[Federal Register Volume 86, Number 238 (Wednesday, December 15, 2021)]
[Rules and Regulations]
[Pages 71162-71180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27133]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 211208-0254]
RIN 0648-BK69


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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

[[Page 71163]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS, upon request of the U.S. Navy (Navy), hereby issues 
regulations to govern the unintentional taking of marine mammals 
incidental to construction activities for bulkhead replacement and 
repairs at Naval Station Newport (NAVSTA Newport) over the course of 
five years (2022-2027). These regulations, which allow for the issuance 
of a Letter of Authorization (LOA) for the incidental take of marine 
mammals during the described activities and specified timeframes, 
prescribe the permissible methods of taking and other means of 
effecting the least practicable adverse impact on marine mammal species 
or stocks and their habitat, as well as requirements pertaining to the 
monitoring and reporting of such taking.

DATES: Effective from May 15, 2022, through May 14, 2027.

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

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Purpose and Need for Regulatory Action

    We received an application from the Navy requesting five-year 
regulations and authorization to take multiple species of marine 
mammals. This rule establishes a framework under the authority of the 
Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) to allow 
for the authorization of take by Level A and Level B harassment 
incidental to the Navy's construction activities, including impact and 
vibratory pile driving. Please see Background below for definitions of 
harassment.

Legal Authority for the Planned Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region for up to five years 
if, after notice and public comment, the agency makes certain findings 
and issues regulations that set forth permissible methods of taking 
pursuant to that activity and other means of effecting the ``least 
practicable adverse impact'' on the affected species or stocks and 
their habitat (see the discussion below in the Mitigation section), as 
well as monitoring and reporting requirements. Section 101(a)(5)(A) of 
the MMPA and the implementing regulations at 50 CFR part 216, subpart R 
provide the legal basis for issuing this final rule containing five-
year regulations, and for any subsequent LOAs. As directed by this 
legal authority, this final rule contains mitigation, monitoring, and 
reporting requirements.

Summary of Major Provisions Within the Final Rule

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

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made, regulations are issued, and notice is 
provided to the public.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant), and if the permissible methods of taking and 
requirements pertaining to the mitigation, monitoring and reporting of 
the takings are set forth.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an 
impact resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    In July 2020, NMFS received a request from the Navy requesting 
authorization to take small numbers of seven species of marine mammals 
incidental to construction activities including bulkhead replacement 
and repairs at NAVSTA Newport. NMFS reviewed the Navy's application, 
and the Navy provided responses addressing NMFS' questions and comments 
on February 22, 2021. The application was deemed adequate and complete 
and published for public review and comment on May 19, 2021 (86 FR 
27069). We did not receive substantive comments on that notice and 
request for comments and information. We subsequently published a 
proposed rule in the Federal Register on October 13, 2021 (86 FR 
56857). Comments received during the public comment period on the 
proposed regulations are addressed in the Comments and Responses 
section of this final rule.
    The Navy requested authorization to take a small number of seven 
species of marine mammals by Level A and B harassment. Neither the Navy 
nor NMFS expects serious injury or mortality to result from this 
activity. The regulations are valid for five years (2022-2027).

Description of Specified Activity

    The Navy plans to replace or repair several sections of 
deteriorating, unstable, hazardous, and eroding bulkhead, sheet pile, 
and revetment (approximately 2,730 total linear feet (ft)) along the 
Coddington Cove waterfront of NAVSTA Newport. Over time, the existing 
storm sewer systems and bulkheads along the Coddington Cove waterfront 
have severely degraded due to erosion from under-capacity stormwater 
system piping and aging infrastructure. This impacts the ability of the 
installation to minimize shoreline erosion and minimize safety risks 
from associated upland subsidence, while also maintaining potential 
berthing space. The Navy plans to conduct

[[Page 71164]]

necessary work, including impact and vibratory pile driving, to repair 
and replace bulkheads over five years. The specified activities may 
occur at any time during the 5-year period of validity of the 
regulations. The Navy expects pile driving to occur on approximately 
222 non-consecutive in-water pile driving days over the five-year 
duration. Pile driving activities are anticipated to be completed 
within 4 years. However, because the planned construction is dependent 
on the allocation of funding, the Navy requested that the LOA be issued 
for the entire 5-year construction period to ensure flexibility in the 
project schedule. Table 1 provides the anticipated construction 
schedule for the planned activities.

                                        Table 1--Coddington Cove Bulkhead Replacement and Repair Summary Schedule
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                                                          Revetment
           Section ID                   Bulkhead         replacement    Outfalls replaced  Dredging  area     Dredging        Construction start date
                                    replacement (lf)        (lf)                               (ft\2\)       volume (cy)
--------------------------------------------------------------------------------------------------------------------------------------------------------
S45.............................  310................             250  Yes (3)...........           8,400             650  May 15, 2022.
S366............................  90.................               0  Yes (1)...........           1,350             100  October 15, 2023.
Pier 1..........................  100................               0  No................           1,500             120  October 15, 2023.
LNG.............................  650................               0  Yes (2)...........           9,750             760  October 15, 2024.
S499/Pier 2.....................  510................              90  Yes (5)...........           9,000             700  October 15, 2025.
S50.............................  730 (repair).......               0  Yes (2)...........               0               0  October 15, 2026.
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Source: NAVFAC Mid-Atlantic 2018.

    The specific sections planned for bulkhead repair and replacement 
are described in detail in the proposed rule (86 FR 56857; October 13, 
2021) and are summarized in Table 2 below.

                                                      Table 2--Bulkhead Pile Installation Activity
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                                                                                                             Vibratory    Maximum number
                    Method of pile                                          Number of       Strikes per       driving        of piles     Maximum number
     Facility           driving          Pile type         Pile size     sheets (pairs)/       pile         minutes per    installed per      of pile
                                                                              piles                            pile             day        driving days
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S45..............  Vibratory/Impact  Z-shaped Steel    3.75 ft per pair/ 80 pair........             530              13              10              27
                                      Sheet Pile.       22.5-in each.
                   Impact..........  Steel Pipe Pile.  30-in...........  4..............             530              NA               2               4
                   Vibratory.......  Steel H-pile....  14-in...........  76.............              NA              10              12              13
S366.............  Vibratory/Impact  Z-shaped Steel    3.75 ft per pair/ 14 pair........             530              13              10               5
                                      Sheet Pile.       22.5-in each.
                   Impact..........  Steel pipe pile.  30-in diameter..  15.............             530              NA               2              15
                   Vibratory.......  Steel H-pile....  14-in...........  14.............              NA              10              12               3
S499/Pier 2......  Vibratory/Impact  Z-shaped Steel    5.25 ft per pair/ 70 pair........             530              13               8              23
                                      Sheet Pile.       31.5-in each.
                   Impact..........  Steel Pipe Pile.  42-in...........  35.............             530              NA               4              18
                   Vibratory.......  Steel H-pile....  14-in...........  79.............              NA              10              12              14
LNG..............  Vibratory/Impact  Z-shaped Steel    3.75 ft per pair/ 173 pair.......             530              13              10              58
                                      Sheet Pile.       22.5-in each.
                   Vibratory.......  Steel H-pile....  14-in...........  164............              NA              10              12              28
Pier 01..........  Vibratory/Impact  Z-shaped Steel    3.75 ft per pair/ 27 pair........             530              13              10               9
                                      Sheet Pile.       22.5-in each.
                   Vibratory.......  Steel H-pile....  14-in...........  26.............              NA              10              12               5
                  --------------------------------------------------------------------------------------------------------------------------------------
    Total sheet piles pairs/pipe and H-piles installed.................  364/413........
                  --------------------------------------------------------------------------------------------------------------------------------------
        Total days pile driving........................................  ...............  ..............  ..............  ..............             222
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Legend: NA = not applicable, ft = foot; Start date of in-water work and duration are to be determined.

    Since the proposed rule, which contains a detailed description of 
the planned construction, was published (86 FR 56857; October 13, 
2021), no changes have been made to the planned activities. Therefore, 
a detailed description is not provided here. Please refer to the 
proposed rule for further description of the specific activity.

Comments and Responses

    We published a proposed rule in the Federal Register on October 13, 
2021 (86 FR 56857). During the 30-day comment period, we received six 
comments from private citizens, with five expressing general support 
for the project and one expressing general opposition to the project.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the Navy's application summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history, of the potentially affected 
species. Additional information regarding population trends and threats 
may be found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks for which take is expected and 
planned for authorization, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. For taxonomy, we follow Committee on Taxonomy (2021).

[[Page 71165]]

PBR is defined by the MMPA as the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population (as described in NMFS' SARs). While no mortality 
is anticipated or authorized here, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al. 2021). 
All values presented in Table 3 are the most recent available at the 
time of publication and are available in the 2020 SARs (Hayes et al. 
2021) or the 2021 draft SARS, available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

                                          Table 3--Marine Mammal Species Likely To Occur Near the Project Area
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                                                                                         ESA/MMPA status;    Stock abundance  (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)     Nmin, most  recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -; N             93,233 (0.71; 54,443;         544         27
                                                                                                             2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -; N             172,974 (0.21;              1,452        390
                                                                                                             145,216; 2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -; N             95,543 (0.31; 74,043;         851        164
                                                                Fundy.                                       2016).
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -,-; N              61,336(0.08/; 57,637,       1,729        339
                                                                                                             2018).
    Gray seal.......................  Halichoerus grypus.....  Western North Atlantic.  -,-; N              27,300 (0.22, 22,785,       1,389      4,453
                                                                                                             2016) \4\.
    Harp seal.......................  Pagophilus               Western North Atlantic.  -,-; N              7,600,000                 426,000    178,573
                                       groenlandicus.                                                        (unk,7,100.000, 2019).
    Hooded seal.....................  Cystophora cristata....  Western North Atlantic.  -,-; N              593,500...............    unknown      1,680
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\1\ --Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ --NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ --These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ --This abundance value and the associated PBR value reflect the US population only. Estimated abundance for the entire Western North Atlantic stock,
  including animals in Canada, is 451,600. The annual M/SI estimate is for the entire stock.

    As indicated above, all seven species in Table 3 temporally and 
spatially co-occur with the activity to the degree that take is 
reasonably likely to occur, and we have authorized take. Several 
depleted species of whales occur seasonally in the waters off Rhode 
Island including Humpback (Megaptera novaeangliae), Fin (Balaenoptera 
physalus), Sei (Balaenoptera borealis), Sperm (Physeter macrocephalus) 
and North Atlantic Right whales (Eubaleana glacialis). These whales are 
seasonally present in New England waters; however, due to the depths of 
Narragansett Bay and near shore location of the project area, these 
listed marine mammals are unlikely to occur. Therefore, no takes were 
requested and none are anticipated or planned for authorization by NMFS 
and they are not discussed further.
    A detailed description of the species likely to be affected by the 
Navy's project, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the proposed rule (86 FR 56857; October 13, 2021). We are 
not aware of any changes in the status of these species and stocks 
since that time. Please refer to the proposed rule for these 
descriptions (86 FR 56857; October 13, 2021).

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et al. 
1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible, thus the lower 
bound from Southall et al. (2007) is retained. Marine

[[Page 71166]]

mammal hearing groups and their associated hearing ranges are provided 
in Table 4.

                  Table 4--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al. 2006; Kastelein et al. 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Seven marine mammal species (three cetacean and four phocid pinniped 
species) have the reasonable potential to co-occur with the planned 
construction activities. Please refer to Table 3. Of the cetacean 
species that may be present, two are classified as a mid-frequency 
cetacean (i.e., dolphins), and one is classified as a high-frequency 
cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the Navy's activities have the 
potential to result in behavioral harassment of marine mammals in the 
vicinity of the project area. The proposed rule (86 FR 56857; October 
13, 2021) included a discussion of the effects of anthropogenic noise 
on marine mammals and the potential effects of underwater noise from 
the Navy's construction activities on marine mammals and their habitat. 
That information and analysis applies to this final rule and is not 
repeated here; please refer to the proposed rule (86 FR 56857; October 
13, 2021).
    The Estimated Take section in this document includes a quantitative 
analysis of the number of individuals that are expected to be taken by 
this activity. The Negligible Impact Analysis and Determination section 
considers the content of this section, the Estimated Take section, and 
the Mitigation Measures section, to draw conclusions regarding the 
likely impacts of these activities on the reproductive success or 
survivorship of individuals and how those impacts on individuals are 
likely to impact marine mammal species or stocks. We also provided 
additional description of sound sources in our proposed rule (86 FR 
56857; October 13, 2021).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized, which will inform both NMFS' consideration of small numbers 
and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level A and B harassment, in the form 
of disruption of behavioral patterns and potential TTS and PTS for 
individual marine mammals resulting from exposure to pile driving and 
removal. As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and (4) the 
number of days of activities. We note that while these factors can 
contribute to a basic calculation to provide an initial prediction of 
takes, additional information that can qualitatively inform take 
estimates is also sometimes available (e.g., previous monitoring 
results or average group size). Below, we describe the factors 
considered here in more detail and present the take estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source (e.g., frequency, predictability, duty cycle), the environment 
(e.g., bathymetry), and the receiving animals (hearing, motivation, 
experience, demography, behavioral context) and can be difficult to 
predict (Southall et al. 2007, Ellison et al. 2012). Based on what the 
available science indicates and the practical need to use a threshold 
based on a factor that is both predictable and measurable for most 
activities, NMFS uses a generalized acoustic threshold based on 
received level to estimate the onset of behavioral harassment. NMFS 
predicts that marine mammals are likely to be behaviorally harassed in 
a manner we consider Level B harassment when exposed to underwater 
anthropogenic

[[Page 71167]]

noise above received levels of 120 dB re 1 [mu]Pa (rms) (reference 
pressure microPascal, root mean square) for continuous (e.g., vibratory 
pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms) for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources.
    The Navy's construction includes the use of continuous (vibratory 
pile driving) and impulsive (impact pile driving) sources, and 
therefore the level of 120 and 160 dB re 1 [mu]Pa (rms) is applicable.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise. The 
technical guidance identifies the received levels, or thresholds, above 
which individual marine mammals are predicted to experience changes in 
their hearing sensitivity for all underwater anthropogenic sound 
sources, and reflects the best available science on the potential for 
noise to affect auditory sensitivity. The technical guidance does this 
by identifying threshholds in the follow manner:
    [ssquf] Dividing sound sources into two groups (i.e., impulsive and 
non-impulsive) based on their potential to affect hearing sensitivity;
    [ssquf] Choosing metrics that best address the impacts of noise on 
hearing sensitivity, i.e., sound pressure level (peak SPL) and sound 
exposure level (SEL) (also accounting for duration of exposure); and
    [ssquf] Dividing marine mammals into hearing groups and developing 
auditory weighting functions based on the science supporting the fact 
that not all marine mammals hear and use sound in the same manner.
    These thresholds were developed by compiling and synthesizing the 
best available science and are provided in Table 5 below. The 
references, analysis, and methodology used in the development of the 
thresholds are described in NMFS 2018 Technical Guidance, which may be 
accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection.
    The Navy's planned construction includes the use of impulsive 
(impact pile driving) and non-impulsive (vibratory pile driving) 
sources.

                     Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 217 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
  has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
  National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as
  incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
  ``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
  generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
  and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
  be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
  it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels transmission loss 
coefficient.
Sound Propagation
    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * log10(R1/R2),

Where

B = transmission loss coefficient (assumed to be 15)
R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement.

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions, including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6 dB reduction in sound level for each doubling of 
distance from the source (20*log(range)). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10*log(range)). As is 
common practice in coastal waters, here we assume practical spreading 
(4.5 dB reduction in sound level for each doubling of distance). 
Practical spreading is a compromise that is often used under conditions 
where water depth increases as the receiver moves away from the 
shoreline, resulting in an expected propagation environment that would 
lie between spherical and cylindrical spreading loss conditions. 
Practical spreading was used to determine sound propagation for this 
project.

Sound Source Levels

    The intensity of pile driving sounds is greatly influenced by 
factors such as the type of piles, hammers, and the physical 
environment in which the activity takes

[[Page 71168]]

place. There are sound source level (SSL) measurements available for 
certain pile types and sizes from the similar environments from other 
Navy pile driving projects that were evaluated and used as proxy sound 
source levels to determine reasonable sound source levels likely to 
result from the pile driving and removal activities (Table 6). Some of 
the proxy source levels are expected to be conservative, as the values 
are from larger pile sizes.

           Table 6--Underwater Noise Sound Source Levels Modeled for Impact and Vibratory Pile Driving
----------------------------------------------------------------------------------------------------------------
                                                                   Sound pressure levels (SPL) or sound exposure
                                                                           level (SEL) at 10 m distance
            Pile size, type                      Method          -----------------------------------------------
                                                                     Peak SPL         RMS SPL           SEL
----------------------------------------------------------------------------------------------------------------
42-in Diameter Steel Pipe \1\.........  Impact..................             211             196             181
30-in Diameter Steel Pipe \2\.........  Impact..................             211             196             181
14-in Steel H-pile \3\................  Vibratory...............              NA             158             158
31.5-in Z-shaped Steel Sheet \4\......  Impact..................             211             196             181
31.5-in Z-shaped Steel Sheet \5\......  Vibratory...............              NA             163             163
22.5-in Z-shaped Steel Sheet \3\......  Impact..................             205             190             180
22.5-in Z-shaped Steel Sheet \5\......  Vibratory...............              NA             163             163
----------------------------------------------------------------------------------------------------------------
Legend: All sound pressure levels (SPLs) are unattenuated; dB = decibels; rms = root mean square, SEL = sound
  exposure level; NA = Not applicable; NR = Not reported.
Notes:
\1\ Navy pers comm. 2021.
\2\ Navy San Diego Bay Acoustic Compendium (NAVFAC SW 2020).
\3\ Caltrans 2015.
\4\ A proxy value for 31-in sheet piles could not be found for impact driving so the proxy for a 30-in steel
  pipe pile has been used from NAVFAC SW (2020). This value was also used for Z-shaped steel sheets for the
  Navy's Dry Dock 1 Modification and Expansion, Portsmouth Naval Shipyard, Kittery, Maine 2021 IHA (86 FR 14598;
  March 17, 2021).
\5\ For vibratory driving of 31-in sheet piles and 22.5-in Z-shaped steel sheet piles, 163 dB SPL was used based
  on measurements conducted by the Naval Facilities Engineering Command Mid-Atlantic (NAVFAC Mid-Atlantic) in
  the Technical Memorandum Nearshore Marine Mammal Surveys, Portsmouth Naval Shipyard (2018).

    For 42-in steel piles, a SSL of 181 dB SEL was used for impact 
driving and is similar to SSL of 180 dB SEL for 36-in piles in CALTRANS 
(2015). There are no SSL values for 42-in piles in CALTRANS, the 
nearest values are for 36-in and 60-in steel pipe piles. For 30-in 
steel pipe piles, an SSL of 181 dB SEL was used for impact pile driving 
as a proxy from the Navy's San Diego Bay Acoustic Compendium (NAVFAC SW 
2020) (the median value from the greatest sound levels recorded for 30-
in steel piles). The SSL used for 30-in steel piles during impact pile 
driving is also more conservative than the SSL of 177 dB SEL for 30-in 
steel piles in CALTRANS (2015). For 31.5-in sheet piles, an SSL of 181 
dB SEL was used for impact pile driving as a proxy from 30-in steel 
pipe piles (NAVFAC SW 2020), which is also slightly more conservative 
than an SSL of 180 dB SEL for 24-in piles in CALTRANS (2015) (no larger 
sheet piles are described in CALTRANS 2015). During vibratory pile 
driving of 31.5-in sheet piles, the Navy used an SSL of 163 dB SPL, 
which is also more conservative than an SSL of 160 dB SPL for 24-in 
sheet piles in CALTRANS (2015) (no large sheet piles are described in 
CALTRANS 2015). For 22.5-in Z-shaped steel sheet piles, an SSL of 180 
dB SEL was used for impact pile driving and is also equivalent to 24-in 
sheet piles in CALTRANS (2015). During vibratory pile driving, an SSL 
of 163 dB SPL is a proxy from NAVFAC Mid-Atlantic (2018) and is also 
more conservative than 24-in sheet piles in CALTRANS (2015) where the 
SSL is 160 dB SPL for 24-in sheet piles (no larger sheet piles are 
described in CALTRANS (2015). For 14-in steel H-piles, an SSL of 158 dB 
SPL was used from CALTRANS (2015).
Level A Harassment
    In conjunction with the NMFS Technical Guidance (2018), in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, NMFS developed a User Spreadsheet that includes 
tools to help predict a simple isopleth that can be used in conjunction 
with marine mammal density or occurrence to help predict takes. We note 
that, because of some of the assumptions included in the methods used 
for these tools, we anticipate that isopleths produced are typically 
going to be overestimates of some degree, which may result in some 
degree of overestimation of Level A harassment take. However, these 
tools offer the best way to predict appropriate isopleths when more 
sophisticated 3D modeling methods are not available, and NMFS continues 
to develop ways to quantitatively refine these tools and will 
qualitatively address the output where appropriate. For stationary 
sources (such as from impact and vibratory pile driving), the NMFS User 
Spreadsheet (2020) predicts the closest distance at which, if a marine 
mammal remained at that distance the whole duration of the activity, it 
would not incur PTS. Inputs used in the User Spreadsheet (Tables 7 and 
8), and the resulting isopleths are reported below (Table 9).

  Table 7--NMFS Technical Guidance (2020) User Spreadsheet Input To Calculate PTS Isopleths for Vibratory Pile
                                                     Driving
        [User spreadsheet input--vibratory pile driving spreadsheet Tab A.1 vibratory pile driving used]
----------------------------------------------------------------------------------------------------------------
                                                                                    22.5-in Z-      31.5-in Z-
                                                                  14-in steel H-   shaped sheet    shaped sheet
                                                                       pile            piles           piles
----------------------------------------------------------------------------------------------------------------
Source Level (RMS SPL)..........................................             158             163             163
Weighting Factor Adjustment (kHz)...............................             2.5             2.5             2.5
Number of piles within 24-hr period.............................              12              10               8

[[Page 71169]]

 
Duration to drive a single pile (min)...........................              10              13              13
Propagation (xLogR).............................................              15              15              15
Distance of source level measurement (m)........................              10              10              10
----------------------------------------------------------------------------------------------------------------


    Table 8--NMFS Technical Guidance (2020) User Spreadsheet Input to Calculate PTS Isopleths for Impact Pile
                                                     Driving
           [User spreadsheet input--Impact pile driving spreadsheet Tab E.1 impact pile driving used]
----------------------------------------------------------------------------------------------------------------
                                                     22-in  Z-      31.5-in  Z-
                                                   shaped piles    shaped piles     30-in pile      42-in pile
----------------------------------------------------------------------------------------------------------------
Source Level (Single Strike/shot SEL)...........             180             181             181             181
Weighting Factor Adjustment (kHz)...............               2               2               2               2
Number of strikes per pile......................             530             530             530             530
Number of piles per day.........................              10               8               2               4
Propagation (xLogR).............................              15              15              15              15
Distance of source level measurement (m)........              10              10              10              10
----------------------------------------------------------------------------------------------------------------


                     Table 9--NMFS Technical Guidance (2020) User Spreadsheet Outputs To Calculate Level A Harassment PTS Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        User spreadsheet output                                                         PTS isopleths (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                        Level A harassment
                                                                        --------------------------------------------------------------------------------
                 Activity                   Sound source level at 10 m    Low-frequency   Mid-frequency   High-frequency
                                                                            cetaceans       cetaceans       cetaceans         Phocid          Otariid
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Vibratory Pile Driving/Removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-in H-pile.............................  158 SPL.....................             6.8             0.6             10.1             4.2             0.3
22.5-in Z-shaped sheet piles.............  163 SPL.....................            15.5             1.4             23.0             9.4             0.7
31.5-in Z-shaped sheet piles.............  163 SPL.....................            13.4             1.2             19.8             8.1             0.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Impact Pile Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
22.5-in Z-shaped sheet piles.............  180 SEL/190 SPL.............         1,915.4            68.1          2,281.5         1,025.0            74.6
31.5-in Z-shaped sheet piles.............  181 SEL/196 SPL.............         1,942.5            68.4          2,292.4         1,029.9            75.0
30-in pile...............................  181 SEL/196 SPL.............           763.7            27.2            909.7           408.7            29.8
42-in pile...............................  181 SEL/196 SPL.............           1,212            43.1          1,444.1           648.8            47.2
--------------------------------------------------------------------------------------------------------------------------------------------------------

Level B Harassment
    Utilizing the practical spreading model, NMFS determined underwater 
noise will fall below the behavioral effects threshold of 120 dB rms 
for marine mammals at the distances shown in Table 10 for vibratory 
pile driving. With these radial distances, the largest Level B 
harassment zone calculated was 7,356 m for sheet piles. However, this 
distance would be truncated due to the presence of intersecting land 
masses. For calculating the Level B harassment zone for impact driving, 
the practical spreading loss model was used with a behavioral threshold 
of 160 dB rms. The maximum radial distance of the Level B harassment 
zone for impact piling equaled 2,512 m for 30-in piles, 42-in piles and 
31.5-in sheet piles. Table 10 below provides all Level B harassment 
radial distances (m) and ensonified areas (km\2\) during the Navy's 
planned activities.

                    Table 10--Distances to Relevant Behavioral Isopleths and Ensonified Areas
----------------------------------------------------------------------------------------------------------------
                                                           Received level at 10    Level B harassment zone (m/
          Year (section)                   Activity                  m                       km\2\) *
----------------------------------------------------------------------------------------------------------------
                                                               Vibratory Pile Driving
                                   -----------------------------------------------------------------------------

[[Page 71170]]

 
Year 1 (S45)......................  14-in H-piles........  158 SPL.............  3,415 m/5.6 km\2\.
Year 2 (S366); Year 2 (Pier 1)....  14-in H-piles........  158 SPL.............  3,415 m/5.8 km\2\.
Year 3 (LNG)......................  14-in H-piles........  158 SPL.............  3,415 m/5.8 km\2\.
Year 4 (S499/Pier 2)..............  14-in H-piles........  158 SPL.............  3,415 m/5.7 km\2\.
Year 1 (S45)......................  22.5-in Z-shaped       163 SPL.............  7,356 m/7.9 km\2\.
                                     sheet piles.
Year 2 (S366); Year 2 (Pier 1)....  22.5-in Z-shaped       163 SPL.............  7,356 m/8.3 km\2\.
                                     sheet piles.
Year 3 (LNG)......................  22.5-in Z-shaped       163 SPL.............  7,356 m/7.5 km\2\.
                                     sheet piles.
Year 4 (S499/Pier 2)..............  22.5-in Z-shaped       163 SPL.............  7,356 m/7.5 km\2\.
                                     sheet piles.
Year 4 (S499/Pier 2)..............  31.5-in Z-shaped       163 SPL.............  7,356 m/9.5.km\2\.
                                     sheet piles.
                                   -----------------------------------------------------------------------------
                                                                 Impact Pile Driving
                                   -----------------------------------------------------------------------------
Year 1 (S45)......................  22.5-in Z-shaped       180 SEL/190 SPL.....  1,000 m/1.1 km\2\.
                                     sheet piles.
Year 2 (S366); Year 2 (Pier 1)....  22.5-in Z-shaped       180 SEL/190 SPL.....  1,000 m/1.3 km\2\.
                                     sheet piles.
Year 3 (LNG)......................  22.5-in Z-shaped       180 SEL/190 SPL.....  1,000 m/0.7 km\2\.
                                     sheet piles.
Year 4 (S499/Pier 2)..............  31.5-in Z-shaped       181 SEL/196 SPL.....  2,512 m/3.8 km\2\.
                                     sheet piles.
Year 1 (S45)......................  30-in piles..........  181 SEL/196 SPL.....  2,512 m/3.8 km\2\.
Year 2 (S366).....................  30-in piles..........  181 SEL/196 SPL.....  2,512 m/4.0 km\2\.
Year 4 (S499/Pier 2)..............  42-in piles..........  181 SEL/196 SPL.....  2,512 m/3.8 km\2\.
----------------------------------------------------------------------------------------------------------------
* Note: Distances to the Level B harassment zone may vary slightly of the same pile size, due to the section of
  work being conducted and how the produced sound would be directed (see Figures 6-1 through 6-4 of the Navy's
  application).

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Potential exposures to impact pile and vibratory pile 
driving noise for each acoustic threshold were estimated using marine 
mammal density estimates (N) from the Navy Marine Species Density 
Database NMSDD (Navy 2017) for which data of monthly densities of 
species were evaluated in terms of minimum, maximum, and average annual 
densities within Narragansett Bay and multiplied by the zone of 
influence (ZOI) and the maximum days of pile driving (take estimate = N 
x ZOI x days of pile driving). The pile type, size, and installation 
method that produce the largest ZOI were used to estimate exposure of 
marine mammals to noise impacts. We describe how the information 
provided above is brought together to produce a quantitative take 
estimate in the species sections below.
Atlantic White-Sided dolphins
    Atlantic white-sided dolphins occur seasonally, occurring primarily 
along the continental shelf with occasional unconfirmed opportunistic 
sightings in Narragansett Bay in fall and winter. The most recent 
observation of a pod of dolphins in Narragansett Bay was in October 
2007 (NUWC Division, 2011). Construction activity could occur at any 
time of year and would be short-term and intermittent. Therefore, the 
average species density was determined to be appropriate for estimating 
takes of Atlantic white-sided dolphin. Based on density data for 
Narragansett Bay (Navy 2017), the average density of Atlantic white-
sided dolphin was determined to be 0.003/km\2\. This density was used 
to estimate abundance of animals that could be present in the area for 
exposure. Using this information, 1 take was calculated for Years 1, 3, 
and 4 and 0 takes in Year 2 (Table 11). However, the annual take by 
Level B harassment for Atlantic white-sided dolphins has been increased 
to the average group size (16) (NAVSEA NUWC 2017) for Years 1, 3, and 
4, because the calculated annual take is below the average group size. 
Therefore, the Navy requested, and NMFS authorized, 16 takes annually 
in Years 1, 3, and 4 (0 in Year 2) for a total of 48 takes by Level B 
harassment of Atlantic white-sided dolphin (Table 11). No takes by 
Level A harassment of Atlantic white-sided dolphin are anticipated to 
occur or are authorized. Because this species' regular occurrence is in 
much deeper waters than the extent of the ZOI (Hayes et al., 2019), 
expected takes of this species are extremely low.

        Table 11--Estimated Take for Atlantic White-Sided Dolphin
------------------------------------------------------------------------
                                                 Calculated   Authorized
               Construction year                  level B      level B
                                                 harassment   harassment
------------------------------------------------------------------------
Year 1 (S45)..................................            1           16
Year 2 (S366 and Pier 01).....................            0            0
Year 3 (LNG)..................................            1           16
Year 4 (S499/Pier 2)..........................            1           16
                                               -------------------------
  Total.......................................            3           48
------------------------------------------------------------------------

Common Dolphin
    Common dolphins are the most likely dolphin species to be spotted 
in Narragansett Bay, and usually occur in late fall or winter (Kenney, 
2013). The most recent sighting of a common dolphin recorded in 
Narragansett Bay was in October of 2016 (Hayes et al., 2019). 
Construction activity could occur at any time of year and would be 
short-term and intermittent. Based on density data for Narragansett Bay 
(NMSDD, Navy, 2017), the average density of common dolphin was 
determined to be 0.011/km\2\. Using this information, 3 takes by Level 
B harassment were calculated for Years 1 and 4, 2 takes for Year 2 and 
6 takes for Year 3 (Table 12). Because the calculated annual take is 
below the average group size, the annual take by Level B harassment for 
common dolphin has been increased to the average group size (28) 
(NAVSEA NUWC 2017). Therefore, the Navy requested, and NMFS authorized, 
28 takes annually (with the exception of Year 2, for which it was 
doubled to 56 takes as a conservative approach to account for more 
vibratory and impact

[[Page 71171]]

pile driving activities that occur during that year in two sections 
(S366 and Pier 1)) for a total of 140 takes by Level B harassment of 
common dolphin (Table 12). No takes by Level A harassment of common 
dolphin are anticipated to occur or are authorized. Because this 
species' regular occurrence is in much deeper waters than the extent of 
the ZOI (Hayes et al., 2019), takes of this species are expected to be 
extremely low.

               Table 12--Estimated Take for Common Dolphin
------------------------------------------------------------------------
                                                 Calculated   Authorized
               Construction year                  level B      level B
                                                 harassment   harassment
------------------------------------------------------------------------
Year 1 (S45)..................................            3           28
Year 2 (S366 and Pier 01).....................            2           56
Year 3 (LNG)..................................            6           28
Year 4 (S499/Pier 2)..........................            3           28
                                               -------------------------
  Total.......................................           14          140
------------------------------------------------------------------------

Harbor Porpoise
    Harbor porpoise are not common to Narragansett Bay but may occur, 
especially in winter and spring months (Kinney 2013). Harbor porpoise 
is the most stranded cetacean in Rhode Island, with a strong seasonal 
occurrence in the spring. Construction activity could occur at any time 
of year and would be short-term and intermittent. Therefore, the 
average species density was determined to be appropriate for estimating 
takes of harbor porpoise. Based on density data for Narragansett Bay 
(NMSDD, Navy 2017), the average density of harbor porpoise was 
determined to be 0.012/km\2\. Using this information, 4 takes by Level 
B harassment were calculated for Years 1 and 4, 2 takes for Year 2, and 
7 takes for Year 3 (Table 13). Because the calculated take in Year 2 
was less than the group size, the annual take by Level B harassment for 
harbor porpoise has been increased to the average group size (3) and 
multiplied by two for 6 takes (NAVSEA NUWC 2017) as a conservative 
approach to account for more vibratory and impact pile driving 
activities that occur during that year in two sections (S366 and Pier 
1)). Therefore, the Navy requested, and NMFS authorized, 4 takes in 
Years 1 and 4, 6 takes in Year 2, and 7 takes in Year 3, and a total of 
21 takes by Level B harassment of harbor porpoise (Table 13). Level A 
harassment could occur during years 1, 3 and 4 (Table 13).

                                  Table 13--Estimated Take for Harbor Porpoise
----------------------------------------------------------------------------------------------------------------
                                                                    Authorized      Calculated      Authorized
                        Construction year                             level A         level B         level B
                                                                    harassment      harassment      harassment
----------------------------------------------------------------------------------------------------------------
Year 1 (S45)....................................................               1               4               4
Year 2 (S366 and Pier 01).......................................               0               2               6
Year 3 (LNG)....................................................               2               7               7
Year 4 (S499/Pier 2)............................................               1               4               4
                                                                 -----------------------------------------------
  Total.........................................................               4              17              21
----------------------------------------------------------------------------------------------------------------

Harbor Seal
    Harbor seals are the most common seal in Narragansett Bay, which is 
a well-known winter feeding ground for the species (Moll et al., 2017). 
Seals are commonly observed from late September through April (Moll et. 
al., 2017; DeAngelis, 2020). Of the 22 known haulouts within 
Narragansett Bay, The Sisters is the nearest haulout to the project 
area (0.9 mi). Harbor seals are rarely observed at The Sisters haulout 
in the early fall (September-October) but consistent numbers are 
regularly observed in mid-November (0-10 animals). These numbers 
gradually increase with peak numbers in the upper 40s occurring in 
March, typically at low tide (DeAngelis, 2020). The NMSDD (Navy, 2017a) 
models harbor and gray seals as a guild due to the difficulty in 
distinguishing these species at sea. Harbor seal is expected to be the 
most common pinniped in Narragansett Bay with year-round occurrence 
(Kenney and Vigness-Raposa, 2010). Therefore, the maximum species 
density for the harbor-gray seal guild was determined to be appropriate 
for estimating takes of harbor seal. Based on density data for 
Narragansett Bay (Navy, 2017a), the maximum density of seals was 
determined to be 0.623/km\2\. This density value is for all seals 
(harbor and gray seals as a guild); therefore, this density value 
results in some degree of overestimation when applied to harbor seals 
only. The Navy requested and NMFS authorized a high of 25 takes by 
Level A harassment and 353 takes by Level B harassment during Year 3, 
and a low of 13 takes by Level A harassment and 138 takes by Level B 
harassment during Year 2 (Table 14).

                Table 14--Estimated Take for Harbor Seal
------------------------------------------------------------------------
                                                             Authorized/
                                                 Authorized   calculated
               Construction year                  level A      level B
                                                 harassment   harassment
------------------------------------------------------------------------
Year 1 (S45)..................................           15          188
Year 2 (S366 and Pier 01).....................           13          138
Year 3 (LNG)..................................           25          353
Year 4 (S499/Pier 2)..........................           25          221
                                               -------------------------
    Total.....................................           78          900
------------------------------------------------------------------------

Gray Seal
    Based on stranding records, gray seals are seasonally present in 
Rhode Island with the largest populations occurring from February 
through June with a sharp peak in March and April. The NMSDD (Navy, 
2017a) provides combined densities for harbor seal and gray seal (as 
discussed above). Gray seals are the second most likely seal to be 
observed in Rhode Island waters, next to harbor seals, and more of an 
occasional visitor (Kenney, 2020); therefore, the average species 
density for the harbor-gray seal guild was determined to be appropriate 
for determining takes of gray seal. Based on density data for 
Narragansett Bay (Navy, 2017a), the average density of seals was 
determined to be 0.131/km\2\. This

[[Page 71172]]

density value is for all seals (harbor and gray seals as a guild); 
therefore, it results in some degree of overestimation when applied to 
gray seals only. Calculated takes by Level A harassment and Level B 
harassment may occur each construction year with up to 5 takes by Level 
A harassment and 74 takes by Level B harassment during Year 3. Fewer 
annual takes were calculated for Year 2 and 3 by Level A harassment and 
28 takes by Level B (Table 15). Because the calculated annual take is 
below the average group size, the annual take by Level B harassment for 
gray seal has been increased to the average group size (50 gray seals) 
(NAVSEA NUWC 2017) and conservatively doubled for Year 1, 2, and 4, 
during which years calculated takes were less than group size. 
Therefore, the Navy requested, and NMFS authorized, 100 takes of gray 
seals in Years 1, 2 and 4, and 74 takes in Year 3, and a total of 374 
takes by Level B harassment of gray seals. A total of 17 takes of gray 
seals by Level A harassment is also authorized.

                                     Table 15--Estimated Take for Gray Seal
----------------------------------------------------------------------------------------------------------------
                                                                    Authorized      Calculated      Authorized
                        Construction year                             level A         level B         level B
                                                                    harassment      harassment      harassment
----------------------------------------------------------------------------------------------------------------
Year 1 (S45)....................................................               3              40             100
Year 2 (S366 and Pier 01).......................................               3              28             100
Year 3 (LNG)....................................................               5              74              74
Year 4 (S499/Pier 2)............................................               6              41             100
                                                                 -----------------------------------------------
    Total.......................................................              17             183             374
----------------------------------------------------------------------------------------------------------------

Harp Seal
    Harp seals may be present in the project vicinity January through 
May. In general, harp seals are much rarer than the harbor seal and 
gray seal in Narragansett Bay and are rarely observed in the bay 
(Kenney, 2015). Therefore, the minimum species density was determined 
to be appropriate for determining takes of harp seal. Based on density 
data for Narragansett Bay obtained from the NMSDD (Navy 2017), the 
minimum density of harp seal was determined to be 0.050/km\2\. The Navy 
requested and NMFS authorized that 2 takes by Level A harassment could 
occur in Year 3, and 1 take by Level A harassment in Years 1, 2, and 4, 
for a total of 5 takes (Table 16). Calculated takes by Level B 
harassment range from 11 to 29 and total 72 takes over the project 
(Table 16).

                 Table 16--Estimated Take for Harp Seal
------------------------------------------------------------------------
                                                             Authorized/
                                                 Authorized   calculated
               Construction year                  level A      level B
                                                 harassment   harassment
------------------------------------------------------------------------
Year 1 (S45)..................................            1           16
Year 2 (S366 and Pier 1)......................            1           11
Year 3 (LNG)..................................            2           29
Year 4 (S499/Pier 2)..........................            2           18
                                               -------------------------
  Total.......................................            6           74
------------------------------------------------------------------------

Hooded Seal
    Hooded seals may be present in the project vicinity from January 
through May, although their exact seasonal densities are unknown. In 
general, hooded seals are much rarer than the harbor seal and gray seal 
in Narragansett Bay and are rarely observed in the Bay (Kenney, 2005). 
Based on density data for Narragansett Bay obtained from the NMSDD, the 
minimum density of hooded seal was determined to be 0.001/km\2\. Hooded 
seals have the potential to occur but are considered the least likely 
seal to be present in Narragansett Bay. No Level A (PTS onset) or Level 
B (behavioral) takes are anticipated during any construction year. 
However, in order to guard against unauthorized take, the Navy is 
requesting, and NMFS authorized, 1 Level B (behavioral) take of hooded 
seal per month of construction when this species may occur (Jan through 
May) for each construction year for a total of 20 takes by Level B 
harassment (Table 17). No take by Level A harassment is anticipated to 
occur or is authorized.

                Table 17--Estimated Take for Hooded Seal
------------------------------------------------------------------------
                                                              Authorized
                     Construction year                         Level B
                                                              harassment
------------------------------------------------------------------------
Year 1 (S45)...............................................            5
Year 2 (S366 and Pier 1)...................................            5
Year 3 (LNG)...............................................            5
Year 4 (S499/Pier 2).......................................            5
                                                            ------------
  Total....................................................           20
------------------------------------------------------------------------

    Table 18 below summarizes the authorized take for all the species 
described above as a percentage of stock abundance.

                           Table 18--Take Estimates as a Percentage of Stock Abundance
----------------------------------------------------------------------------------------------------------------
                                Stock (NEST)       Level A         Level B
           Species                               harassment      harassment             Percent of stock
----------------------------------------------------------------------------------------------------------------
Atlantic White-sided Dolphin  Western North                 0              48  Less than 1 percent.
                               Atlantic
                               (93,233).
Common Dolphin..............  Western North                 0             140  Less than 1 percent.
                               Atlantic
                               (172,974).
Harbor Porpoise.............  Gulf of Maine/                4              21  Less than 1 percent.
                               Bay of Fundy
                               (95,543).
Harbor Seal.................  Western North                78             900  Less than 2 percent.
                               Atlantic
                               (61,336).
Gray Seal...................  Western North                17             374  Less than 1 percent.
                               Atlantic
                               (451,600).
Harp Seal...................  Western North                 6              74  Less than 1 percent.
                               Atlantic (7.6
                               million).
Hooded Seal.................  Western North                 0              20  Less than 1 percent.
                               Atlantic
                               (593,500).
----------------------------------------------------------------------------------------------------------------


[[Page 71173]]

Mitigation

    Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the 
permissible methods of taking pursuant to the activity, and other means 
of effecting the least practicable adverse impact on the species or 
stock and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
the species or stock for taking for certain subsistence uses (latter 
not applicable for this action). NMFS regulations require applicants 
for incidental take authorizations to include information about the 
availability and feasibility (economic and technological) of equipment, 
methods, and manner of conducting the activity or other means of 
effecting the least practicable adverse impact upon the affected 
species or stocks and their habitat (50 CFR 216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, we carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The following mitigation measures are planned for the Navy's in-
water construction activities.

General

    The Navy will follow mitigation procedures as described below. In 
general, if poor environmental conditions restrict full visibility of 
the shutdown zone, pile driving activities would be delayed.

Training

    The Navy will ensure that construction supervisors and crews, the 
monitoring team, and relevant Navy staff are trained and prior to the 
start of construction activity subject to this rule, so that 
responsibilities, communication procedures, monitoring protocols, and 
operational procedures are clearly understood. New personnel joining 
during the project will be trained prior to commencing work.

Avoiding Direct Physical Interaction

    The Navy will avoid direct physical interaction with marine mammals 
during construction activity. If a marine mammal comes within 10 m of 
such activity, operations will cease and vessels will reduce speed to 
the minimum level required to maintain steerage and safe working 
conditions, as necessary to avoid direct physical interaction.

Shutdown Zones

    The Navy will establish shutdown zones for all pile driving 
activities. The purpose of a shutdown zone is generally to define an 
area within which shutdown of the activity would occur upon sighting of 
a marine mammal (or in anticipation of an animal entering the defined 
area). Shutdown zones will vary based on the activity type and marine 
mammal hearing group (Table 19). For those activities with larger Level 
A (PTS onset) harassment zones, the shutdown zone would be limited to 
150 m from the point of noise generation to ensure adequate monitoring 
for each bulkhead section and the remaining area would be considered 
part of the ``disturbance zone.'' The disturbance zone is the Level B 
harassment zone and, where present, the Level A harassment zone (PTS 
onset) beyond 150 m from the point of noise generation (see Figures 6-1 
through 6-4 of the Navy's application). For activities where the Level 
A (PTS onset) harassment zones are smaller, the disturbance zone would 
include the entire region of influence (ROI) and is the full extent of 
potential underwater noise impact (Level A and Level B calculated 
harassment zones). Work will be allowed to proceed without cessation 
while marine mammals are in the disturbance zone and marine mammal 
behavior within the disturbance zone will be monitored and documented.

              Table 19--Pile Driving Shutdown Zone and Disturbance Zones During Project Activities
----------------------------------------------------------------------------------------------------------------
                                                                  Shut down zone  Shut down zone
           Pile type              Installation     Pile diameter   for cetaceans   for pinnipeds    Disturbance
                                     method            (in)             (m)             (m)          zone (m)
----------------------------------------------------------------------------------------------------------------
Steel pipe....................  Impact..........              30             150             150           2,500
                                Impact..........              42             150              50           2,500
Steel H.......................  Vibratory.......              14              10              10             ROI
Z-Shaped Steel Sheet..........  Vibratory.......            22.5              30              10             ROI
                                Impact..........            22.5             150             150           2,500
                                Vibratory.......            31.5              20              10             ROI
                                Impact..........            31.5             150             150          2,500
----------------------------------------------------------------------------------------------------------------
* ROI = region of influence and is the full extent of potential underwater noise impact (Level A and Level B
  calculated harassment zones).

Soft Start

    The Navy will use soft start techniques when impact pile driving. 
Soft start requires contractors to provide an initial set of three 
strikes from the hammer at reduced energy, followed by a 30-second 
waiting period. Then two subsequent reduced-energy strike sets would 
occur. A soft start will be implemented at the start of each day's 
impact pile driving and at any time following cessation of impact pile 
driving for a period of 30 minutes or longer. Soft start is not 
required during vibratory pile driving activities.
    Based on our evaluation of the applicant's planned measures, NMFS 
has determined that the mitigation measures provide the means of 
effecting the least practicable adverse impact on the affected species 
or stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

[[Page 71174]]

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as for ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
    [ssquf] Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    [ssquf] Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
    [ssquf] Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    [ssquf] How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    [ssquf] Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
    [ssquf] Mitigation and monitoring effectiveness.
    The Navy will submit a Marine Mammal Monitoring Plan to NMFS for 
approval in advance of the start of construction.

Monitoring Zones

    The Navy will conduct monitoring to include the area within the 
Level B harassment zones (areas where SPLs are equal to or exceed the 
160 dB rms threshold for impact driving and the 120 dB rms threshold 
during vibratory pile driving) (see Disturbance Zones in Table 19). 
These disturbance zones provide utility for monitoring conducted for 
mitigation purposes (i.e., shutdown zone monitoring) by establishing 
monitoring protocols for areas adjacent to the shutdown zones. 
Monitoring of the disturbance zones enables observers to be aware of 
and communicate the presence of marine mammals in the project area, but 
outside the shutdown zone, and thus prepare for potential shutdowns of 
activity.

Visual Monitoring

    Monitoring must take place from 30 minutes (min) prior to 
initiation of pile driving activity (i.e., pre-start clearance 
monitoring) through 30 min post-completion of pile driving activity. If 
a marine mammal is observed entering or within the shutdown zones, pile 
driving will be delayed or halted. If pile driving is delayed or halted 
due to the presence of a marine mammal, the activity may not commence 
or resume until either the animal has voluntarily exited and been 
visually confirmed beyond the shutdown zone or 15 min have passed 
without re-detection of the animal. Pile driving activity will be 
halted upon observation of either a species for which incidental take 
is not authorized or a species for which incidental take has been 
authorized but the authorized number of takes has been met, entering or 
within the disturbance zone.

PSO Monitoring Requirements and Locations

    PSOs will be responsible for monitoring, the shutdown zones, the 
disturbance zones and the pre-clearance zones, as well as effectively 
documenting Level A and B harassment take. As described in more detail 
in the Reporting section below, they will also (1) document the 
frequency at which marine mammals are present in the project area, (2) 
document behavior and group composition, (3) record all construction 
activities, and (4) document observed reactions (changes in behavior or 
movement) of marine mammals during each sighting. The PSOs will monitor 
for marine mammals during all in-water pile activities associated with 
the project. The Navy will monitor the project area to the extent 
possible based on the required number of PSOs, required monitoring 
locations, and environmental conditions. Visual monitoring will be 
conducted by, at a minimum, by two PSOs. It is assumed that two to 
three PSOs would be sufficient to monitor the respective ROIs given the 
abundance of suitable vantage points. Any activity that would result in 
threshold exceedance at or more than 1,000 m would require a minimum of 
three PSOs to effectively monitor the entire ROI. However, additional 
monitors may be added if warranted by site conditions and/or the level 
of marine mammal activity in the area. Trained PSOs will be placed at 
the best vantage point(s) practicable such as on nearby breakwaters, 
Gould Island, Coddington Point, or Taylor Point (see Figure 11-1 of the 
Navy's application) to monitor for marine mammals and implement 
shutdown/delay procedures when applicable. The PSOs must record all 
observations of marine mammals, regardless of distance from the pile 
being driven.
    In addition, PSOs will work in shifts lasting no longer than 4 hrs 
with at least a 1-hr break between shifts and will not perform duties 
as a PSO for more than 12 hrs in a 24[hyphen]hr period (to reduce PSO 
fatigue).
    Monitoring of pile driving will be conducted by qualified, NMFS-
approved PSOs. The Navy shall adhere to the following conditions when 
selecting PSOs:
    [ssquf] PSOs must be independent (i.e., not construction personnel) 
and have no other assigned tasks during monitoring periods;
    [ssquf] At least one PSO must have prior experience performing the 
duties of a PSO during construction activities pursuant to a NMFS-
issued incidental take authorization;
    [ssquf] Other PSOs may substitute other relevant experience, 
education (degree in biological science or related field), or training;
    [ssquf] Where a team of three PSOs are required, a lead observer or 
monitoring coordinator shall be designated. The lead observer must have 
prior experience performing the duties of a PSO during construction 
activity pursuant to a NMFS-issued incidental take authorization; and
    [ssquf] PSOs must be approved by NMFS prior to beginning any 
activity subject to this rule.
    The Navy will ensure that the PSOs have the following additional 
qualifications:
    [ssquf] Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;

[[Page 71175]]

    [ssquf] Experience and ability to conduct field observations and 
collect data according to assigned protocols;
    [ssquf] Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    [ssquf] Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    [ssquf] Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
    [ssquf] Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

Acoustic Monitoring

    The Navy will conduct a sound source verification (SSV) study for 
all pile types and will follow accepted methodological standards to 
achieve their objectives. The Navy will submit an acoustic monitoring 
plan to NMFS for approval prior to the start of construction.

Reporting

    The Navy will submit a draft report to NMFS within 90 workdays of 
the completion of required monitoring for each portion of the project 
as well as a comprehensive summary report at the end of the project. 
The report will detail the monitoring protocol and summarize the data 
recorded during monitoring. Final annual reports (each portion of the 
project and comprehensive) must be prepared and submitted within 30 
days following resolution of any NMFS comments on the draft report. If 
no comments are received from NMFS within 30 days of receipt of the 
draft report, the report shall be considered final. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments. All draft and final marine 
mammal monitoring reports must be submitted to 
[email protected] and [email protected]. The reports 
must contain the following informational elements, at minimum, (and be 
included in the Marine Mammal Monitoring Plan), including:
    [ssquf] Dates and times (begin and end) of all marine mammal 
monitoring;
    [ssquf] Construction activities occurring during each daily 
observation period, including:
    [cir] How many and what type of piles were driven and by what 
method (e.g., impact or vibratory); and
    [cir] Total duration of driving time for each pile (vibratory 
driving) and number of strikes for each pile (impact driving);
    [ssquf] PSO locations during marine mammal monitoring;
    [ssquf] Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance;
    [ssquf] Upon observation of a marine mammal, the following 
information:
    [cir] PSO who sighted the animal and PSO location and activity at 
time of sighting;
    [cir] Time of sighting;
    [cir] Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
    [cir] Distance and bearing of each marine mammal observed to the 
pile being driven for each sighting (if pile driving was occurring at 
time of sighting);
    [cir] Estimated number of animals (minimum/maximum/best);
    [cir] Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.;
    [cir] Animal's closest point of approach and estimated time spent 
within the harassment zone; and
    [cir] Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses to the activity (e.g., no response 
or changes in behavioral state such as ceasing feeding, changing 
direction, flushing, or breaching);
    [ssquf] Detailed information about implementation of any mitigation 
(e.g., shutdowns and delays), a description of specific actions that 
ensued, and resulting changes in behavior of the animal, if any; and
    [ssquf] All PSO datasheets and/or raw sightings data.

Reporting of Injured or Dead Marine Mammals

    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the Navy will report the 
incident to NMFS Office of Protected Resources (OPR) 
([email protected]), NMFS (301-427-8401) and to the 
Greater Atlantic Region New England/Mid-Atlantic Stranding Coordinator 
(866-755-6622) as soon as feasible. If the death or injury was clearly 
caused by the specified activity, the Navy must immediately cease the 
specified activities until NMFS OPR is able to review the circumstances 
of the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of this rule. The Navy 
will not resume their activities until notified by NMFS. The report 
must include the following information:
    [ssquf] Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    [ssquf] Species identification (if known) or description of the 
animal(s) involved;
    [ssquf] Condition of the animal(s) (including carcass condition if 
the animal is dead);
    [ssquf] Observed behaviors of the animal(s), if alive;
    [ssquf] If available, photographs or video footage of the 
animal(s); and
    [ssquf] General circumstances under which the animal was 
discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
taken through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are

[[Page 71176]]

incorporated into this analysis via their impacts on the environmental 
baseline (e.g., as reflected in the regulatory status of the species, 
population size and growth rate where known, ongoing sources of human-
caused mortality, or ambient noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all of the species listed in Table 3, given that many of the 
anticipated effects of this project on different marine mammal stocks 
are expected to be relatively similar in nature. Where there are 
meaningful differences between species or stocks in anticipated 
individual responses to activities, impacts of expected take on the 
population due to differences in population status, or impacts on 
habitat, they are described independently in the analysis below.
    Pile driving activities associated with the project, as outlined 
previously, have the potential to disturb or displace marine mammals. 
Specifically, the specified activities may result in take, in the form 
of Level A and Level B harassment from underwater sounds generated by 
pile driving. Potential takes could occur if marine mammals are present 
in zones ensonified above the thresholds for Level A and Level B 
harassment, identified above, while activities are underway.
    No serious injury or mortality would be expected even in the 
absence of the planned mitigation measures. During all impact driving, 
implementation of soft start procedures and monitoring of established 
shutdown zones will be required, significantly reducing the possibility 
of injury. Given sufficient notice through use of soft start (for 
impact driving), marine mammals are expected to move away from an 
irritating sound source prior to it becoming potentially injurious. In 
addition, PSOs will be stationed within the action area whenever pile 
driving activities are underway. Depending on the activity, the Navy 
will employ the use of at least two and up to three PSOs to ensure all 
monitoring and shutdown zones are properly observed. For Atlantic 
white-sided dolphins, common dolphins and hooded seals, no Level A 
harassment is anticipated. Atlantic white-sided dolphin and common 
dolphin are both species in which regular occurrence is in much deeper 
waters than the project area, and, given the small Level A harassment 
zone sizes for mid-frequency cetaceans, we do not anticipate take by 
Level A harassment. For hooded seals which are a rare species in 
Narragansett Bay, with the absence of any major rookeries and only one 
pinniped haulout (The Sisters) within the project area, we do not 
anticipate any take by Level A harassment.
    The Navy's planned pile driving activities and associated impacts 
will occur within a limited portion of the confluence of the 
Narraganset Bay area. Exposures to elevated sound levels produced 
during pile driving activities may cause behavioral disturbance of some 
individuals, but they are expected to be mild and temporary. However, 
as described previously, the mitigation and monitoring measures are 
expected to further reduce the likelihood of injury as well as reduce 
behavioral disturbances.
    Effects on individuals that are taken by Level B harassment, as 
enumerated in the Estimated Take section, on the basis of reports in 
the literature as well as monitoring from other similar activities, 
will likely be limited to reactions such as increased swimming speeds, 
increased surfacing time, or decreased foraging (if such activity were 
occurring) (e.g., Thorson and Reyff 2006). Most likely, individual 
animals will simply move away from the sound source and be temporarily 
displaced from the areas of pile driving, although even this reaction 
has been observed primarily only in association with impact pile 
driving. The pile driving activities analyzed here are similar to, or 
less impactful than, numerous other construction activities conducted 
along both Atlantic and Pacific coasts, which have taken place with no 
known long-term adverse consequences from behavioral harassment. These 
reactions and behavioral changes are expected to subside quickly when 
the exposures cease. Level B harassment will be minimized through use 
of mitigation measures described herein, and, if sound produced by 
project activities is sufficiently disturbing, animals are likely to 
simply avoid the area while the activity is occurring, particularly as 
the project is located on a waterfront with vessel traffic from both 
Navy and non-Navy activities.
    The project is also not expected to have significant adverse 
effects on any marine mammal habitat. The project activities will not 
modify existing marine mammal habitat since the project will occur 
within the same footprint as existing marine infrastructure. Impacts to 
the immediate substrate during installation and removal of piles are 
anticipated, but these would be limited to minor, temporary suspension 
of sediments, which could impact water quality and visibility for a 
short amount of time but which would not be expected to have any 
effects on individual marine mammals. The nearshore and intertidal 
habitat where the project will occur is an area of consistent vessel 
traffic from Navy and non-Navy vessels, and some local individuals 
would likely be somewhat habituated to the level of activity in the 
area, further reducing the likelihood of more severe impacts. The 
closest pinniped haulout, The Sisters, is used by harbor seals and is 
less than a mile from the project area; however, for the reasons 
described immediately above (including the nature of expected responses 
and the duration of the project), impacts to reproduction or survival 
of individuals is not anticipated, much less effects on the species or 
stock. There are no other biologically important areas for marine 
mammals near the project area.
    In addition, impacts to marine mammal prey species are expected to 
be minor and temporary. Overall, the area impacted by the project is 
very small compared to the available habitat in Narragansett Bay. The 
most likely impact to prey will be temporary behavioral avoidance of 
the immediate area. During pile driving activities, it is expected that 
some fish and marine mammals would temporarily leave the area of 
disturbance, thus impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range. But, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
    [ssquf] No mortality is anticipated or authorized;
    [ssquf] No Level A harassment is anticipated or authorized for 
Atlantic white-sided dolphins, Short-beaked common dolphins, and hooded 
seals;
    [ssquf] Anticipated incidents of Level B harassment consist of, at 
worst, temporary modifications in behavior;
    [ssquf] The required mitigation measures (i.e., shutdown zones) are 
expected to be effective in reducing the effects of the specified 
activity;
    [ssquf] Minimal impacts to marine mammal habitat/prey are expected;
    [ssquf] The action area is located within an active marine 
waterfront area, and
    [ssquf] There are no known biologically important areas in the 
vicinity of the project, with the exception of one harbor seal haulout 
(The Sisters)--however, as described above, exposure

[[Page 71177]]

to the work conducted in the vicinity of the haulout is not expected to 
impact the reproduction or survival of any individual seals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat and, taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers, so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. When the predicted number of individuals to 
be taken is fewer than one third of the species or stock abundance, the 
take is considered to be of small numbers. Additionally, other 
qualitative factors may be considered in the analysis, such as the 
temporal or spatial scale of the activities.
    Take of seven of the marine mammal stocks authorized will comprise 
at most approximately 2 percent or less of the stock abundance (Table 
18). The number of animals authorized to be taken from these stocks 
would be considered small relative to the relevant stock's abundances 
even if each estimated take occurred to a new individual, which is an 
unlikely scenario. Based on the analysis contained herein of the 
planned activity (including the mitigation and monitoring measures) and 
the anticipated take of marine mammals, NMFS finds that small numbers 
of marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
Navy construction activities would contain an adaptive management 
component. The reporting requirements associated with this rule are 
designed to provide NMFS with monitoring data from completed projects 
to allow consideration of whether any changes are appropriate. The use 
of adaptive management allows NMFS to consider new information from 
different sources to determine (with input from the Navy regarding 
practicability) on an annual or biennial basis if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

Endangered Species Act

    Section 7(a)(2) of the ESA (16 U.S.C. 1531 et seq.) requires that 
each Federal agency ensure that any action it authorizes, funds, or 
carries out is not likely to jeopardize the continued existence of any 
endangered or threatened species or result in the destruction or 
adverse modification of designated critical habitat. To ensure ESA 
compliance for the issuance of incidental take authorizations, NMFS 
consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that this action qualifies to be categorically excluded from further 
NEPA review.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
final rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration at the proposed rule stage that this action will not 
have a significant economic impact on a substantial number of small 
entities. The Navy is the sole entity that would be subject to the 
requirements in these regulations, and the Navy is not a small 
governmental jurisdiction, small organization, or small business, as 
defined by the RFA. No comments were received regarding this 
certification. As a result, a regulatory flexibility analysis is not 
required, and none has been prepared.
    This final rule does not contain a collection-of-information 
requirement subject to the provisions of the Paperwork Reduction Act 
(PRA) because the applicant is a federal agency.

List of Subjects in 50 CFR Part 217

    Administrative practice and procedure, Alaska, Endangered and 
threatened species, Exports, Fish, Imports, Indians, Labeling, Marine 
mammals, Oil and gas exploration, Penalties, Reporting and 
recordkeeping requirements, Seafood, Transportation, Wildlife.

    Dated: December 10, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended 
as follows:

[[Page 71178]]

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

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


0
2. Effective from May 15, 2022, through May 14, 2027, add subpart R to 
read as follows:

Subpart R--Taking and Importing Marine Mammals Incidental to U.S. 
Navy Bulkhead Replacement/Repairs at Naval Station Newport in 
Newport, Rhode Island

Sec.
217.70 Specified activity and geographical region.
217.71 Effective dates.
217.72 Permissible methods of taking.
217.73 Prohibitions.
217.74 Mitigation requirements.
217.75 Requirements for monitoring and reporting.
217.76 Letters of Authorization.
217.77 Renewals and modifications of Letters of Authorization.
217.78-217.79 [Reserved]

Subpart R--Taking and Importing Marine Mammals Incidental to U.S. 
Navy Bulkhead Replacement/Repairs at Naval Station Newport in 
Newport, Rhode Island


Sec.  217.70   Specified activity and geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy) 
and those persons it authorizes or funds to conduct activities on its 
behalf for the taking of marine mammals that occurs in the areas 
outlined in paragraph (b) of this section and that occurs incidental to 
construction activities including for bulkhead replacement and repairs 
at Naval Station (NAVSTA) Newport, Rhode Island.
    (b) The taking of marine mammals by the Navy may be authorized in a 
Letter of Authorization (LOA) only if it occurs at NAVSTA Newport, 
Rhode Island.


Sec.  217.71   Effective dates.

    Regulations in this subpart are effective from May 15, 2022, 
through May 14, 2027.


Sec.  217.72   Permissible methods of taking.

    Under an LOA issued pursuant to Sec. Sec.  216.106 of this chapter 
and 217.76, the Holder of the LOA (hereinafter ``Navy'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.70(b) by harassment associated with 
bulkhead replacement and repairs construction activities, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the applicable LOA.


Sec.  217.73   Prohibitions.

    (a) Except for the takings contemplated in Sec.  217.72 and 
authorized by a LOA issued under Sec. Sec.  216.106 of this chapter and 
217.76, it is unlawful for any person to do any of the following in 
connection with the activities described in Sec.  217.70:
    (1) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
of this chapter and 217.76;
    (2) Take any marine mammal not specified in such LOA;
    (3) Take any marine mammal specified in such LOA in any manner 
other than as specified;
    (4) Take a marine mammal specified in such LOA if NMFS determines 
such taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (b) [Reserved]


Sec.  217.74   Mitigation requirements.

    (a) When conducting the activities identified in Sec.  217.71(a), 
the mitigation measures contained in any LOA issued under Sec. Sec.  
216.106 of this chapter and 217.76 must be implemented. These 
mitigation measures must include but are not limited to:
    (1) A copy of any issued LOA must be in the possession of the Navy, 
supervisory construction personnel, lead protected species observers 
(PSOs), and any other relevant designees of the Holder operating under 
the authority of this LOA at all times that activities subject to this 
LOA are being conducted.
    (2) The Navy will follow mitigation procedures as described in this 
section. Should environmental conditions deteriorate such that marine 
mammals within the entire shutdown zone would not be visible (e.g., 
fog, heavy rain, night), the Holder shall delay pile driving and 
removal until observers are confident marine mammals within the 
shutdown zone could be detected.
    (3) The Navy will ensure that construction supervisors and crews, 
the monitoring team, and relevant Navy staff are trained prior to the 
start of all activities subject to this rule, so that responsibilities, 
communication procedures, monitoring protocols, and operational 
procedures are clearly understood. New personnel joining during the 
project will be trained prior to commencing work.
    (4) The Navy, construction supervisors and crews, PSOs, and 
relevant Navy staff will avoid direct physical interaction with marine 
mammals during construction activity. If a marine mammal comes within 
10 m of such activity, operations will cease and vessels will reduce 
speed to the minimum level required to maintain steerage and safe 
working conditions, as necessary, to avoid direct physical interaction.
    (5) The Navy will employ PSOs and establish monitoring locations as 
described in this rule and the Marine Mammal Monitoring Plan. The Navy 
will monitor the project area to the maximum extent possible based on 
the required number of PSOs, required monitoring locations, and 
environmental conditions.
    (6) Monitoring will take place from 30 minutes prior to initiation 
of pile driving activity (i.e., pre-start clearance monitoring) through 
30 minutes post-completion of pile driving activity.
    (7) If a marine mammal is observed entering or within the shutdown 
zones indicated in this rule, pile driving activity must be delayed or 
halted. If pile driving is delayed or halted due to the presence of a 
marine mammal, the activity may not commence or resume until either the 
animal has voluntarily exited and been visually confirmed beyond the 
shutdown zone or 15 minutes have passed without re-detection of the 
animal.
    (8) The Navy will establish shutdown zones for all pile driving 
activities. Shutdown zones are limited to 150 m from the point of noise 
generation. Any remaining area within estimated Level A harassment 
zones shall be considered part of the ``disturbance zone,'' i.e., the 
Level B harassment zone and, where present, the Level A harassment zone 
(PTS onset) beyond 150 m from the point of noise generation. For 
activities where the estimated Level A (PTS onset) harassment zones are 
smaller than 150 m, the disturbance zone shall include the entire 
region of influence (ROI), i.e., estimated Level A and Level B 
harassment zones). Work may proceed without cessation while marine 
mammals are in the disturbance zone and marine mammal behavior within 
the disturbance zone will be monitored and documented.
    (9) The Navy will conduct monitoring to include the area within the 
Level B harassment zones (areas where SPLs are equal to or exceed the 
160 dB rms threshold for impact driving and the 120 dB rms threshold 
during vibratory pile driving (disturbance zone).
    (10) Pre-start clearance monitoring will be conducted during 
periods of visibility sufficient for the lead PSO to determine that the 
shutdown zones are clear of marine mammals. Pile driving

[[Page 71179]]

may commence following 30 minutes of observation when the determination 
is made that the shutdown zones are clear of marine mammals.
    (11) If pile driving is delayed or halted due to the presence of a 
marine mammal, the activity may not commence or resume until either the 
animal has voluntarily exited and been visually confirmed beyond the 
shutdown zone indicated or 15 minutes have passed without re-detection 
of the animal.
    (12) The Navy will use soft start techniques when impact pile 
driving. Soft start requires contractors to provide an initial set of 
three strikes from the hammer at reduced energy, followed by a 30-
second waiting period. Then two subsequent reduced-energy strike sets 
would occur. A soft start will be implemented at the start of each 
day's impact pile driving and at any time following cessation of impact 
pile driving for a period of 30 minutes or longer. Soft start is not 
required during vibratory pile driving activities.
    (13) Pile driving activity must be halted upon observation of 
either a species entering or within the harassment zone, for which 
incidental take is not authorized, or a species for which incidental 
take has been authorized but the authorized number of takes has been 
met.
    (b) [Reserved]


Sec.  217.75   Requirements for monitoring and reporting.

    (a) Marine Mammal monitoring must be conducted in accordance with 
the conditions in this section and the Marine Mammal Monitoring Plan. 
The Navy must submit a Marine Mammal Monitoring Plan to NMFS for 
approval in advance of construction.
    (b) Monitoring must be conducted by qualified, NMFS-approved PSOs, 
in accordance with the following conditions:
    (1) PSOs must be independent (i.e., not construction personnel) and 
have no other assigned tasks during monitoring periods.
    (2) At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization.
    (3) Other PSOs may substitute other relevant experience, education 
(degree in biological science or related field), or training for prior 
experience performing the duties of a PSO during construction activity 
pursuant to a NMFS-issued incidental take authorization.
    (4) Where a team of three or more PSOs is required, a lead observer 
or monitoring coordinator must be designated. The lead observer must 
have prior experience performing the duties of a PSO during 
construction activity pursuant to a NMFS-issued incidental take 
authorization.
    (5) PSOs must be approved by NMFS prior to beginning any activity 
subject to this LOA.
    (c) The Navy will establish the following monitoring locations. For 
all pile driving activities, a minimum of one PSO will be assigned to 
each active pile driving location to monitor the shutdown zones. 
Trained PSOs will be placed at the best vantage point(s) practicable 
such as on nearby breakwaters, Gould Island, Coddington Point, or 
Taylor Point. Visual monitoring will be conducted by, at a minimum, by 
two PSOs. It is assumed that two to three PSOs would be sufficient to 
monitor the respective ROIs given the abundance of suitable vantage 
points. Any activity that would result in threshold exceedance at or 
more than 1,000 m would require a minimum of three PSOs to effectively 
monitor the entire ROI. However, additional monitors may be added if 
warranted by site conditions and/or the level of marine mammal activity 
in the area.
    (d) PSOs must record all observations of marine mammals, regardless 
of distance from the pile being driven, as well as the additional data 
indicated in the reporting requirements.
    (e) Acoustic monitoring will be conducted in accordance with the 
Acoustic Monitoring Plan. The Navy will conduct hydroacoustic data 
collection (sound source verification and propagation loss) in 
accordance with a hydroacoustic monitoring plan that must be approved 
by NMFS in advance of construction.
    (f) The shutdown/disturbances zones may be modified with NMFS' 
approval following NMFS' acceptance of an acoustic monitoring report.
    (g) The Navy will submit a draft monitoring report to NMFS within 
90 calendar days of the completion of required monitoring for each 
portion of the project as well as a comprehensive summary report at the 
end of the project. The report will detail the monitoring protocol and 
summarize the data recorded during monitoring. Final annual reports 
(each portion of the project and comprehensive) must be prepared and 
submitted within 30 days following resolution of any NMFS comments on 
the draft report. If no comments are received from NMFS within 30 days 
of receipt of the draft report, the report must be considered final. If 
comments are received, a final report addressing NMFS comments must be 
submitted within 30 days after receipt of comments.
    (h) All draft and final monitoring reports must be submitted to 
[email protected] and [email protected].
    (i) The marine mammal report must contain the informational 
elements described ed in the Marine Mammal Monitoring Plan and, at 
minimum, include:
    (1) Dates and times (begin and end) of all marine mammal 
monitoring;
    (2) Construction activities occurring during each daily observation 
period, including: the number and types of piles were driven or removed 
and by what method (i.e., impact or vibratory) and the total duration 
of driving time for each pile (vibratory driving) and number of strikes 
for each pile (impact driving); and
    (3) PSO locations during marine mammal monitoring;
    (4) Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance;
    (5) Upon observation of a marine mammal, the following information:
    (i) Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting.
    (ii) Time of sighting; and
    (iii) Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
    (iv) Distances and location of each marine mammal observed relative 
to the pile being driven or removed;
    (v) Estimated number of animals (min/max/best);
    (vi) Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition etc.);
    (vii) Animal's closest point of approach and estimated time spent 
within the harassment zone; and
    (viii) Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing, or breaching);
    (6) Number of marine mammals detected within the harassment zones, 
by species;
    (7) Detailed information about any implementation of any mitigation

[[Page 71180]]

triggered (e.g., shutdowns and delays), a description of specific 
actions that ensued, and resulting of the behavior of the animal, if 
any;
    (8) The Navy will submit all PSO datasheets and/or raw sightings 
data with the draft reports.
    (j) The Navy must report the hydroacoustic data collected as 
required by a LOA issued under Sec. Sec.  216.106 of this chapter and 
217.76 and as described in the Acoustic Monitoring Plan, and at a 
minimum, must include:
    (1) Hydrophone equipment and methods: recording device, sampling 
rate, distance (m) from the pile where recordings were made; depth of 
water and recording device(s);
    (2) Type and size of pile being driven, substrate type, method of 
driving during recordings (e.g., hammer model and energy), and total 
pile driving duration;
    (i) Whether a sound attenuation device is used and, if so, a 
detailed description of the device used and the duration of its use per 
pile;
    (ii) For impact pile driving (per pile): Number of strikes and 
strike rate; depth of substrate to penetrate; pulse duration and mean, 
median, and maximum sound levels (dB re: 1 [micro]Pa): Root mean square 
sound pressure level (SPLrms); cumulative sound exposure level 
(SELcum), peak sound pressure level (SPLpeak), and single-strike sound 
exposure level (SELs-s);
    (iii) For vibratory driving/removal (per pile): Duration of driving 
per pile; mean, median, and maximum sound levels (dB re: 1 [micro]Pa): 
Root mean square sound pressure level (SPLrms), cumulative sound 
exposure level (SELcum) (and timeframe over which the sound is 
averaged); and
    (iv) One-third octave band spectrum and power spectral density 
plot.
    (k) In the event that personnel involved in the construction 
activities discover an injured or dead marine mammal, the Navy must 
report the incident to NMFS Office of Protected Resources (OPR), NMFS 
([email protected] and [email protected]) Monitoring) 
and to the Greater Atlantic Region New England/Mid-Atlantic Stranding 
Coordinator, as soon as feasible. If the death or injury was clearly 
caused by the specified activity, the Navy must immediately cease the 
specified activities until NMFS OPR is able to review the circumstances 
of the incident and determine what, if any, additional measures are 
appropriate to ensure compliance with the terms of this rule and the 
LOA issued under Sec. Sec.  216.106 of this chapter and 217.76. The 
Navy will not resume their activities until notified by NMFS. The 
report must include the following information:
    (1) Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    (2) Species identification (if known) or description of the 
animal(s) involved;
    (3) Condition of the animal(s) (including carcass condition if the 
animal is dead);
    (4) Observed behaviors of the animal(s), if alive;
    (5) If available, photographs or video footage of the animal(s); 
and
    (6) General circumstances under which the animal was discovered.


Sec.  217.76   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the Navy must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) If an LOA expires prior to the expiration date of these 
regulations, the Navy may apply for and obtain a renewal of the LOA.
    (d) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the Navy must 
apply for and obtain a modification of the LOA as described in Sec.  
217.77.
    (e) The LOA will set forth the following information:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and
    (3) Requirements for monitoring and reporting.
    (f) Issuance of the LOA will be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (g) Notice of issuance or denial of an LOA will be published in the 
Federal Register within 30 days of a determination.


Sec.  217.77   Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under Sec. Sec.  216.106 of this chapter and 
217.76 for the activity identified in Sec.  217.70(a) may be renewed or 
modified upon request by the applicant, provided that:
    (1) The specified activity and mitigation, monitoring, and 
reporting measures, as well as the anticipated impacts, are the same as 
those described and analyzed for these regulations; and
    (2) NMFS determines that the mitigation, monitoring, and reporting 
measures required by the previous LOA under these regulations were 
implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting that do not change the findings made for the regulations or 
result in no more than a minor change in the total estimated number of 
takes (or distribution by species or years), NMFS may publish a notice 
of proposed LOA in the Federal Register, including the associated 
analysis of the change, and solicit public comment before issuing the 
LOA.
    (c) A LOA issued under Sec. Sec.  216.106 of this chapter and 
217.76 for the activity identified in Sec.  217.70(a) may be modified 
by NMFS under the following circumstances:
    (1) NMFS may modify (including augment) the existing mitigation, 
monitoring, or reporting measures (after consulting with Navy regarding 
the practicability of the modifications) if doing so creates a 
reasonable likelihood of more effectively accomplishing the goals of 
the mitigation and monitoring set forth in the preamble for these 
regulations;
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in a LOA:
    (A) Results from Navy's monitoring from previous years;
    (B) Results from other marine mammal and/or sound research or 
studies; and
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs; and
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment;
    (2) If NMFS determines that an emergency exists that poses a 
significant risk to the well-being of the species or stocks of marine 
mammals specified in a LOA issued pursuant to Sec. Sec.  216.106 of 
this chapter and 217.76, a LOA may be modified without prior notice or 
opportunity for public comment. Notification would be published in the 
Federal Register within 30 days of the action.


Sec. Sec.  217.78-217.79  [Reserved]

[FR Doc. 2021-27133 Filed 12-14-21; 8:45 am]
BILLING CODE 3510-22-P