                           Table 8--Harbor Seal Counts at Chesapeake Bay Bridge Tunnel
----------------------------------------------------------------------------------------------------------------
                                                   ``In season''    Total seal     Average daily     Max daily
                  Field season                      survey days        count        seal count      seal count
----------------------------------------------------------------------------------------------------------------
2014-2015.......................................              11             113              10              33
2015-2016.......................................              14             187              13              39
2016-2017.......................................              22             308              14              40
2017-2018.......................................              15             340              23              45
2018-2019.......................................              10              82               8              17
                                                 ---------------------------------------------------------------
    Average.....................................  ..............  ..............            13.6            34.8
----------------------------------------------------------------------------------------------------------------
Source: Jones et al. 2020.

    The Navy expects, and NMFS concurs, that harbor seals are likely to 
be present from November to April. In the proposed rule, NMFS 
calculated take by Level B harassment by multiplying 14 seals by the 
number of pile driving days expected in each year if fewer than 183 
project days (half of the year) were expected. To account for seasonal 
occurrence (November to April), NMFS calculated take based on 183 
project days for years which have more than 183 expected project days 
(2021, 2025). In this final rule, NMFS calculated take in a parallel 
manner to

[[Page 24350]]

that done in the proposed rule, except NMFS estimated 13.6 seals per 
day, rather than 14 seals per day to produce a more exact take estimate 
using the average daily seal count from Jones et al. (2020). Therefore, 
NMFS may authorize 7,399 takes by Level B harassment of harbor seals 
across the five-year duration of this rule, with no more than 2,489 
takes by Level B harassment in one year (Table 9).
    The Level A harassment zones for phocids extend less than 10 m from 
the source during all activities (Table 5). Given the small size of the 
Level A harassment zones, we do not expect take by Level A harassment 
of harbor seal. Additionally, the Navy is planning to implement a 10 m 
shutdown zone for during pile driving and other in-water activities 
(Table 11), which includes the entire Level A harassment zone for all 
pile driving activities. Therefore, the Navy did not request, and NMFS 
will not authorize take by Level A harassment of harbor seal.
Gray Seal
    Very little information is available about the occurrence of gray 
seals in the Chesapeake Bay and coastal waters. Although the population 
of the United States may be increasing, there are only a few records at 
known haulout sites in Virginia used by harbor seals, strandings are 
rare, and they have not been reported in shipboard surveys. Assuming 
that they may utilize the Chesapeake Bay waters, the Navy 
conservatively estimates that one gray seal may be exposed to noise 
levels above the Level B harassment threshold for every 60 days of 
vibratory pile driving during the six month period when they are most 
likely to be present. NMFS concurs, and calculated take based on the 
number of project days for years which have fewer than 183 project days 
(half of the year). To account for the expected seasonal presence of 
gray seals, NMFS calculated take based on 183 project days for years 
which have more than 183 expected project days (2021, 2025). Therefore, 
NMFS may authorize nine takes by Level B harassment of gray seals over 
the five-year duration of the rule, with no more than three takes by 
Level B harassment in one year (Table 9).
    The Level A harassment zones for phocids extend less than 10 m from 
the source during all activities (Table 5). Given the small size of the 
Level A harassment zones and the low occurrence of gray seals in the 
project area, we do not expect Level A harassment take of gray seal. 
Additionally, the Navy is planning to implement a 10 m shutdown zone 
for during pile driving and other in-water activities (Table 11), which 
includes the entire Level A harassment zone for all pile driving 
activities. Therefore, the Navy did not request, and NMFS will not 
authorize take by Level A harassment of gray seal.

                                                Table 9--Estimated Take by Level B Harassment, by Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                               2021            2022            2023            2024            2025            Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale..........................................               8               4               2               4               6              24
Bottlenose dolphin......................................           2,742           1,107             237           1,002           2,478           7,566
Harbor porpoise \1\.....................................               8               4               2               4               6              24
Harbor seal \1\.........................................           2,489           1,142             245           1,034           2,489           7,399
Gray seal...............................................               3               1               1               1               3               9
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Updated since publication of the proposed rule.


     Table 10--Estimated Take by Level B Harassment (Greatest Annual Take Expected), by Species and Stock in
                                          Comparison to Stock Abundance
----------------------------------------------------------------------------------------------------------------
                                                                                      Level B
                Species                           Stock                Stock        harassment      Percent  of
                                                                     abundance         take            stock
----------------------------------------------------------------------------------------------------------------
Humpback Whale........................  Gulf of Maine...........      \b\ 12,312               8             0.6
Bottlenose Dolphin....................  WNA Coastal, Northern              6,639           1,353            20.4
                                         Migratory \a\.
                                        WNA Coastal, Southern              3,751           1,353            36.1
                                         Migratory \a\.
                                        NNCES \c\...............             823              36             4.4
Harbor Porpoise.......................  Gulf of Maine/Bay of              95,543           \e\ 8           0.008
                                         Fundy.
Harbor Seal...........................  Western North Atlantic..          75,834       \e\ 2,489         \e\ 3.3
Gray Seal.............................  Western North Atlantic..      \d\ 27,131               3            0.01
----------------------------------------------------------------------------------------------------------------
\a\ Take estimates are weighted based on calculated percentages of population for each distinct stock, assuming
  animals present would follow same probability of presence in the project area. Please see the Small Numbers
  section for additional information.
\b\ West Indies DPS.
\c\ Assumes multiple repeated takes of same individuals from small portion of each stock as well as repeated
  takes of Chesapeake Bay resident population (size unknown). Please see the Small Numbers section for
  additional information.
\d\ This stock abundance estimate includes only the U.S. portion of this stock. The actual stock abundance,
  including the Canadian portion of the population, is estimated to be approximately 451,431 animals.
\e\ Updated since publication of the proposed rule.

Mitigation Measures

    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 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, as

[[Page 24351]]

well as subsistence uses where applicable, 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.
    In addition to the measures described later in this section, the 
Navy will employ the following mitigation measures:
     For in-water heavy machinery work other than pile driving, 
if a marine mammal comes within 10 m, operations shall cease and 
vessels shall reduce speed to the minimum level required to maintain 
steerage and safe working conditions;
     The Navy will conduct briefings between construction 
supervisors and crews and the marine mammal monitoring team prior to 
the start of all pile driving activity and when new personnel join the 
work, to explain responsibilities, communication procedures, marine 
mammal monitoring protocol, and operational procedures;
     For those marine mammals for which Level B harassment take 
has not been requested, in-water pile installation/removal will shut 
down immediately if such species are observed within or entering the 
Level B harassment zone; and
     If take reaches the authorized limit for an authorized 
species, pile installation/removal will shut down immediately if these 
species approach the Level B harassment zone to avoid additional take.
    The following mitigation measures apply to the Navy's in-water 
construction activities.
    Establishment of Shutdown Zones--The Navy will establish shutdown 
zones for all pile driving and removal 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 11).
    Protected Species Observers (PSOs)--The placement of PSOs during 
all pile driving and removal activities (described in the Monitoring 
and Reporting section) will ensure that the entire shutdown zone is 
visible during pile driving and removal. Should environmental 
conditions deteriorate such that marine mammals within the entire 
shutdown zone would not be visible (e.g., fog, heavy rain, night), pile 
driving and removal must be delayed until the PSO is confident marine 
mammals within the shutdown zone could be detected.
    Monitoring for Level B Harassment--The Navy will monitor 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) to the extent practicable, and the Level A 
harassment zones. The Navy will monitor at least a portion of the Level 
B harassment zone on all pile driving days. Monitoring zones provide 
utility for observing by establishing monitoring protocols for areas 
adjacent to the shutdown zones. Monitoring zones enable observers to be 
aware of and communicate the presence of marine mammals in the project 
area outside the shutdown zone and thus prepare for a potential 
cessation of activity should the animal enter the shutdown zone.
    Pre-activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving/removal of 
30 minutes or longer occurs, PSOs will observe the shutdown and 
monitoring zones for a period of 30 minutes. The shutdown zone will be 
considered cleared when a marine mammal has not been observed within 
the zone for that 30-minute period.
    If a marine mammal is observed within the shutdown zone, a soft-
start cannot proceed until the animal has left the zone or has not been 
observed for 15 minutes. When a marine mammal for which Level B 
harassment take is authorized is present in the Level B harassment 
zone, activities may begin and Level B harassment take will be 
recorded. If the entire Level B harassment zone is not visible at the 
start of construction, pile driving activities can begin. If work 
ceases for more than 30 minutes, the pre-activity monitoring of the 
shutdown zones will commence. A determination that the shutdown zone is 
clear must be made during a period of good visibility (i.e., the entire 
shutdown zone and surrounding waters must be visible to the naked eye).
    Soft Start--Soft-start procedures are believed to provide 
additional protection to marine mammals by providing warning and/or 
giving marine mammals a chance to leave the area prior to the hammer 
operating at full capacity. For impact pile driving, contractors will 
be required to provide an initial set of three strikes from the hammer 
at reduced energy, followed by a 30-second waiting period. This 
procedure will be conducted three times before impact pile driving 
begins. 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.
    The Navy does not plan to use a pile driving energy attenuator 
during construction.

                          Table 11--Shutdown Zones During Pile Installation and Removal
----------------------------------------------------------------------------------------------------------------
                                                                           Shutdown zone
             Site                 Pile size and  ---------------------------------------------------------------
                                      type          LF cetacean     MF cetacean     HF cetacean       Phocid
----------------------------------------------------------------------------------------------------------------
Pier 3........................  16-in Composite.              20                        10m
Pier 12.......................  16-in Composite.              20
MWR Marina....................  24-in Concrete..              55
                                16-in Composite.              20
V-Area........................  24-in Concrete..              55
                                16-in Composite.              20
Craney Island.................  16-in Composite.              20
Lambert's Point...............  16-in Composite.              20
----------------------------------------------------------------------------------------------------------------
Pier 3........................  16-in Composite/                                10m
                                 12-in Timber.

[[Page 24352]]

 
Pier 12                         16-in Composite/                                10m
                                 12-in Timber
MWR Marina
V-Area
Craney Island
Lambert's Point
----------------------------------------------------------------------------------------------------------------

    Based on our evaluation of the Navy's planned measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
required mitigation measures provide the means effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

    In order to issue an LOA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. NMFS' MMPA implementing 
regulations further describe the information that an applicant should 
provide when requesting an authorization (50 CFR 216.104 (a)(13)), 
including the means of accomplishing the necessary monitoring and 
reporting that will result in increased knowledge of the species and 
the level of taking or impacts on populations of marine mammals.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     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);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.
    The Navy will submit a Marine Mammal Monitoring Plan to NMFS for 
approval in advance of the start of construction.

Visual Monitoring

    Marine mammal monitoring during pile driving and removal must be 
conducted by PSOs meeting NMFS' standards and in a manner consistent 
with the following:
     Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods must be used;
     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;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
     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 working as a marine mammal observer 
during construction.
    PSOs must have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     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
     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.
    At least three PSOs must be used during vibratory pile driving at 
Pier 3, Pier 12, and Craney Island, and at least four PSOs during 
vibratory pile driving at Lambert's Point, as recommended by the 
Commission in its comments on the proposed rule. For all other pile 
driving activities, a minimum of two PSOs will be used, as stated in 
the proposed rule (85 FR 83001; December 21, 2020). Depending on 
available resources, and depending on the size of the zone associated 
with the activity, additional PSOs may be utilized as necessary. PSOs 
will be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement shutdown/delay procedures. (See Figure 13-
1 of the Navy's application for example representative monitoring 
locations.)
    Monitoring will be conducted 30 minutes before, during, and 30 
minutes after pile driving activities. In addition, observers shall 
record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven or removed. Pile driving 
activities include the time to install or remove a single pile or 
series of piles, as long as the time elapsed between uses of the pile 
driving equipment is no more than 30 minutes.

Acoustic Monitoring

    Since publication of the proposed rule, the Navy has determined 
that SSV may not be feasible given budget constraints associated with 
the individual, small-scale projects planned. However, subject to 
funding availability, the Navy may conduct a SSV study for pile types 
other than timber piles (prioritizing composite pile types) and would 
follow accepted methodological standards to achieve

[[Page 24353]]

their objectives. The Navy would submit an acoustic monitoring plan to 
NMFS for approval prior to implementation of the plan. Upon review of 
the Navy's SSV results, NMFS may update the Level A and Level B 
harassment zone sizes and the associated shutdown zones, as 
appropriate.

Reporting

    The Navy will submit a draft report to NMFS within 45 workdays of 
the completion of required monitoring for each MPU project. The report 
will detail the monitoring protocol and summarize the data recorded 
during monitoring. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
driven or removed and by what method (i.e., impact or vibratory);
     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 (if less 
than the harassment zone distance);
     The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting;
     Age and sex class, if possible, of all marine mammals 
observed;
     PSO locations during marine mammal monitoring;
     Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);
     Description of any marine mammal behavior patterns during 
observation, including direction of travel and estimated time spent 
within the Level A and Level B harassment zones while the source was 
active;
     Number of marine mammals detected within the harassment 
zones, by species;
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any;
     Description of attempts to distinguish between the number 
of individual animals taken and the number of incidences of take, such 
as ability to track groups or individuals; and
     Estimated percentage of the Level B harassment zone that 
was not visible.
    If no comments are received from NMFS within 30 days, the draft 
report will constitute the final report. If comments are received, a 
final report addressing NMFS comments must be submitted within 30 days 
after receipt of comments.
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the Navy shall report the 
incident to the Office of Protected Resources (OPR) (301-427-8401), 
NMFS and to the Greater Atlantic Region New England/Mid-Atlantic 
Regional 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 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 the authorization. The Navy must not resume their activities until 
notified by NMFS.
    The report must include the following information:
    i. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    ii. Species identification (if known) or description of the 
animal(s) involved;
    iii. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    iv. Observed behaviors of the animal(s), if alive;
    v. If available, photographs or video footage of the animal(s); and
    vi. 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's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are 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 1, 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, impact 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 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 B harassment, identified 
above, while activities are underway.
    No serious injury or mortality would be expected even in the 
absence of the required mitigation measures. For all species other than 
humpback whale, no Level A harassment is anticipated given the nature 
of the activities. For humpback whale, no Level A harassment is 
anticipated due to the required mitigation measures, which we expect 
the Navy will be able to effectively implement given the small Level A 
harassment zone sizes and high visibility of humpback whales.
    The Navy's planned pile driving activities and associated impacts 
will occur within a limited portion of the confluence of the Chesapeake 
Bay area. Localized noise exposures produced by project activities may 
cause short-term behavioral modifications in affected cetaceans and 
pinnipeds. However, as described previously, the mitigation and 
monitoring measures are expected to

[[Page 24354]]

further reduce the likelihood of injury as well as reduce behavioral 
disturbances.
    Effects on individuals that are taken by Level B harassment, 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). Individual animals, even if taken multiple times, will most 
likely 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. Furthermore, many 
projects similar to this one are also believed to result in multiple 
takes of individual animals without any documented long-term adverse 
effects. 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 busy waterfront with high amounts of vessel traffic.
    As described in the proposed rule (85 FR 83001; December 21, 2020), 
Unusual Mortality Events (UMEs) have been declared for Northeast 
pinnipeds (including harbor seal and gray seal) and Atlantic humpback 
whales. However, we do not expect takes that may be authorized under 
this rule to exacerbate or compound upon these ongoing UMEs. As noted 
previously, no injury, serious injury, or mortality is expected or will 
be authorized, and Level B harassment takes of humpback whale, harbor 
seal and gray seal will be reduced to the level of least practicable 
adverse impact through the incorporation of the required mitigation 
measures. For the WNA stock of gray seal, the estimated stock abundance 
is 451,431 animals, including the Canadian portion of the stock 
(estimated 27,131 animals in the U.S. portion of the stock). Given that 
only 1 to 3 takes by Level B harassment may be authorized for this 
stock annually, we do not expect this authorization to exacerbate or 
compound upon the ongoing UME.
    With regard to humpback whales, despite the UME, the relevant 
population of humpback whales (the West Indies breeding population, or 
distinct population segment (DPS)) remains healthy. Prior to 2016, 
humpback whales were listed under the ESA as an endangered species 
worldwide. Following a 2015 global status review (Bettridge et al. 
2015), NMFS established 14 DPSs with different listing statuses (81 FR 
62259; September 8, 2016) pursuant to the ESA. The West Indies DPS, 
which consists of the whales whose breeding range includes the Atlantic 
margin of the Antilles from Cuba to northern Venezuela, and whose 
feeding range primarily includes the Gulf of Maine, eastern Canada, and 
western Greenland, was delisted. The status review identified harmful 
algal blooms, vessel collisions, and fishing gear entanglements as 
relevant threats for this DPS, but noted that all other threats are 
considered likely to have no or minor impact on population size or the 
growth rate of this DPS (Bettridge et al. 2015). As described in 
Bettridge et al. (2015), the West Indies DPS has a substantial 
population size (i.e., 12,312 (95% CI 8,688-15,954) whales in 2004-05 
(Bettridge et al. 2003)), and appears to be experiencing consistent 
growth. Further, NMFS will authorize no more than eight takes by Level 
B harassment annually of humpback whale.
    For the WNA stock of harbor seals, the estimated abundance is 
75,834 individuals. The estimated M/SI for this stock (350) is well 
below the PBR (2,006). As such, the Level B harassment takes of harbor 
seal that may be authorized are not expected to exacerbate or compound 
upon the ongoing UMEs.
    The project is also not expected to have significant adverse 
effects on affected marine mammals' habitats. The project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish to leave the area of 
disturbance, thus temporarily 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 (with no known particular 
importance to marine mammals), 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:
     No mortality or serious injury is anticipated or will be 
authorized;
     No Level A harassment take is anticipated or will be 
authorized;
     The intensity of anticipated takes by Level B harassment 
is relatively low for all stocks;
     The number of anticipated takes is very low for humpback 
whale, harbor porpoise, and gray seal;
     The specified activity and associated ensonifed areas are 
very small relative to the overall habitat ranges of all species and do 
not include habitat areas of special significance (Biologically 
Important Areas or ESA-designated critical habitat);
     The lack of anticipated significant or long-term negative 
effects to marine mammal habitat; and
     The presumed efficacy of the mitigation measures in 
reducing the effects of the specified activity.
    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 planned 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 and 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.
    The instances of take of humpback whale, harbor porpoise, harbor 
seal, and gray seal which NMFS expects to authorize, comprises less 
than one-third of the best available stock abundance (Table 10). The 
number of animals that we expect to authorize to be taken from these 
stocks would be considered small relative to the relevant stock's

[[Page 24355]]

abundances even if each estimated taking occurred to a new individual, 
which is an unlikely scenario.
    Three bottlenose dolphin stocks could occur in the project area: 
WNA Coastal Northern Migratory, WNA Coastal Southern Migratory, and 
NNCES stocks. Therefore, the estimated takes of bottlenose dolphin by 
Level B harassment would likely be portioned among these stocks. Based 
on the stocks' respective occurrence in the area, NMFS estimated that 
there would be 100 takes from the NNCES stock over the five-year period 
(no more than 36 in one year), with the remaining takes evenly split 
between the northern and southern migratory coastal stocks. Based on 
consideration of various factors described below, we have determined 
the numbers of individuals taken would likely comprise less than one-
third of the best available population abundance estimate of either 
coastal migratory stock.
    Both the WNA Coastal Northern Migratory and WNA Coastal Southern 
Migratory stocks have expansive ranges, and they are the only dolphin 
stocks thought to make broad-scale, seasonal migrations in coastal 
waters of the western North Atlantic. Given the large ranges associated 
with these stocks it is unlikely that large segments of either stock 
would approach the project area and enter into the Chesapeake Bay. The 
majority of both stocks are likely to be found widely dispersed across 
their respective habitat ranges and unlikely to be concentrated in or 
near the Chesapeake Bay.
    Furthermore, the Chesapeake Bay and nearby offshore waters 
represent the boundaries of the ranges of each of the two coastal 
stocks during migration. The WNA Coastal Northern Migratory stock 
occurs during warm water months from coastal Virginia, including the 
Chesapeake Bay and Long Island, New York. The stock migrates south in 
late summer and fall. During cold-water months, dolphins may occur in 
coastal waters from Cape Lookout, North Carolina, to the North 
Carolina/Virginia. During January-March, the WNA Coastal Southern 
Migratory stock appears to move as far south as northern Florida. From 
April to June, the stock moves back north to North Carolina. During the 
warm water months of July-August, the stock is presumed to occupy 
coastal waters north of Cape Lookout, North Carolina, to Assateague, 
Virginia, including the Chesapeake Bay. There is likely some overlap 
between the northern and southern migratory stocks during spring and 
fall migrations, but the extent of overlap is unknown.
    The Chesapeake Bay and waters offshore of its mouth are located on 
the periphery of the migratory ranges of both coastal stocks (although 
during different seasons). Additionally, each of the migratory coastal 
stocks are likely to be located in the vicinity of the Chesapeake Bay 
for relatively short timeframes. Given the limited number of animals 
from each migratory coastal stock likely to be found at the seasonal 
migratory boundaries of their respective ranges, in combination with 
the short time periods (~two months) animals might remain at these 
boundaries, it is reasonable to assume that takes are likely to occur 
to only a small portion of either of the migratory coastal stocks.
    Both migratory coastal stocks likely overlap with the NNCES stock 
at various times during their seasonal migrations. The NNCES stock is 
defined as animals that primarily occupy waters of the Pamlico Sound 
estuarine system (which also includes Core, Roanoke, and Albemarle 
sounds, and the Neuse River) during warm water months (July-August). 
Animals from this stock also use coastal waters (<=1 km from shore) of 
North Carolina from Beaufort north to Virginia Beach, Virginia, 
including the lower Chesapeake Bay. Comparison of dolphin photo-
identification data confirmed that limited numbers of individual 
dolphins observed in Roanoke Sound have also been sighted in the 
Chesapeake Bay (Young, 2018). Like the migratory coastal dolphin 
stocks, the NNCES stock covers a large range. The spatial extent of 
most small and resident bottlenose dolphin populations is on the order 
of 500 km\2\, while the NNCES stock occupies over 8,000 km\2\ 
(LeBrecque et al. 2015). Given this large range, it is again unlikely 
that a preponderance of animals from the NNCES stock would depart the 
North Carolina estuarine system and travel to the northern extent of 
the stock's range. However, recent evidence suggests that there is 
likely a small resident community of NNCES dolphins of indeterminate 
size that inhabits the Chesapeake Bay year-round (E. Patterson, NMFS, 
pers. comm.).
    Many of the dolphin observations in the Chesapeake Bay are likely 
repeated sightings of the same individuals. The Potomac-Chesapeake 
Dolphin Project has observed over 1,200 unique animals since 
observations began in 2015. Re-sightings of the same individual can be 
highly variable. Some dolphins are observed once per year, while others 
are highly regular with greater than 10 sightings per year (J. Mann, 
Potomac-Chesapeake Dolphin Project, pers. comm.). Similarly, using 
available photo-identification data, Engelhaupt et al. (2016) 
determined that specific individuals were often observed in close 
proximity to their original sighting locations and were observed 
multiple times in the same season or same year. Ninety-one percent of 
re-sighted individuals (100 of 110) in the study area were recorded 
less than 30 km from the initial sighting location. Multiple sightings 
of the same individual would considerably reduce the number of 
individual animals that are taken by Level B harassment. Furthermore, 
the existence of a resident dolphin population in the Bay would 
increase the percentage of dolphin takes that are actually re-sightings 
of the same individuals.
    In summary and as described above, the following factors primarily 
support our determination regarding the incidental take of small 
numbers of the affected stocks of bottlenose dolphin:
     Potential bottlenose dolphin takes in the project area are 
likely to be allocated among three distinct stocks;
     Bottlenose dolphin stocks in the project area have 
extensive ranges and it would be unlikely to find a high percentage of 
any one stock concentrated in a relatively small area such as the 
project area or the Chesapeake Bay;
     The Chesapeake Bay represents the migratory boundary for 
each of the specified dolphin stocks and it would be unlikely to find a 
high percentage of any stock concentrated at such boundaries; and
     Many of the takes would likely be repeats of the same 
animals and likely from a resident population of the Chesapeake Bay.
    Based on the analysis contained herein of the planned activity 
(including the required 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 maintenance construction activities

[[Page 24356]]

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 insure that any action it authorizes, funds, or 
carries out is not likely to jeopardize the continued existence of any 
endangered or threatened species or result in the destruction or 
adverse modification of designated critical habitat. To ensure ESA 
compliance for the issuance of incidental take authorizations, NMFS 
consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is expected to result from 
this activity. 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 has 
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 U.S. 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 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. Notwithstanding any other provision 
of law, no person is required to respond to nor shall a person be 
subject to a penalty for failure to comply with a collection of 
information subject to the requirements of the PRA unless that 
collection of information displays a currently valid OMB control 
number. These requirements have been approved by OMB under control 
number 0648-0151 and include applications for regulations, subsequent 
LOAs, and reports.

List of Subjects in 50 CFR Part 218

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: April 30, 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 218 is amended 
as follows:

PART 218--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 218 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.

0
2. Add subpart A to part 218 to read as follows:
Subpart A--Taking and Importing Marine Mammals Incidental to U.S. Navy 
Construction at Naval Station Norfolk in Norfolk, Virginia
Sec.
218.1 Specified activity and geographical region.
218.2 Effective dates.
218.3 Permissible methods of taking.
218.4 Prohibitions.
218.5 Mitigation requirements.
218.6 Requirements for monitoring and reporting.
218.7 Letters of Authorization.
218.8 Renewals and modifications of Letters of Authorization.
218.9 [Reserved]

Subpart A--Taking and Importing Marine Mammals Incidental to U.S. 
Navy Construction at Naval Station Norfolk in Norfolk, Virginia


Sec.  218.1   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 marine structure maintenance, pile 
replacement, and select waterfront improvements at Naval Station 
(NAVSTA) Norfolk.
    (b) The taking of marine mammals by the Navy may be authorized in a 
Letter of Authorization (LOA) only if it occurs at NAVSTA Norfolk and 
adjacent Navy facilities.


Sec.  218.2  Effective dates.

    Regulations in this subpart are effective from June 7, 2021 to June 
7, 2026.


Sec.  218.3   Permissible methods of taking.

    Under an LOA issued pursuant to Sec. Sec.  216.106 of this chapter 
and 218.7, the Holder of the LOA (hereinafter ``Navy'')

[[Page 24357]]

may incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  218.1(b) by Level B harassment associated with 
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.  218.4   Prohibitions.

    (a) Except for the takings contemplated in Sec.  218.3 and 
authorized by a LOA issued under Sec. Sec.  216.106 of this chapter and 
218.7, it is unlawful for any person to do any of the following in 
connection with the activities described in Sec.  218.1 may:
    (1) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec.  216.106 of 
this chapter and Sec.  218.7;
    (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
    (5) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in an unmitigable adverse impact on the species or 
stock of such marine mammal for taking for subsistence uses.
    (b) [Reserved]


Sec.  218.5  Mitigation requirements.

    (a) When conducting the activities identified in Sec.  218.20(a), 
the mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 218.7 must be implemented. These mitigation 
measures shall include but are not limited to:
    (1) A copy of any issued LOA must be in the possession of the Navy, 
its designees, and work crew personnel operating under the authority of 
the issued LOA;
    (2) The Navy shall conduct briefings for construction supervisors 
and crews, the monitoring team, and Navy staff prior to the start of 
all pile driving activity, and when new personnel join the work, in 
order to explain responsibilities, communication procedures, the marine 
mammal monitoring protocol, and operational procedures;
    (3) For in-water heavy machinery work other than pile driving, if a 
marine mammal comes within 10 m, the Navy shall cease operations and 
reduce vessel speed to the minimum level required to maintain steerage 
and safe working conditions;
    (4) For all pile driving activity, the Navy shall implement a 
minimum shutdown zone of a 10 m radius around the pile. If a marine 
mammal comes within or approaches the shutdown zone, such operations 
shall cease;
    (5) For all pile driving activity, the Navy shall implement 
shutdown zones with radial distances as identified in a LOA issued 
under Sec. Sec.  216.106 of this chapter and 218.7. If a marine mammal 
comes within or approaches the shutdown zone, such operations shall 
cease;
    (6) The Navy shall deploy protected species observers (observers) 
as indicated in its Marine Mammal Monitoring Plan approved by NMFS;
    (7) A minimum of three PSOs shall be stationed at the best vantage 
points practicable to monitor for marine mammals and implement 
shutdown/delay procedures during vibratory pile driving at Pier 3, Pier 
12, and Craney Island, and at least four PSOs must be stationed at the 
best vantage points practicable during vibratory pile driving at 
Lambert's Point. For all other pile driving activities, a minimum of 
two observers shall be stationed at the best vantage points practicable 
to monitor for marine mammals and implement shutdown/delay procedures;
    (8) Monitoring shall take place from 30 minutes prior to initiation 
of pile driving activity through 30 minutes post-completion of pile 
driving activity. Pre-activity monitoring shall be conducted for 30 
minutes to ensure that the shutdown zone is clear of marine mammals, 
and pile driving may commence when observers have declared the shutdown 
zone clear of marine mammals. In the event of a delay or shutdown of 
activity resulting from marine mammals in the shutdown zone, animals 
shall be allowed to remain in the shutdown zone (i.e., must leave of 
their own volition) and their behavior shall be monitored and 
documented. If a marine mammal is observed within the shutdown zone, a 
soft-start cannot proceed until the animal has left the zone or has not 
been observed for 15 minutes. Monitoring shall occur throughout the 
time required to drive a pile. If work ceases for more than 30 minutes, 
the pre-activity monitoring of the shutdown zones must commence. A 
determination that the shutdown zone is clear must be made during a 
period of good visibility (i.e., the entire shutdown zone and 
surrounding waters must be visible to the naked eye);
    (9) If a marine mammal approaches or enters the shutdown zone, all 
pile driving activities at that location shall be halted. If pile 
driving is halted or delayed due to the presence of a marine mammal, 
the activity may not commence or resume until either the animal has 
voluntarily left and been visually confirmed beyond the shutdown zone 
or fifteen minutes have passed without re-detection of the animal;
    (10) Pile driving activity must 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 
harassment zone;
    (11) Should environmental conditions deteriorate such that marine 
mammals within the entire shutdown zone would not be visible (e.g., 
fog, heavy rain, night), the Navy shall delay pile driving and removal 
until observers are confident marine mammals within the shutdown zone 
could be detected;
    (12) Monitoring shall be conducted by trained observers, who shall 
have no other assigned tasks during monitoring periods. Trained 
observers shall be placed at the best vantage point(s) practicable to 
monitor for marine mammals and implement shutdown or delay procedures 
when applicable through communication with the equipment operator. The 
Navy shall adhere to the following additional observer qualifications:
    (i) Independent observers are required;
    (ii) At least one observer must have prior experience working as an 
observer;
    (iii) Other observers may substitute education (degree in 
biological science or related field) or training for experience;
    (iv) Where a team of three or more observers are required, one 
observer shall be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer;
    (v) Personnel who are engaged in construction activities may not 
serve as observers.
    (13) The Navy shall use soft start techniques for impact pile 
driving. Soft start for impact drivers requires the Navy and those 
persons it authorizes or funds to provide an initial set of three 
strikes at reduced energy, followed by a 30-second waiting period, then 
two subsequent reduced energy three-strike sets. Soft start shall 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 thirty 
minutes or longer.
    (b) [Reserved]

[[Page 24358]]

Sec.  218.6   Requirements for monitoring and reporting.

    (a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS 
for approval in advance of construction.
    (b) The Navy shall deploy at least three PSOs during vibratory pile 
driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs 
during vibratory pile driving at Lambert's Point. For all other pile 
driving activities, the Navy shall deploy a minimum of two PSOs.
    (c) Observers shall be trained in marine mammal identification and 
behaviors. Observers shall have no other construction-related tasks 
while conducting monitoring.
    (d) For all pile driving activities, a minimum of two observers 
shall be stationed at the active pile driving site or in reasonable 
proximity in order to monitor the shutdown zone.
    (e) The Navy shall monitor 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) to 
the extent practicable and the shutdown zones. The Navy shall monitor 
at least a portion of the Level B harassment zone on all pile driving 
days.
    (f) The Navy shall submit a draft monitoring report to NMFS within 
45 work days of the completion of required monitoring for each marine 
structure maintenance, pile replacement, and upgrades project. The 
report must detail the monitoring protocol and summarize the data 
recorded during monitoring. If no comments are received from NMFS 
within 30 days, the draft report will constitute the final report. If 
comments are received, a final report addressing NMFS comments must be 
submitted within 30 days after receipt of comments. Specifically, the 
report must include:
    (1) Dates and times (begin and end) of all marine mammal 
monitoring;
    (2) Construction activities occurring during each daily observation 
period, including how many and what type of piles were driven or 
removed and by what method (i.e., impact or vibratory);
    (3) Environmental conditions during monitoring periods (at 
beginning and end of observer 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 (if less 
than the harassment zone distance);
    (4) The number of marine mammals observed, by species, relative to 
the pile location and if pile driving or removal was occurring at time 
of sighting;
    (5) Age and sex class, if possible, of all marine mammals observed;
    (6) Observer locations during marine mammal monitoring;
    (7) Distances and bearings of each marine mammal observed to the 
pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);
    (8) Description of any marine mammal behavior patterns during 
observation, including direction of travel and estimated time spent 
within the Level A and Level B harassment zones while the source was 
active;
    (9) Number of marine mammals detected within the harassment zones, 
by species;
    (10) Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any;
    (11) Description of attempts to distinguish between the number of 
individual animals taken and the number of incidences of take, such as 
ability to track groups or individuals; and
    (12) Estimated percentage of the Level B harassment zone that was 
not visible.
    (g) In the event that personnel involved in the construction 
activities discover an injured or dead marine mammal, the Navy shall 
report the incident to the Office of Protected Resources (OPR) (301-
427-8401), NMFS and to the Greater Atlantic Region New England/Mid-
Atlantic Regional 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 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 the authorization. The Navy must not resume their activities until 
notified by NMFS.
    (1) The report must include the following information:
    (i) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (ii) Species identification (if known) or description of the 
animal(s) involved;
    (iii) Condition of the animal(s) (including carcass condition if 
the animal is dead);
    (iv) Observed behaviors of the animal(s), if alive;
    (v) If available, photographs or video footage of the animal(s); 
and
    (vi) General circumstances under which the animal was discovered.
    (2) [Reserved]


Sec.  218.7   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.  
218.8.
    (e) The LOA shall 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 shall 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 shall be published in 
the Federal Register within 30 days of a determination.


Sec.  218.8   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
218.7 for the activity identified in Sec.  218.1(a) shall be renewed or 
modified upon request by the applicant, provided that:
    (1) The proposed 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

[[Page 24359]]

notice of proposed LOA in the Federal Register, including the 
associated analysis of the change, and solicit public comment before 
issuing the LOA.
    (c) An LOA issued under Sec.  216.106 of this chapter and Sec.  
218.7 for the activity identified in Sec.  218.1(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;
    (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.  216.106 of this 
chapter and Sec.  218.7, a LOA may be modified without prior notice or 
opportunity for public comment. Notice would be published in the 
Federal Register within 30 days of the action.


Sec.  218.9  [Reserved]

[FR Doc. 2021-09512 Filed 5-5-21; 8:45 am]
BILLING CODE 3510-22-P