[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Notices]
[Pages 5856-5860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01807]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC706]


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

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

ACTION: Notice; issuance of a modified Letter of Authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued a modified Letter of Authorization to the U.S. 
Navy to incidentally harass, by Level B harassment only, marine mammals 
during construction activities associated with pile driving and 
bulkhead repair at Naval Station Newport in Newport, Rhode Island.

DATES: This Authorization is effective from January 25, 2023 to May 14, 
2027.

FOR FURTHER INFORMATION CONTACT: Cara Hotchkin, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS 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/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

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.

History of Request

    On December 15, 2021, NMFS issued a final rule to the Navy (86 FR 
71162) to incidentally harass, by Level A and Level B harassment only, 
marine mammals during construction activities associated with bulkhead 
replacement and repairs at Naval Station Newport (NAVSTA Newport) over 
the course of 5 years (2022-2027). Subsequently, on January 26, 2022, 
NMFS issued a Letter of Authorization (LOA) to the Navy (87 FR 6145) 
associated with the final rule. Species authorized for take included 
Atlantic white-sided dolphin (Lagenorhynchus acutus), common dolphin 
(Delphinus delphis), harbor porpoise (Phocoena phocoena), harbor seal 
(Phoca vitulina), gray seal (Halichoerus grypus), harp seal (Pagophilus 
groenlandicus), and hooded seal (Cystophora cristata). The effective 
dates of this LOA are May 15, 2022 through May 14, 2027.
    On November 15, 2022, NMFS received a request from the Navy for a 
modification to the NAVSTA Newport bulkhead construction project due to 
a change in the construction contractor's plan. On December 15, 2022, 
the Navy revised their request to incorporate NMFS's DTH source level 
recommendations (available at: https://media.fisheries.noaa.gov/2022-11/PUBLIC%20DTH%20Basic%20Guidance_November%202022.pdf). In its initial 
request for incidental take regulations, the Navy did not anticipate 
the need for vibratory driving of steel pipe piles or DTH installation 
of any pile type. Vibratory driving of steel sheet and H-piles was 
included, and analyzed in the rule. However, the construction 
contractor for the first phase of the project (S45 bulkhead) has since

[[Page 5857]]

determined that vibratory driving of steel pipe piles will be required, 
and that DTH hammering may be necessary if obstructions are encountered 
that would prevent the use of impact or vibratory hammers to install 
piles. Therefore, the Navy requested, and NMFS proposed, to modify the 
2022 LOA to include take incidental to potential vibratory driving of 
30-in steel pipe piles and DTH hammering of 10-in diameter holes. These 
updates to the Navy's specified activity will increase estimated Level 
B harassment isopleths and, therefore, result in an increased estimate 
of exposures by Level B harassment for harbor seal, gray seal, and harp 
seal. NMFS has determined that the changes also necessitate revised 
shutdown mitigation provisions for vibratory and DTH pile driving 
scenarios for all species. The monitoring and reporting measures remain 
the same as prescribed in the initial LOA, and no additional take is 
authorized for other species. There have been no changes from the 
proposed modification.

Description of the Specified Activity and Anticipated Impacts

    The modified LOA includes the same construction activities (i.e., 
impact pile driving, vibratory pile driving and removal) in the same 
locations that were described in the 2022 final rule (86 FR 71162; 
December 15, 2021); for the S45 location, additional vibratory driving 
and DTH hammering are included. The monitoring and reporting measures 
remain the same as prescribed in the initial LOA, while revisions to 
the required mitigation measures have been made. NMFS refers the reader 
to relevant documents related to issuance of the initial LOA, including 
the Navy's application, the proposed rule and request for comments (86 
FR 56857; October 13, 2021), final rule (86 FR 71162; December 15, 
2021), and notice of issued LOA (87 FR 6145; February 3, 2022) 
(available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-construction-naval-station-newport-rhode-island) 
for more detailed description of the project activities.

Detailed Description of the Action

    A detailed description of the planned construction activities is 
found in the aforementioned documents associated with issuance of the 
initial LOA. The location, time of year, and general nature of the 
activities are identical to those described in the previous documents. 
However, as noted in the History of Request section, the Navy 
anticipates that vibratory installation of 30-in steel pipe piles and 
DTH hammering will be necessary to complete the S45 phase of the 
project on time.
    A detailed description of the planned S45 bulkhead modifications is 
provided in the Federal Register notice for the proposed LOA 
Modification (88 FR 342; January 4, 2023). Since that time, no changes 
have been made to the planned construction activities. Therefore, a 
detailed description is not provided here. Please refer to that Federal 
Register notice for the description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue a Modified LOA to the Navy was 
published in the Federal Register on January 4, 2023 (88 FR 342). That 
notice described, in detail, the Navy's modified activities. In that 
notice, we requested public input on the request for authorization 
described therein, our analyses, the proposed authorization, and any 
other aspect of the notice of proposed LOA modification, and requested 
that interested persons submit relevant information, suggestions, and 
comments. This proposed notice was available for a 15-day public 
comment period. NMFS received no public comments on the proposed 
modification.

Description of Marine Mammals

    A detailed description of the marine mammals in the area of the 
activities is found in relevant documents related to issuance of the 
initial LOA, including the Navy's application, and the proposed rule 
and request for comments (86 FR 56857; October 13, 2021). This 
information remains applicable to this modified LOA. A description of 
the modified construction activities at the S45 bulkhead, 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 Federal 
Register of proposed LOA Modification (88 FR 342; January 4, 2023); 
since that time, we are not aware of any changes in the status of these 
species and stocks; therefore, detailed descriptions are not provided 
here. Please refer to that Federal Register notice for these 
descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

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 final rule, which remains applicable to modification of 
the LOA. 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 proposed 
rule (86 FR 56857; October 13, 2021); the descriptions presented in the 
proposed rule did not change in the final rule (86 FR 71162; December 
15, 2021). The types and sizes of piles, and marine mammal stocks taken 
remain unchanged from the final rule. This modification addresses the 
addition of vibratory driving of four 30-in steel pipe piles and ten 
instances of DTH hammering at the S45 bulkhead, which would result in 
increased harassment zone sizes. The Navy anticipates that up to four 
days of vibratory driving (up to two piles per day) and up to eight 
days of DTH hammering at one hole per day will be required. Acoustic 
effects on marine mammals during the specified activity can occur from 
impact and vibratory pile installation and removal, and DTH. The 
effects of underwater noise from the Navy's activities have the 
potential to result in Level A and Level B harassment of marine mammals 
in the action area.
    The modification includes the use of DTH hammers, which were not 
evaluated in the final rule. A DTH hammer is essentially a drill bit 
that drills through the bedrock using a rotating function like a normal 
drill, in concert with a hammering mechanism operated by a pneumatic 
(or sometimes hydraulic) component integrated into to the DTH hammer to 
increase speed of progress through the substrate (i.e., it is similar 
to a ``hammer drill'' hand tool). The sounds produced by DTH methods 
contain both a continuous non-impulsive component from the drilling 
action and an impulsive component from the hammering effect. Therefore, 
NMFS treats DTH systems as both impulsive and continuous, non-impulsive 
sound source types simultaneously.

Ensonified Area

    A detailed description of the operational and environmental 
parameters of the activity that are used in estimating the area 
ensonified above the acoustic thresholds, including source levels and 
transmission loss coefficient, can be found in the proposed rule (86 FR 
56857; October 13, 2021), and did not change in the final rule (86 FR 
71162; December 15, 2021).

[[Page 5858]]

The new activities include vibratory driving of 30-in pipe piles and 
DTH hammering; for those activities, we provide a description of the 
sound source levels and ensonified areas below.
    Sound Source Levels of Construction Activities--The intensity of 
pile driving sounds is greatly influenced by factors such as the type 
of piles, hammers, and the physical environment (e.g., sediment type) 
in which the activity takes place. The Navy consulted with NMFS on the 
appropriate sound source levels to use for vibratory driving, and NMFS 
recommended a value based on available measurements of vibratory 
driving of 30-in steel pipe piles (CALTRANS, 2020). Source data for the 
installation methods and pile types are provided in Table 2. Note that 
the source levels in this Table represent the SPL referenced at a 
distance of 10 m from the source.
    NMFS recommends treating DTH systems as both impulsive and 
continuous, non-impulsive sound source types simultaneously. Thus, 
impulsive thresholds are used to evaluate Level A harassment, and the 
continuous threshold is used to evaluate Level B harassment. The Navy 
consulted with NMFS to obtain the appropriate proxy values for DTH 
mono-hammers. NMFS recommended proxy levels for Level A harassment 
based on available data regarding DTH systems of similar sized piles 
and holes (Table 1) (Denes et al., 2019; Guan and Miner, 2020; Reyff 
and Heyvaert, 2019; Reyff, 2020; Heyvaert and Reyff, 2021).

                                        Table 1--Source Information for Modified Pile Driving and DTH Activities
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                                                           Average peak     Average RMS     Average SEL     Strike rate                   Maximum number
                                                           SPL (dB re 1    SPL (dB re 1      (dB re 1      (strikes per     Minutes to     of piles per
                                                              [mu]Pa)         [mu]Pa)     [mu]Pa\2\ sec)      second)          drive            day
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Vibratory Driving 30-in steel pipe piles................             N/A             159             N/A             N/A              30               2
10-in DTH mono-hammer...................................             172             167             146              10             240               1
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    The methods used to calculate the ensonified areas based on the 
sound source information in Table 2 are identical to those used in the 
final rule; details are provided in the Proposed Rule (86 FR 56857; 
October 13, 2021). The resulting Level A and Level B harassment 
isopleths are provided in Tables 2 and 3.

                           Table 2--Calculated Distance and Areas of Level A and Level B Harassment for Impulsive Noise (DTH)
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                                                                                         Level A harassment \2\                       Level B harassment
                                                            Total   ------------------------------------------------------------------------------------
             Activity                Duration, count,    production                           High frequency
                                     size, and or rate      days         Mid-frequency      cetaceans (harbor     Phocid pinnipeds   Harbor porpoise and
                                                                     cetaceans (dolphins)       porpoise)                                  phocids
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DTH (10-in holes)................  4 hours/day (1 hole/           8  3.3 m/0.000034 km\2\  111.6 m/0.019204     50.1 m/0.004657      See Table 4.
                                    day).                                                   km\2\.               km\2\.
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                    Table 3--Calculated Distance and Areas of Level A and Level B Harassment for Non-Impulsive Noise (Vibratory, DTH)
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                                                                                         Level A harassment \2\                       Level B harassment
                                                            Total   ------------------------------------------------------------------------------------
             Activity                Duration, count,    production                           High frequency
                                     size, and or rate      days         Mid-frequency      cetaceans (harbor     Phocid pinnipeds   Harbor porpoise and
                                                                     cetaceans (dolphins)       porpoise)                                  phocids
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DTH (10-in holes)................  4 hours/day (1 hole/           8                            See Table 3                           13,594 m/7.80374
                                    day).                                                                                             km\2\
                                                                    ----------------------------------------------------------------
30-in Steel Pipe Vibratory.......  1 hour/day (2 piles/           4  0.4 m/0.000001 km\2\  7.4 m/0.000152       3.1 m/0.00003 km\2\  3,981 m/6.741652
                                    day).                                                   km\2\.                                    km\2\
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Marine Mammal Occurrence and Take Calculation and Estimation

    A description of the methods used to estimate take anticipated to 
occur from the project is found in the project's aforementioned 
documents. The methods of estimating take are identical to those used 
in the final rule. Table 4 shows the authorized takes at the S45 
facility under the initial LOA (all in year 1) and the estimated takes 
from the modified activities.

               Table 4--Take Estimates at S45 Facility Under the Initial LOA and the Modification
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                                                     Initial LOA (year 1; S45)             Modified LOA
                                                 ---------------------------------------------------------------
                                                      Level A         Level B         Level A         Level B
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Atlantic White-sided Dolphin....................               0               1               0               1
Common Dolphin..................................               0               3               0               3
Harbor Porpoise.................................               1               4               1               4
Harbor Seal.....................................              15             188              15             244
Gray Seal.......................................               3              40               3              52
Harp Seal.......................................               1              16               1              20
Hooded Seal.....................................               0               0               0               0
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[[Page 5859]]


   Table 5--Take Estimates as a Percentage of Stock Abundance for the Modification for Year 1 Takes at the S45
                                                    Facility
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                                                                   Level A      Level B
              Species                       Stock (NEST)          harassment   harassment     Percent of stock
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Atlantic White-sided Dolphin.......  Western North Atlantic                0            3  Less than 1 percent.
                                      (93,233).
Common Dolphin.....................  Western North Atlantic                0            3  Less than 1 percent.
                                      (172,947).
Harbor Porpoise....................  Gulf of Maine/Bay of Fundy            1            4  Less than 1 percent.
                                      (95,543).
Harbor Seal........................  Western North Atlantic               15          244  Less than 1 percent.
                                      (61,336).
Gray Seal..........................  Western North Atlantic                3           52  Less than 1 percent.
                                      (451,431).
Harp Seal..........................  Western North Atlantic                1           20  Less than 1 percent.
                                      (7.6 million).
Hooded Seal........................  Western North Atlantic                0            0  Less than 1 percent.
                                      (593,500).
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Description of Mitigation, Monitoring and Reporting Measures

    The reporting measures are identical to those included in the 
initial LOA included in 2022 final rule. The monitoring and mitigation 
measures have been updated to include additional hydroacoustic 
monitoring and conservative shutdown zones. The following measures are 
included in the LOA Modification, and are in addition to those 
described in the Final Rule (86 FR 71162; December 15, 2021):
     Supplemental hydroacoustic monitoring will include:
    [cir] 30-in Steel Pipe--vibratory driving: 2 piles; and
    [cir] Obstruction drilling--DTH hammer: up to 8 holes (if required 
for pile installation).
     Shutdown zones for the new activities are identical to 
those identified in the Final Rule (86 FR 71162; December 15, 2021):
    [cir] DTH Obstruction Drilling: The maximum shutdown zone included 
in the initial LOA is 150 m. This distance is greater than the 
calculated distance to Level A harassment thresholds for marine mammal 
species from DTH activities at the S45 facility, which is 111.6 m for 
harbor porpoise. The Navy will implement the same 150 m shutdown 
distance for cetaceans and pinnipeds when conducting DTH activities.
    [cir] Vibratory driving steel pipe piles: the greatest calculated 
distance to Level A harassment thresholds for species at this location 
is 7.4 m, which is less than the standard construction shutdown of 10 m 
to prevent equipment/mammal interactions. However, for consistency the 
Navy will implement a 30 m shutdown distance for cetaceans and 10 m for 
pinnipeds from vibratory pile driving steel pipe piles, which is the 
same as for vibratory driving steel sheet piles in the initial 
authorization.

Determinations

    With the exception of the revised take numbers and monitoring and 
mitigation measures, the Navy's planned in water construction 
activities as well as reporting requirements are unchanged from those 
in the initial LOA. 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, gray seal, and harp 
seal take by Level B harassment.
    The additional takes from Level B harassment will be due to 
potential behavioral disturbance and TTS. 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 Navy's pile driving project is unlikely to result in serious 
injury or mortality. For all species and stocks, take would occur 
within a limited, confined area (immediately surrounding NAVSTA Newport 
in the Narragansett 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 authorized is extremely small when 
compared to stock abundance.
    The additional 72 takes of harbor, gray, and harp seals represents 
an increase of approximately 5.7 percent of the total take authorized 
in the initial LOA, and the anticipated impacts are identical to those 
described in the 2022 final rule. The amount of additional take for 
each species is also small (less than 1 percent of each stock). The 
Navy will conduct additional hydro-acoustic monitoring of the new 
activities, which will improve understanding of the source levels of 
such activities for future work. The modification to the LOA includes 
additional required mitigation and monitoring measures (albeit some 
minor modification to harassment and shutdown distances), and identical 
reporting measures as the 2022 LOA.
    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 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 authorized takes 
will have a negligible impact on the affected marine mammal species or 
stocks; (3) the authorized takes represent small numbers of marine 
mammals relative to the affected stock abundances; and (4) 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.

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 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 (incidental harassment 
authorizations 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 determined that the 
issuance of the modified LOA continues to qualify to be categorically 
excluded from further NEPA review.

[[Page 5860]]

Endangered Species Act (ESA)

    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 expected to result from 
this activity, and none is authorized herein. Therefore, NMFS has 
determined that formal consultation under section 7 of the ESA is not 
required for this action.

Authorization

    NMFS has issued a modified LOA to the Navy for the potential 
harassment of small numbers of three marine mammal species incidental 
to construction at the S45 Bulkhead at Naval Station Newport in 
Newport, Rhode Island, that includes the previously explained 
mitigation, monitoring, and reporting requirements.

    Dated: January 25, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-01807 Filed 1-27-23; 8:45 am]
BILLING CODE 3510-22-P