[Federal Register Volume 87, Number 169 (Thursday, September 1, 2022)]
[Notices]
[Pages 53731-53732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18877]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC259]


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to U.S. Navy Construction at Portsmouth Naval Shipyard, 
Kittery, Maine

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; receipt of application for Letter of Authorization; 
request for comments and information.

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SUMMARY: NMFS has received a request from the U.S. Navy (Navy) for 
authorization to take small numbers of marine mammals incidental to 
construction activities associated with the multifunctional expansion 
and modification of Dry Dock 1 at Portsmouth Naval Shipyard in Kittery, 
Maine over the course of 5 years from the date of issuance. Pursuant to 
regulations implementing the Marine Mammal Protection Act (MMPA), NMFS 
is announcing receipt of the Navy's request for the development and 
implementation of regulations governing the incidental taking of marine 
mammals. NMFS invites the public to provide information, suggestions, 
and comments on the Navy's application and request.

DATES: Comments and information must be received no later than October 
3, 2022.

ADDRESSES: Comments on the applications should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service. Physical comments should 
be sent to 1315 East-West Highway, Silver Spring, MD 20910 and 
electronic comments should be sent to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all

[[Page 53732]]

attachments, must not exceed a 25-megabyte file size. Attachments to 
electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/node/23111 without change. All personal 
identifying information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Reny Tyson Moore, Office of Protected 
Resources, NMFS, (301) 427-8401. An electronic copy of the Navy's 
application may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, 
please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce (as delegated to NMFS) to allow, upon 
request, the incidental, but not intentional, taking of small numbers 
of marine mammals by U.S. citizens who engage in a specified activity 
(other than commercial fishing) within a specified geographical region 
if certain findings are made and either regulations are issued or, if 
the taking is limited to harassment, a notice of a proposed 
authorization is provided to the public for review.
    An incidental take authorization shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such 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.
    The MMPA states that the term ``take'' means to harass, hunt, 
capture, kill or attempt to harass, hunt, capture, or kill any marine 
mammal.
    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

    On May 9, 2022, NMFS received an application from the Navy 
requesting authorization for take of marine mammals incidental to 
construction activities related to the multifunctional expansion and 
modification of Dry Dock 1 at Portsmouth Naval Shipyard in Kittery, 
Maine. We provided comments on the application and the Navy submitted 
revised versions and responses to our comments on July 5, 2022, August 
15, 2022, August 19, 2022, and August 25, 2022. We determined the 
application was adequate and complete on August 25, 2022. The requested 
regulations would be valid for 5 years, from April 1, 2023 through 
March 21, 2028. The Navy plans to conduct necessary work, including 
impact and vibratory pile driving, hydraulic rock hammering, rotary 
drilling, and mono and cluster down-the-hole drilling (DTH), to expand 
and modify Dry Dock 1. The proposed action may incidentally expose 
marine mammals occurring in the vicinity to elevated levels of 
underwater sound, thereby resulting in incidental take, by Level A and 
Level B harassment. Therefore, the Navy requests authorization to 
incidentally take marine mammals.

Specified Activities

    Multifunctional Expansion of Dry Dock 1 (P-381) is one of three 
projects that support the overall expansion and modification of Dry 
Dock 1, located in the western extent of the Shipyard. The previous two 
projects, construction of a super flood basin (P-310) and extension of 
portal crane rail and utilities (P-1074) are currently under 
construction. In-water work associated with these projects was 
completed under separate IHAs issued by NMFS. The projects have been 
phased to support Navy mission schedules. P-381 will be constructed 
within the same footprint of the super flood basin over an approximated 
7-year period, of which 5-years of in-water work would occur. An IHA 
was issued by NMFS for the first year of P-381 construction activities 
between April 1, 2022 and March 31, 2023 (87 FR 19866, April 6, 2022). 
This Letters or Authorization (LOA) request is for the remaining 4 
years of P-381 in-water construction activities occurring from April 1, 
2023 through March 31, 2028 as well as for additional in-water 
construction activities associated with the removal of emergency repair 
components of the super flood basin that will occur during the LOA 
period. Although the in-water construction described in this LOA 
application is anticipated to be completed by December 2026, the LOA 
application includes the full 5-year term through March 31, 2028 in the 
event of unanticipated schedule delays. Construction activities will 
include the excavation and/or installation of 1,118 holes, 180 shafts, 
and 520 sheet piles via impact and vibratory pile driving, hydraulic 
rock hammering, rotary drilling, and mono and cluster DTH. The 
construction activities are expected to require approximately 2,037 
days over the 5-year period; however, overlapping activities are 
estimated to reduce the number of construction days to within 4 years. 
Harbor porpoises (Phocoena phocoena), harbor seals (Phoca vitulina 
vitulina), gray seals (Halichoerus grypus), hooded seals (Crystphora 
cristata), and harp seals (Pagophilus groenlandicus) have been observed 
in the proposed action area.

Information Solicited

    Interested persons may submit information, suggestions, and 
comments concerning the Navy's request (see ADDRESSES). NMFS will 
consider all information, suggestions, and comments related to the 
request during the development of proposed regulations governing the 
incidental taking of marine mammals by the Navy, if appropriate.

    Dated: August 29, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-18877 Filed 8-31-22; 8:45 am]
BILLING CODE 3510-22-P