[Federal Register Volume 87, Number 236 (Friday, December 9, 2022)]
[Notices]
[Pages 75600-75607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26830]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC556]


Takes of Marine Mammals Incidental To Specified Activities; 
Taking Marine Mammals Incidental to the Replacement of Pier 3 at Naval 
Station Norfolk in Norfolk, Virginia

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

ACTION: Notice; proposed modification of an Incidental Harassment 
Authorization (IHA); request for comments.

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SUMMARY: NMFS is proposing to modify an incidental harassment 
authorization (IHA) that was issued to the United States Navy (Navy) on 
March 15, 2022 in association with construction activities related to 
the replacement of Pier 3 at Naval Station Norfolk in Norfolk, 
Virginia. As a result of necessary changes to the Navy's construction 
plan, NMFS is proposing to modify the Navy's IHA to increase authorized 
take by Level B harassment for bottlenose dolphins and take by Level A 
harassment for harbor seals. NMFS is also proposing to include 
appropriate, additional shutdown mitigation provisions for all species 
in the modified IHA. The monitoring and reporting measures remain the 
same as prescribed in the initial IHA. NMFS will also consider public 
comments on the requested modification prior to making any final 
decision and agency responses will be summarized in the final notice of 
our decision.

DATES: Comments and information must be received no later than December 
27, 2022.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email 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, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act 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: Kim Corcoran, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed above.

SUPPLEMENTARY INFORMATION: 

[[Page 75601]]

Background

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action remains consistent with categories of activities 
identified in Categorical Exclusion B4 (IHAs with no anticipated 
serious injury or mortality) of the Companion Manual for NOAA 
Administrative Order 216-6A, which do not individually or cumulatively 
have the potential for significant impacts on the quality of the human 
environment and for which we have not identified any extraordinary 
circumstances that would preclude this categorical exclusion. 
Accordingly, NMFS has preliminarily determined that the issuance of the 
proposed modified IHA continues to qualify to be categorically excluded 
from further NEPA review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

History of Request

    On March 15, 2022, NMFS issued an incidental harassment 
authorization (IHA) to the Navy to incidentally harass, by Level A and 
Level B harassment only, marine mammals during construction activities 
associated with the Pier 3 Replacement Project at Naval Station 
(NAVFAC) Norfolk in Norfolk, Virginia (87 FR 15945; March 21, 2022). 
Species authorized for take included humpback whale (Megaptera 
novaeangliae), bottlenose dolphin (Tursiops truncatus), harbor porpoise 
(Phocoena phocoena), harbor seal (Phoca vitulina), and gray seal 
(Halichoerus grypus). The effective dates of this IHA are April 1, 2022 
through March 31, 2023.
    On July 29, 2022, NMFS received a request from the Navy for a 
modification to the Pier 3 Replacement project IHA due to a change in 
the construction contractor's plan, to include concurrent pile driving 
and drilling activities. During consultation for the initial IHA, the 
Navy did not anticipate the need for concurrent activities in the first 
year of work. This IHA covers 1 year of a larger project for which the 
Navy has submitted a request for a Letter of Authorization (LOA) (87 FR 
60998; October 7, 2022) for additional work occurring from April 1, 
2023 through March 31, 2028. However, the construction contractor has 
since determined that in order to meet the scope requirements and dates 
to complete the pier, concurrent activities would be necessary within 
the first year of construction. Therefore, the Navy is requesting, and 
NMFS is proposing, to modify the 2022 IHA to include concurrent pile 
driving and drilling activities. This change may increase both Level A 
and Level B harassment isopleths and result in an increased estimate of 
exposures by Level B harassment for bottlenose dolphin and by Level A 
harassment for harbor seal. NMFS has determined that the changes also 
necessitate revised shutdown mitigation provisions for concurrent pile 
driving scenarios for all species. The monitoring and reporting 
measures remain the same as prescribed in the initial IHA, and no 
additional take is requested or proposed for other species.

Description of the Proposed Activity and Anticipated Impacts

    The modified IHA would include the same construction activities 
(i.e., impact pile driving, vibratory pile driving and removal, and 
drilling) in the same locations that were described in the initial IHA. 
The monitoring and reporting measures remain the same as prescribed in 
the initial IHA, while revisions to the required mitigation measures 
have been proposed. NMFS refers the reader to relevant documents 
related to issuance of the initial IHA, including the Navy's 
application, the notice of proposed IHA and request for comments (87 FR 
3976; January 26, 2022), and notice of issued IHA (87 FR 15945; March 
21, 2022) (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-replacement-pier-3-naval-station-norfolk-norfolk-virginia) for more detailed description of the project 
activities.

Detailed Description of the Action

    A detailed description of the construction activities is found in 
the aforementioned documents associated with issuance of the initial 
IHA. The location, time of year, and nature of the activities, 
including the types of piles and methods of installation and removal 
are identical to those described in the previous documents. However, as 
noted in the History of Request section, the Navy anticipates that 
concurrent pile driving would be necessary to complete year one 
activities on time. Potential concurrent activity scenarios for year 
one can be found in Table 1. For individual pile driving activities, 
the Level A and Level B harassment zones remain unchanged (see initial 
IHA (87 FR 3976; January 26, 2022)), however for concurrent pile 
driving scenarios harassment zones increased. Therefore, the larger 
harassment zone for each scenario was used to calculate exposure 
estimates as well as to determine appropriate shutdown zones.

[[Page 75602]]



                                Table 1--Potential Concurrent Activity Scenarios
----------------------------------------------------------------------------------------------------------------
                                                                  Total
        Scenario locations           Concurrent scenarios       equipment         Equipment       Number of days
                                                                quantity          (quantity)
----------------------------------------------------------------------------------------------------------------
Pier 3T and Pier 4...............  Vibratory extract 14-                  2  Vibratory Hammer                 16
                                    inch timber or 18-inch                    (2).
                                    concrete piles at Pier
                                    3T and vibratory
                                    extract 14-inch timber
                                    piles at Pier 4.
Pier 3T and Pier 4...............  Vibratory extract 14-                  3  Vibratory Hammer                 41
                                    inch timber or 18-inch                    (2), Impact Hammer
                                    concrete piles at Pier                    (1).
                                    3T and impact install
                                    24-inch concrete piles.
Pier 3T and Pier 4...............  Vibratory extract 14-                  3  Vibratory Hammer                 30
                                    inch timber or 18-inch                    (2), Rotary Drill
                                    concrete piles at Pier                    (1).
                                    3T and rotary drill 24-
                                    inch concrete piles.
Pier 3T, CEP-176, and CEP-102....  Vibratory extract 14-                  3  Vibratory Hammer                 34
                                    inch timber or 18-inch                    (2), Impact Hammer
                                    concrete piles at Pier                    (1).
                                    3T, vibratory or impact
                                    install 42-inch pipe
                                    piles at CEP-176 and
                                    CEP-102.
Pier 3T and CEP-176..............  Vibratory extract 14-                  3  Vibratory Hammer                 67
                                    inch timber or 18-inch                    (2), Impact Hammer
                                    concrete piles at Pier                    (1).
                                    3T, vibratory or impact
                                    install 42-inch pipe
                                    piles at CEP-176, and
                                    vibratory or impact
                                    install 28-inch sheet
                                    pile at CEP-176.
Pier 3T and Pier 3...............  Vibratory extract 14-                  2  Vibratory Hammer                 13
                                    inch timber and or 18-                    (1), Impact Hammer
                                    inch concrete piles at                    (1).
                                    Pier 3T and impact
                                    hammer 24-inch concrete.
Pier 3T and Pier 3...............  Vibratory extract 14-                  2  Vibratory Hammer                 33
                                    inch timber or 18-inch                    (1), Rotary Drill
                                    concrete piles at Pier                    (1).
                                    3T and rotary drill 24-
                                    inch concrete.
----------------------------------------------------------------------------------------------------------------

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to this 
modified IHA as well. In addition, NMFS has reviewed the 2021 Stock 
Assessment Reports (Hayes et al., 2022), information on relevant 
Unusual Mortality Events, and recent scientific literature, and 
determined that no new information affects our original analysis of 
impacts under the initial IHA. (Note that the Potential Biological 
Removal of the gray seal Western North Atlantic stock increased from 
1,389 to 1,458, and annual mortality and serious injury of the harbor 
porpoise Gulf of Maine/Bay of Fundy stock decreased from 217 to 164).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the initial IHA, which remains applicable to the issuance of 
this modified IHA. NMFS is not aware of new information regarding 
potential effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take for the specified activity are found in the notice of 
issuance of the initial Pier 3 Replacement IHA (87 FR 15945; March 21, 
2022). The types and sizes of piles, installation methods, and marine 
mammal stocks taken remain unchanged from the initial IHA. The proposed 
modification includes concurrent pile driving activities which could 
result in increased SPLs and harassment zone sizes given the proximity 
of the component driving sites and the physical rules of decibel 
addition. The Navy anticipates that concurrent use of up to three 
hammers producing continuous noise could occur on 70 days. Given that 
the use of more than one hammer for pile installation and removal on 
the same day (whether simultaneous or not) would increase the number of 
piles installed per day, this would be anticipated to result in a 
reduction in total number of days of pile installation. Table 1 shows 
potential scenarios for concurrent pile driving. However, as described 
further below, the Navy has conservatively calculated take for both 
individual and concurrent pile driving scenarios and requested 
authorization of take for the most conservative scenario.
    NMFS (2018b) analyzes overlapping sound fields created by the use 
of more than one hammer differently for impulsive (impact hammer and 
Level A harassment zones for drilling with a DTH hammer) and continuous 
sound sources (vibratory hammer and Level B harassment zones for 
drilling with a DTH hammer; Table 7) and differently for impulsive 
sources with rapid impulse rates of multiple strikes per second (DTH) 
and slow impulse rates (impact hammering) (NMFS 2021). It is unlikely 
that the two impact hammers would strike at the same instant, and 
therefore, the SPLs would not be adjusted regardless of the distance 
between impact hammers. In this case, each impact hammer would be 
considered to have its own independent harassment zones.
    When two continuous noise sources, such as vibratory hammers and 
drills, have overlapping sound fields, there is potential for higher 
sound levels than for non-overlapping sources. When two or more 
vibratory hammers are used simultaneously, and the isopleth of one 
sound source encompasses the isopleth of another sound source, the 
sources are considered additive and source levels are combined using 
the rules in Table 2.

               Table 2--Rules for Combining Sound Source Levels Generated During Pile Installation
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            Hammer types                   Difference in SSL            Level A zones          Level B zones
----------------------------------------------------------------------------------------------------------------
Vibratory, Impact..................  Any.........................  Use impact zones......  Use largest zones.
Impact, Impact.....................  Any.........................  Use zones for each      Use zone for each
                                                                    pile size and number    pile size.
                                                                    of strikes.

[[Page 75603]]

 
Vibratory, Vibratory or Vibratory,   0 or 1 dB...................  Add 3 dB to the higher  Add 3 dB to the
 Drilling.                                                          source level.           higher source level.
                                     2 or 3 dB...................  Add 2 dB to the higher  Add 2 dB to the
                                                                    source level.           higher source level.
                                     4 to 9 dB...................  Add 1 dB to the higher  Add 1 dB to the
                                                                    source level.           higher source level.
                                     10 dB or more...............  Add 0 dB to the higher  Add 0 dB to the
                                                                    source level.           higher source level.
----------------------------------------------------------------------------------------------------------------

    During pile driving, it is common for pile installation to start 
and stop multiple times as each pile is adjusted and its progress is 
measured and documented, though as stated above, for short durations, 
it is anticipated that multiple hammers could be in use simultaneously. 
Following the rules for combining sound source levels, decibel addition 
calculations were carried out for each possible concurrent pile driving 
scenario. The source levels included in Table 3 are used to estimate 
the Level A harassment zones and Level B harassment zones. No addition 
is warranted for impact pile driving in combination with vibratory.

   Table 3--Revised Proxy Values for Simultaneous Use of Non-Impulsive
                                 Sources
------------------------------------------------------------------------
      Scenario location          Activity and proxy      Revised proxy
------------------------------------------------------------------------
Pier 3T and Pier 4...........  Vibratory Extract 14-  165 dB RMS.
                                inch timber at Pier
                                3T--162 dB RMS.
                               Vibratory extract 14-
                                inch timber Pier 4--
                                162 dB RMS.
                               Vibratory Extract 18-  165 dB RMS.
                                inch concrete piles
                                at Pier 3T--162 dB
                                RMS.
                               Vibratory Extract 14-
                                inch timber piles at
                                Pier 4--162 dB RMS.
                               Vibratory extract 14-  166 dB RMS.
                                inch timber piles at
                                Pier 3T--162 dB RMS.
                               Vibratory extract 18-
                                inch concrete Piles
                                at Pier 3T--162 dB
                                RMS.
                               Rotary drill 24-inch
                                concrete piles at
                                Pier 4--154 dB RMS.
Pier 3T, CEP-176, and CEP-102  Vibratory extract 14-  169 dB RMS.
                                inch timber at Pier
                                3T--162 dB RMS.
                               Vibratory install 42-
                                inch pipe at CEP-176
                                or CEP-102--168 dB
                                RMS.
                               Vibratory extract 18-  169 dB RMS.
                                inch concrete at
                                Pier 3T--162 dB RMS.
                               Vibratory install 42-
                                inch pipe at CEP-176
                                or CEP-102--168 dB
                                RMS.
Pier 3T and Pier 3...........  Vibratory extract 14-  163 dB RMS.
                                inch timber at Pier
                                3T--162 dB RMS.
                               Rotary drill 24-inch
                                concrete piles at
                                Pier 4--154 dB RMS.
                               Vibratory extract 18-  163 dB RMS.
                                inch concrete at
                                Pier 3T--162 dB RMS.
                               Rotary drill 24-inch
                                concrete piles at
                                Pier 4--154 dB RMS.
------------------------------------------------------------------------

    The size of the Level A harassment zones and Level B harassment 
zones using the source levels in Table 3 result in larger isopleths 
(see Table 4 for isopleth distances) compared to individual activities.

                                 Table 4--Level A and Level B Harassment Isopleths for Concurrent Pile Driving Scenarios
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                                                                                                                   Level A (m)
              Activity                     Pile location               Scenario           Source  --------------------------------------------  Level B
                                                                                          level        LF         MF         HF      Phocids    (m/km2)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Pile Extraction...........  Pier 3T and pier 4.....  Remove two 14-inch             165         51          5         75         31     10,000
                                                                timber piles.
Vibratory Pile Extraction...........  Pier 3T and pier 4.....  Remove 18-inch concrete        165         51          5         75         31     10,000
                                                                and 14-inch timber
                                                                piles.
Vibratory Pile Extraction and         Pier 3T and pier 4.....  Remove 14-inch timber          166         59          5         87         36     11,659
 Drilling.                                                      and 18-inch concrete
                                                                piles at Pier 3T and
                                                                rotary drill for 24-
                                                                inch concrete piles at
                                                                Pier 4.
Vibratory Pile Extraction and         Pier 3T, CEP-176, and    Remove 14-inch timber          169        194         17        287        118     18,479
 Drilling.                             CEP-102.                 at Pier 3T and install
                                                                42-inch pipe at either
                                                                CEP-176 or CEP-102.
Vibratory Pile Extraction and         Pier 3T, CEP-176, and    Remove 18-inch concrete        169        194         17        287        118     18,479
 Drilling.                             CEP-102.                 at Pier 3T and install
                                                                42-inch pipe at either
                                                                CEP-176 or CEP-102.
Vibratory Pile Extraction and         Pier 3T and Pier 3.....  Remove 14-inch timber          163         43          4         64         26      7,356
 Drilling.                                                      piles at Pier 3T and
                                                                rotary drill for 24-
                                                                inch concrete piles at
                                                                new Pier 3.
Vibratory Pile Extraction and         Pier 3T and Pier 3.....  Remove 18-inch concrete        163         43          4         64         26      7,356
 Drilling.                                                      piles at Pier 3T and
                                                                rotary drill for 24-
                                                                inch concrete piles at
                                                                new Pier 3.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    With the exception of bottlenose dolphins, which is the only 
species where densities and harassment isopleths are used to determine 
take estimates as opposed to local occurrence data, the total taking by 
Level B harassment of all species is predicted to be the same or lower 
with concurrent activity scenarios due to a decrease in number of 
construction days (see Table 5 for calculated take estimate 
comparison), therefore the authorized take for these species remains 
unchanged from the initial IHA to account for the most conservative

[[Page 75604]]

scenario. As stated in the initial Pier 3 IHA (87 FR 15945; March 21, 
2022), the total take number for all species, except bottlenose 
dolphin, were estimated using local occurrence data, therefore take 
estimates were determined by multiplying the number of pile driving 
days by assumed daily occurrence for each species. As the number of 
pile driving days under concurrent scenarios is lower than the number 
of days anticipated for individual activities, the calculated takes 
were lower than what was originally authorized through the initial IHA. 
Please see the notice of issuance for the initial Pier 3 IHA (87 FR 
15945; March 21, 2022) for a detailed explanation of how take estimates 
were calculated for individual pile driving activities for these 
species.
    The total take number for bottlenose dolphin was estimated using 
inshore seasonal densities provided in Engelhaupt et al. (2016) from 
vessel line-transect surveys near NAVSTA Norfolk and adjacent areas 
near Virginia Beach, Virginia from August 2012 through August 2015. 
This density includes sightings inshore of the Chesapeake Bay from 
NAVSTA Norfolk west to the Thimble Shoals Bridge, and is the most 
representative density for the project area. NMFS multiplied the 
density of 1.38 dolphins per square kilometer by the Level B harassment 
zone area for each activity for the project, and then by the number of 
days associated with that activity (see Table 1). The Level B 
harassment zones increased as a result of concurrent pile driving 
activities; therefore, calculated Level B harassment exposure estimates 
also increased as a result. As described in the notice of the initial 
proposed and issued IHA, there is insufficient information on relative 
abundance to apportion the takes precisely to each of the three stocks 
in the area. Therefore, the same approach as used in previous projects 
(e.g., Hampton Roads Bridge Tunnel project (86 FR 17458; April 2, 
2021), and the U.S. Navy Norfolk Maintenance Rule (86 FR 24340; May 6, 
2021)) was used to estimate the appointment of takes to each of the 
three bottlenose dolphin stocks that may be present in the area. Given 
that most of the Northern North Carolina Estuarine Stock (NNCES) are 
found in the Pamlico Sound Estuary, over 160 kilometers from Norfolk, 
we conservatively estimated that no more than 200 of the requested 
takes will be from this stock. Since members of the northern migratory 
coastal and southern migratory coastal stocks are thought to occur in 
or near the Bay in greater numbers, we conservatively assume that no 
more than half of the remaining takes will accrue to either of these 
stocks. Additionally, a subset of these takes would likely be comprised 
of the Chesapeake Bay resident dolphins, although the size of that 
population is unknown.
    With the exception of harbor seals, the total taking by Level A 
harassment of all species is predicted to be the same or lower with the 
concurrent activity scenario given the decreased number of pile driving 
days anticipated and therefore the authorized take by Level A 
harassment remains unchanged from the initial IHA to be conservative. 
To remain consistent with the calculations used to determine take by 
Level A harassment for harbor seals in the proposed rulemaking for 
years two through five of the Navy's Pier 3 Replacement project (87 FR 
60998; October 7, 2022), the Navy has requested to increase the number 
of takes by Level A harassment for harbor seals to reflect the 
potential of one seal per day (of 13.6 seals per day occurrence), or 20 
percent of the total taking, to remain within the Level A harassment 
area and within the shutdown zone for sufficient prior to detection 
that Level A harassment would actually occur. Similar methodologies 
were applied for gray seal which resulted in no estimated change in the 
number of takes by Level A harassment.
    The total numbers of incidental takes by Level A harassment and 
Level B harassment, including proposed updated Level A harassment 
numbers for harbor seal and Level B harassment numbers for bottlenose 
dolphin, are shown in Table 5. The total number of takes (Level A 
harassment and Level B harassment combined) has not changed for harbor 
seal because the additional takes by Level A harassment are assumed to 
occur to animals that would have previously been counted as taken by 
Level B harassment. Therefore, NMFS is proposing to reduce the 
authorized Level B harassment take of harbor seal by the same amount 
that the Level A harassment estimate is increased.

                 Table 5--Proposed Total Numbers of Authorized Takes by Level A and Level B Harassment and as a Percentage of the Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                              Level A         Level B                       Percent of
                    Species                                       Stock                     harassment      harassment     Total taking        stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale.................................  Gulf of Maine \a\......................               0              12              12             0.9
Bottlenose dolphin \b\ \c\ \d\.................  WNA Coastal, Northern Migratory........               0          14,841          14,841           223.5
                                                 WNA Coastal, Southern Migratory........               0          14,841          14,841           395.7
                                                 Northern NC Estuarine..................               0             200             200            24.3
Harbor porpoise................................  Gulf of Maine/Bay of Fundy.............              10              12              22             0.0
Harbor seal....................................  WNA....................................             152           1,092           1,244             2.0
Gray seal......................................  WNA....................................               1               2               3             0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ West Indies DPS. Please see the Description of Marine Mammals in the Area of Specified Activities section in the initial IHA for further discussion.
\b\ Takes estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow the same
  probability of presence in the project area. Please see the Small Numbers section for additional information.
\c\ Assumes multiple repeated takes of the same individuals from a small portion of each stock as well as repeated takes of Chesapeake Bay resident
  population (size unknown). Please see the Small Numbers section for additional information.
\d\ Total proposed authorized takes by Level B harassment increased from 14,989 in the initial IHA to 29,882.
\e\ Total proposed authorized takes by Level A harassment increased from 16 in the initial IHA to 152, however the total take (1244) has not increased.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    With the exception of the revised shutdown provisions for 
concurrent pile driving scenarios discussed below, the monitoring and 
reporting measures described here are identical to those included in 
the initial Pier 3 IHA (87 FR 15945; March 21, 2022).
    In addition to the measures described later in this section, the 
Navy will

[[Page 75605]]

employ the following mitigation measures:
     Avoid direct physical interactions with marine mammals 
during construction activity. If a marine mammal comes within 10 meters 
of such activity, operations must cease and vessels must reduce speed 
to the minimum level required to maintain steerage and safe working 
conditions, as necessary to avoid direct physical interaction;
     The Navy will conduct trainings between construction 
supervisors and crews and the marine mammal monitoring team prior to 
the start of all activities subject to this IHA and when new personnel 
join the work, to explain responsibilities, communication procedures, 
marine mammal monitoring protocol, and operational procedures; and
     Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the 
harassment zone.
    The following monitoring measures apply to the Navy's in water 
construction activities:
     Protected Species Observers (PSOs)--The placement of PSOs 
during all pile driving, removal, and drilling activities will ensure 
that the entire shutdown zone is visible. Should environmental 
conditions deteriorate such that the entire shutdown zone would not be 
visible (e.g., fog, heavy rain), pile driving, removal, and drilling 
must be delayed until the PSO is confident marine mammals within the 
shutdown zone could be detected.
     Monitoring for Level A and Level B Harassment--The Navy 
will monitor the Level B harassment zones to the extent practicable, 
and all of the Level A harassment zones. The Navy will monitor at least 
a portion of the Level B harassment zone on all pile driving, removal, 
or drilling days. Monitoring zones provide utility for observing by 
establishing monitoring protocols for areas adjacent to the shutdown 
zones. Monitoring zones enable observers to be aware of and communicate 
the presence of marine mammals in the project area outside the shutdown 
zone and thus prepare for a potential cessation of activity should the 
animal enter the shutdown zone.
     Pre-Activity Monitoring--Prior to the start of daily in 
water construction activity, or whenever a break in pile driving/
removal of 30 minutes or longer occurs, PSOs will observe the shutdown 
and monitoring zones for a period of 30 minutes. The shutdown zone will 
be considered cleared when a marine mammal has not been observed within 
the zone for that 30 minute period. If a marine mammal is observe 
within the shutdown zones listed in Table 6, pile driving, removal, and 
drilling activities must be delayed or halted. If pile driving, 
removal, and/or drilling 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 zones or 15 minutes have passed without re-detection of the 
animal. When a marine mammal for which Level A harassment take is 
authorized is present in the Level B harassment zone, activities may 
begin and Level B harassment take will be recorded. If work ceases for 
more than 30 minutes, the pre-activity monitoring of the shutdown zones 
will commence. A determination that the shutdown zone is clear must be 
made during a period of good visibility (i.e., the entire shutdown zone 
and surrounding waters must be visible to the naked eye).
     Soft Start--Soft start procedures are used to provide 
additional protection to marine mammals by providing and/or giving 
marine mammals a chance to leave the area prior to the hammer operating 
at full capacity. For impact pile driving, contractors will be required 
to provide an initial set of three strikes from the hammer at reduced 
energy, followed by a 30-second waiting period, then two subsequent 
reduced energy strike sets. 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.
     Reporting--PSOs must record specific information as 
described in the Federal Register notice of the issuance of the initial 
IHA (87 FR 15945; March 21, 2022). Within 90 days after completion of 
pile driving and removal activities, the Navy must provide NMFS with a 
monitoring report which includes summaries of recorded takes and 
estimates of the number of marine mammals that may have been harassed. 
If no comments are received by NMFS within 30 days, the draft final 
report will constitute the final report. If comments are received, a 
final report addressing NMFS comments must be submitted within 30 days 
after receipt of comments.
     Establishment of Shutdown Zones--The Navy will establish 
shutdown zones for all pile driving, removing, and drilling 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 6). For every pile driving activity, shutdown is 
mandatory whenever an animal is within 10 m of a pile driving location. 
In such instances, in-water pile driving operations may only continue 
after 15 minutes have passed or the animal is seen heading away from 
the 10 m shutdown zone.

                  Table 6--Proposed Shutdown Zones (m) During Concurrent Pile Driving Scenarios
         [Shutdown zones for Individual pile driving activities remain unchanged from the initial IHA.]
----------------------------------------------------------------------------------------------------------------
                                                                                  Shutdown zones
                                                                 -----------------------------------------------
                            Activity                                 Humpback         Harbor       Dolphins and
                                                                      whale *        porpoise          seals
----------------------------------------------------------------------------------------------------------------
Vibratory Remove two 14-inch timber piles.......................              55              55              35
Vibratory Remove 18-inch concrete and 14-inch timber piles......              55              55              35
Vibratory Remove 14-inch timber and 18-inch concrete piles at                 60              60              35
 Pier 3T and rotary drill for 24-inch concrete piles at Pier 4..
Vibratory Remove 14-inch timber at Pier 3T and Vibratory install             200             200              50
 42-inch pipe at either CEP-176 or CEP-102......................
Vibratory Remove 18-inch concrete at Pier 3T and Vibratory                   200             200              50
 install 42-inch pipe at either CEP-176 or CEP-102..............
Vibratory Remove 14-inch timber piles at Pier 3T and rotary                   45              45              30
 drill for 24-inch concrete piles at new Pier 3.................

[[Page 75606]]

 
Vibratory Remove 18-inch concrete piles at Pier 3T and rotary                 45              45              30
 drill for 24-inch concrete piles at new Pier 3.................
----------------------------------------------------------------------------------------------------------------
* Shutting down to the maximum distance to the Level A harassment threshold. No takes by Level A harassment are
  expected to occur or proposed for authorization.

    Based on our evaluation of the applicant's measures in 
consideration of the increased estimated take for bottlenose dolphin, 
as well as the modified shutdown provisions for concurrent pile driving 
scenarios, NMFS has re-affirmed the determination that the required 
mitigation measures, as proposed to be modified here, provide the means 
of effecting the least practicable impact on the affected species and 
their habitat.

Preliminary Determinations

    With the exception of the revised take numbers and shutdown 
procedures, the Navy's in water construction activities as well as 
monitoring and reporting requirements are unchanged from those in the 
initial IHA. The effects of the activity on the affected species and 
stocks, taking into consideration the modified mitigation and related 
monitoring measures, remain unchanged, notwithstanding the increase to 
the authorized amount of harbor seal take by Level A harassment, and to 
the authorized amount of bottlenose dolphin take by Level B harassment.
    The takes from Level A and Level B harassment would be due to 
potential behavioral disturbance, temporary threshold shift (TTS), and 
potentially but unlikely, permanent threshold shift (PTS). No serious 
injury or mortality is anticipated given the nature of the activity and 
measures designed to minimize the possibility of injury to marine 
mammals. The potential for harassment is minimized through the 
construction method and the implementation of the planned mitigation 
measures (see Description of Mitigation, Monitoring and Reporting 
Measures section).
    The Level A harassment zones identified in Table 4 are based upon 
an animal exposed to pile driving or drilling multiple concurrent piles 
per day. Considering the short duration to drive each pile and breaks 
between pile installations (to reset equipment and move pile into 
place), means an animal would have to remain within the area estimated 
to be ensonified above the Level A harassment threshold for multiple 
hours. With the addition of concurrent pile driving, the Navy 
anticipates fewer construction days than with individual pile driving 
which will ultimately reduce exposure time for all species. 
Additionally, no Level A harassment is anticipated for humpback whales 
due to the proposed mitigation measures to shutdown to the full extent 
of the Level A harassment zone, which we expect the Navy will be able 
to effectively implement given the reasonable Level A harassment zone 
sizes and high visibility of humpback whales. If an animal was exposed 
to accumulated sound energy, the resulting PTS would likely be small 
(e.g., PTS onset) at lower frequencies where pile driving energy is 
concentrated, and unlikely to result in impacts to individual fitness, 
reproduction, or survival.
    The Navy's proposed pile driving project precludes the likelihood 
of serious injury or mortality. For all species and stocks, take would 
occur within a limited, confined area (immediately surrounding NAVSTA 
Norfolk in the Chesapeake Bay area) of the stock's range. Level A and 
Level B harassment will be reduced to the level of least practicable 
adverse impact through use of mitigation measures described herein. 
Furthermore, the amount of take proposed to be authorized is extremely 
small when compared to stock abundance.
    There are three bottlenose dolphin stocks that could occur in the 
project area. Therefore, the estimated 29,882 incidents of dolphin take 
by Level B harassment would likely be split among the western North 
Atlantic northern migratory coastal stock, the western North Atlantic 
southern migratory coastal stock, and the northern North Carolina 
Estuarine stock (NNCES), and is expected to involve repeated takes of a 
limited subset of individuals of these stocks. Based on the stocks' 
respective occurrence in the area, NMFS estimates that there would be 
no more than 200 takes from the NNCES stock, representing 24 percent of 
that population, with the remaining takes split evenly between the 
northern and southern migratory coastal stocks. Based on the 
consideration of various factors as described below, we have determined 
the number of individuals taken would comprise less than one-third of 
the best available population abundance estimate of either coastal 
migratory stocks. Detailed descriptions of the stocks' ranges have been 
provided in the Description of Marine Mammals in the Area of Specified 
Activities section of the initial IHA.
    Both the northern migratory coastal and southern migratory coastal 
stocks have expansive ranges and they are the only dolphin stocks 
thought to make broad-scale, seasonal migrations in coastal waters of 
the western North Atlantic. Given the large ranges associated with 
these two stocks it is unlikely that large segments of either stock 
would approach the project area and enter into the Chesapeake Bay. The 
majority of both stocks are likely to be found widely dispersed across 
their respective habitat ranges and unlikely to be concentrated in or 
near the Chesapeake Bay
    Furthermore, the Chesapeake Bay and nearby offshore waters 
represent the boundaries of the ranges of each of the two coastal 
stocks during migration. The northern migratory coastal stock is found 
during warm water months from coastal Virginia, including the 
Chesapeake Bay and Long Island, New York. The stock migrates south in 
late summer and fall. During cold water months, dolphins may be found 
in coastal waters from Cape Lookout, North Carolina, to the North 
Carolina/Virginia border. During January-March, the southern Migratory 
coastal stock appears to move as far south as northern Florida. From 
April-June, the stock moves back north to North Carolina. During the 
warm water months of July-August, the stock is presumed to occupy the 
coastal waters north of Cape Lookout, North Carolina, to Assateague, 
Virginia, including the Chesapeake Bay. There is likely some overlap 
between

[[Page 75607]]

the northern and southern migratory stocks during spring and fall 
migrations, but the extent of overlap is unknown.
    The Chesapeake Bay and waters offshore of the mouth are located on 
the periphery of the migratory ranges of both coastal stocks (although 
during different seasons). Additionally, each of the migratory coastal 
stocks are likely to be located in the vicinity of the Bay for 
relatively short timeframes. Given the limited number of animals from 
each migratory coastal stock likely to be found at the seasonal 
migratory boundaries of their respective ranges, in combination with 
the short time periods (~2 months) animals might remain at these 
boundaries, it is reasonable to assume that takes are likely to occur 
only within some small portion of either of the migratory coastal 
stocks.
    Many of the dolphin observations in the Bay are likely repeated 
sightings of the same individuals. The Potomac-Chesapeake Dolphin 
Project has observed over 1,200 unique animals since observations began 
in 2015. Re-sightings of the same individual can be highly variable. 
Some dolphins are observed once per year, while others are highly 
regular with greater than 10 sightings per year (Mann, Personal 
Communication). Similarly, using available photo-identification data, 
Engelhaupt et al. (2016) determined that specified individuals were 
often observed in close proximity to their original sighting locations 
and were observed multiple times in the same season or same year. 
Ninety-one percent of re-sighted individuals (100 of 110) in the study 
area were recorded less than 30 kilometers from the initial sighting 
location. Multiple sightings of the same individual would considerably 
reduce the number of individual animals that are taken by harassment. 
Furthermore, the existence of a resident dolphin population in the Bay 
would increase the percentage of dolphin takes that are actually re-
sightings of the same individuals.
    The increase in Level A harassment for harbor seal take corresponds 
to a commensurate decrease in the predicted number of Level B 
harassment, and the total number of takes remains unchanged. Therefore, 
in consideration of this, the harbor seal stock abundance information 
discussed in the initial IHA and in the Estimated Take section above, 
we re-affirm that small numbers of harbor seals will be taken relative 
to the population size of the stock. Even in consideration of the 
increased numbers of take by Level A harassment, the impacts of these 
exposures may result in moderate injury to a limited number of harbor 
seals.
    In conclusion, there is no new information suggesting that our 
analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily determined the following: (1) the 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the proposed authorized takes represent 
small numbers of marine mammals relative to the affected stock 
abundances; and (4) The Navy's activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action, and 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act (ESA)

    Section 7(a)(2 of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is proposed for 
authorization 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.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
modify an IHA to the Navy for conducting construction activities 
related to year one of the Pier 3 replacement project, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed modified IHA can be found at 
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses (included in both this document 
and the referenced documents supporting the 2022 IHA), the proposed 
modifications to the authorization, and any other aspect of this 
notice. Please include with your comments any supporting data or 
literature citations to help inform our final decision on the request 
for MMPA authorization.

    Dated: December 6, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-26830 Filed 12-8-22; 8:45 am]
BILLING CODE 3510-22-P