Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83001 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 19–310 and 17–105; Report 

No. 3164; FRS 17301] 

Petition for Reconsideration of Action 

in Proceedings 

AGENCY: Federal Communications 

Commission. 

ACTION: Petition for Reconsideration. 

SUMMARY: Petition for Reconsideration 

(Petition) has been filed in the 

Commission’s proceeding by Rachel 

Stilwell and Samantha Gutierrez, on 

behalf of REC Networks, musicFIRST 

Coalition and Future of Music Coalition. 

DATES: Oppositions to the Petition must 

be filed on or before January 5, 2021. 

Replies to an opposition must be filed 

on or before January 15, 2021. 

ADDRESSES: Federal Communications 

Commission, 45 L Street NE, 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Jamile Kadre, Industry Analysis 

Division, Media Bureau, (202) 418– 

2245. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s 

document, Report No. 3164, released 

December 8, 2020. The full text of the 

Petition can be accessed online via the 

Commission’s Electronic Comment 

Filing System at: http://apps.fcc.gov/ 

ecfs/. The Commission will not send a 

Congressional Review Act (CRA) 

submission to Congress or the 

Government Accountability Office 

pursuant to the CRA, 5 U.S.C. 

801(a)(1)(A), because no rules are being 

adopted by the Commission. 

Subject: Amendment of Section 

73.3556 of the Commission’s Rules 

Regarding Duplication of Programming 

on Commonly Owned Radio Stations; 

Modernization of Media Initiative, 

published at 85 FR 67303, October 22, 

2020, in MB Docket Nos. 19–310 and 

17–105. This document is being 

published pursuant to 47 CFR 1.429(e). 

See also 47 CFR 1.4(b)(1) and 1.429(f), 

(g). 

Number of Petitions Filed: 1. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary, Office of the Secretary. 

[FR Doc. 2020–28024 Filed 12–18–20; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 218 

[Docket No. 201207–0329] 

RIN 0648–BJ90 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to U.S. Navy 

Construction at Naval Station Norfolk 

in Norfolk, Virginia 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received a request 

from the U.S. Navy (Navy) for 

authorization to take marine mammals 

incidental to construction activities 

including marine structure 

maintenance, pile replacement, and 

select waterfront improvements at Naval 

Station Norfolk (NAVSTA Norfolk) over 

the course of five years (2021–2026). As 

required by the Marine Mammal 

Protection Act (MMPA), NMFS is 

proposing regulations to govern that 

take, and requests comments on the 

proposed regulations. NMFS will 

consider public comments prior to 

making any final decision on the 

issuance of the requested MMPA 

authorization and agency responses will 

be summarized in the final notice of our 

decision. 

DATES: Comments and information must 

be received no later than January 20, 

2021. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2020–0154, by the following 

method: 

• Electronic submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2020- 

0154, click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Leah Davis, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of the Navy’s application and 

any 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-navyconstruction-naval-station-norfolknorfolk-virginia. In case of problems 

accessing these documents, please call 

the contact listed above (see FOR

FURTHER INFORMATION CONTACT). 

Purpose and Need for Regulatory 

Action 

This proposed rule would establish a 

framework under the authority of the 

MMPA (16 U.S.C. 1361 et seq.) to allow 

for the authorization of take of marine 

mammals incidental to the Navy’s 

construction activities including marine 

structure maintenance, pile 

replacement, and select waterfront 

improvements at NAVSTA Norfolk. 

We received an application from the 

Navy requesting five-year regulations 

and authorization to take multiple 

species of marine mammals. Take 

would occur by Level B harassment 

only incidental to impact and vibratory 

pile driving. Please see Background 

below for definitions of harassment. 

Legal Authority for the Proposed 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 Proposed 

Mitigation section), as well as 

monitoring and reporting requirements. 

Section 101(a)(5)(A) of the MMPA and 

83002 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

the implementing regulations at 50 CFR 

part 216, subpart I provide the legal 

basis for issuing this proposed rule 

containing five-year regulations, and for 

any subsequent letters of authorization 

(LOAs). As directed by this legal 

authority, this proposed rule contains 

mitigation, monitoring, and reporting 

requirements. 

Summary of Major Provisions Within 

the Proposed Rule 

Following is a summary of the major 

provisions of this proposed 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. 

• 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). 

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 promulgation 

of regulations and subsequent issuance 

of an incidental take authorization) 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 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 this proposed rule qualifies 

to be categorically excluded from 

further NEPA review. 

Information in the Navy’s application 

and this document collectively provide 

the environmental information related 

to proposed issuance of these 

regulations and subsequent incidental 

take authorization for public review and 

comment. We will review all comments 

submitted in response to this document 

prior to concluding our NEPA process 

or making a final decision on the 

request for incidental take 

authorization. 

Summary of Request 

In February 2020, NMFS received a 

request from the Navy for a proposed 

rule and LOA to take marine mammals 

incidental to construction activities 

including marine structure 

maintenance, pile replacement, and 

select waterfront improvements at 

NAVSTA Norfolk. NMFS reviewed the 

Navy’s application, and the Navy 

provided an updated version addressing 

NMFS’ questions and comments on May 

22, 2020. The application was deemed 

adequate and complete and published 

for public review and comment on June 

9, 2020 (85 FR 35267). We did not 

receive substantive comments on the 

NOR. 

The Navy requests authorization to 

take a small number of five species of 

marine mammals by Level B harassment 

only. Neither the Navy nor NMFS 

expects serious injury or mortality to 

result from this activity. The proposed 

regulations would be valid for five years 

(2021–2026). 

Description of Proposed Activity 

Overview 

The Navy is proposing to conduct 

construction activities at NAVSTA 

Norfolk on the Naval Station, and at 

nearby facilities off of the lower 

Chesapeake Bay. The Navy’s proposed 

activities include pile replacement at 

the Morale, Welfare and Recreation 

Marina, and installation of two new 

floating docks at the V-area. Both areas 

are located on the Naval Station. The 

Navy also proposes to conduct 

maintenance/repair activities at the 

Naval Station and neighboring Defense 

Fuel Supply Point Craney Island and 

Lambert’s Point Deperming Station (see 

Figure 1). The Navy has indicated 

specific projects where existing needs 

have been identified, as well as 

estimates for expected emergent or 

emergency repairs. The proposed 

project will include both vibratory pile 

driving and removal, and impact pile 

driving (hereafter, collectively referred 

to as ‘‘pile driving’’) over approximately 

574 days over five years. 

Dates and Duration 

The proposed regulations would be 

valid for a period of five years (2021– 

2026). The specified activities may 

occur at any time during the five-year 

period of validity of the proposed 

regulations. The Navy expects pile 

driving across all sites to occur on 

approximately 574 days over the fiveyear duration, with the greatest amount 

of work occurring during Year 1 

(approximately 208 days). The Navy 

plans to conduct all work during 

daylight hours. 

Specific Geographic Region 

NAVSTA Norfolk and the adjacent 

facilities where the Navy has proposed 

to conduct construction (Craney Island 

Fuel Depot and Lambert’s Point 

Deperming Station) are located at the 

confluence of the Elizabeth River, James 

River, Nansemond River, LaFayette 

River, Willoughby Bay, and Chesapeake 

Bay (Figure 1). 

Human-generated sound is a 

significant contributor to the ambient 

acoustic environment surrounding 

NAVSTA Norfolk, as it is located in 

close proximity to shipping channels as 

well as several Port of Virginia facilities 

with frequent, noise-producing vessel 

traffic. NAVSTA Norfolk is located in 

close proximity to shipping channels as 

well as several Port of Virginia facilities 

that, altogether, have an annual average 

of 1,459 vessel calls (Port of Virginia, 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83003 

2019). Other sources of humangenerated underwater sound not 

specific to naval installations include 

sounds from echo sounders on 

commercial and recreational vessels, 

industrial ship noise, and noise from 

recreational boat engines. Additionally, 

on average, maintenance dredging of the 

Navigation Channel occurs every two 

years (USACE and Port of Virginia, 

2018). 

BILLING CODE 3510–22–P 

BILLING CODE 3510–22–C 

Detailed Description of Specific Activity 

The Navy’s existing waterfront 

inspection program identifies fender 

pile system deficiencies and prioritizes, 

designs, and conducts maintenance and 

repairs. The inspection program also 

addresses repairs (emergent projects) 

required due to unforeseen events such 

as weather and vessel incidents. 

Because construction details are 

unknown for all emergent projects, 

potential numbers of fender piles to be 

extracted and installed were estimated 

by Navy waterfront infrastructure 

engineers based on historic emergent 


ER21DE20.016</GPH>
83004 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

maintenance pile driving actions and 

scheduled/forecasted maintenance. 

The proposed action includes 

individual projects (where an existing 

need has been identified) and estimates 

for emergent or emergency repairs. The 

Navy proposes to conduct marine 

structure maintenance, pile 

replacement, and upgrades (MPU) 

activities over a five-year period. The 

Navy would also upgrade waterfront 

facilities at two areas. 

Fender Pile Replacement: NAVSTA 

Norfolk Piers, Craney Island, and 

Lambert’s Point 

All piles that the Navy plans to 

replace in the NAVSTA Norfolk Piers, 

Defense Fuel Supply Point (DFSP) 

Craney Island and Lambert’s Point areas 

are fender piles. Fender piles (or guide 

piles) protect in-water structures from 

direct contact with vessels and are not 

load-bearing. In-water piles may be 

treated timber, pre-stressed concrete, 

high-density polyethylene (HDPE) 

plastic, or hollow core fiberglass. 

Existing timber fender piles would be 

replaced by either composite (HDPE or 

hollow core fiberglass) or timber fender 

piles (depending on availability of 

composite piles). Table 1 includes the 

number and types of fender piles to be 

removed and installed at each location 

during the five years of proposed MPU 

activities. Please see Figure 1–2 and 

Figure 1–3 of the Navy’s application for 

the detailed location of each pier. A full 

list of all pile replacement and removal 

in each year of the overall MPU project 

is provided in Appendix A of the Navy’s 

application. 

TABLE 1—FENDER PILES TO BE REMOVED (12-INCH [IN] TIMBER PILES) AND INSTALLED (16-IN COMPOSITE PILES) AT

NAVSTA NORFOLK PIERS, DFSP CRANEY ISLAND, AND LAMBERT’S POINT

Location Pile type 2021 2022 2023 2024 2025 

NAVSTA Norfolk Piers ........ 12-in Timber ....................... 630 555 100 405 948 

16-in Composite ................. 208 196 0 267 845 

DFSP Craney Island ........... 12-in Timber ....................... 272 0 0 0 0 

16-in Composite ................. 258 0 0 0 0 

Lambert’s Point Deperming 

Station.

12-in Timber ....................... 29 0 0 0 0 

16-in Composite ................. 29 0 0 0 0 

Waterfront Improvements: Morale, 

Welfare, and Recreation (MWR) Marina 

and V-Area 

The MWR Marina features 200 deepwater slips, a boat ramp, and other 

recreational boating facilities (see Figure 

1–2 of the Navy’s application). Upgrades 

to the MWR Marina would consist of the 

replacement of timber load-bearing and 

guide piles with 24-by-24-in (61-by 61- 

cm) square pre-stressed concrete and 

composite or timber fender piles, 

respectively. 

The V-Area currently features a 

bulkhead, a breakwater, two floating 

piers, and a boat ramp (see Figure 1–2 

of the Navy’s application). Upgrades to 

this area would include the construction 

of two additional floating docks, for a 

total addition of approximately 4,095 

square feet (ft2) 380.4 square meters of 

dock space. These docks would be 

constructed using 24-by-24-in (61-by 61- 

cm) square pre-stressed concrete for the 

load-bearing piles and composite or 

timber fender/guide piles. 

For the purposes of this assessment, 

the Navy assumed these upgrades 

would occur in Year 1, with 

maintenance replacements occurring 

thereafter. Concrete piles are anticipated 

to be fully impact driven. Composite 

piles are anticipated to be impact or 

vibratory driven depending on pile 

type—hollow core fiberglass piles may 

be impact or vibratory driven, while 

HDPE piles would be impact driven. 

The number of piles the Navy expects 

to remove and install are included in 

Table 2 and Table 3, respectively. The 

Navy does not plan to drive multiple 

piles concurrently. 

TABLE 2—PILES TO BE REMOVED AT MWR MARINA AND V-AREA

Location Pile size/type Number of 

piles 1

MWR Marina ............................................................................... 12-in timber ................................................................................. 100 

16-in composite .......................................................................... 40 

V-Area ......................................................................................... 16-in composite .......................................................................... 40 

1 Includes piles for initial upgrade/construction as well as maintenance replacements over the five-year project span. 

TABLE 3—PILES TO BE INSTALLED AT MWR MARINA AND V-AREA

Location Pile size/type Number of 

piles 1

MWR Marina ............................................................................... 24-by-24-in square concrete 2 .................................................... 50 

16-in composite 3 ........................................................................ 90 

V-Area ......................................................................................... 24-by-24-in square concrete ...................................................... 50 

16-in composite 3 ........................................................................ 90 

1 Includes piles for initial upgrade/construction as well as maintenance replacements over the five-year project span. 

2 Concrete piles are anticipated to be fully impact driven. 

3The Navy may use timber piles if supply or funding issues prohibit the use of composite piles. However, as noted in Table 8, the sound 

source levels are expected to be the same for both pile types. 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83005 

In extracting piles, the Navy would 

primarily use a vibratory hammer. In 

cases where removal with a vibratory 

hammer is not possible because piles 

break or are damaged, a clamshell may 

be used; a clamshell is a hinged steel 

apparatus that operates similar to a set 

of steel jaws, which grasps the pile as 

the attached crane pulls upward on the 

pile. Lastly, depending on site 

conditions, piles may be removed by 

wrapping the piles with a cable or chain 

and pulling them directly from the 

sediment with a crane. In some cases, 

depending on access and location, piles 

may be cut at or below the mud-line. 

TABLE 4—ESTIMATED NUMBER OF PILE DRIVING DAYS EACH YEAR (574 DAYS TOTAL) 

2021 2022 2023 2024 2025 

Pile Driving Days ................................................................. 208 84 18 76 188 

In addition to pile driving, the Navy 

also plans to conduct pile repair, 

demolition of deck portions, wetwall 

repair, recoating of piles and mooring 

fittings, installation of a passive 

cathodic protection system, repair or 

replacement of pile caps, concrete 

spalling repairs, mooring foundation 

and substructure repair, repair or 

replacement of structural and nonstructural components, rewrapping/ 

replacement of steel cable straps on 

dolphins, and construction access and 

project staging. 

Pile Repair—Several methods of pile 

repair may be used, including stubbing, 

wrapping, pile encapsulation, and 

welding. Pile stubbing is a process in 

which an existing, damaged length of 

timber pile above the ground line is 

removed and replaced with a new 

length of timber pile. All of the above 

repair activities would either occur over 

water or involve only minor in-water 

work, not including pile driving. We do 

not expect these activities to harass 

marine mammals and do not discuss 

them further. 

Demolition of Deck Portions—A wire 

saw or other equipment would be used 

to cut timber or concrete decks that are 

damaged or need replacement into 

sections. Sections would be removed 

with a crane. Debris would be captured 

using debris curtains/sheeting and 

removed from the project area. Deck 

pieces would be hauled to a barge and 

then to an upland disposal site. Large 

concrete deck areas requiring repair 

would be cast-in-place with formwork, 

and repairs of smaller areas would be 

performed using hand trowels. We do 

not expect these activities to harass 

marine mammals and do not discuss 

them further. 

Wetwall Repair—A wetwall is an 

above-water, reinforced concrete 

encasement for a sanitary sewer lift 

station pump. Repairs would occur by 

removing failed and delaminated 

concrete. The reinforced steel 

substructure would then be repaired 

and new concrete applied, either using 

cast-in-place methods or hand trowels. 

We do not expect wetwall repair to 

harass marine mammals and do not 

discuss it further. 

Recoat Piles and Mooring Fittings— 

The Navy is proposing to clean and 

recoat some piles and mooring fittings. 

All coatings would be applied to dry 

surfaces and limited to areas above 

mean sea level (6.5 ft mean lower low 

water). We do not expect these activities 

to harass marine mammals and do not 

discuss them further. 

Passive Cathodic Protection System— 

The Navy is proposing to install a 

passive cathodic protection system 

which is a metallic rod (anode) attached 

to a metal object to protect it from 

corrosion. We do not expect installation 

of the system to harass marine mammals 

and do not discuss it further. 

Repair or Replacement of Pile Caps— 

The Navy is proposing to repair and/or 

replace pile caps. Replacement concrete 

pile caps may be cast-in-place, and the 

framework may be located below mean 

higher high water. However, we do not 

expect repair or replacement of pile 

caps to harass marine mammals, and we 

do not discuss it further. 

Concrete Spalling Repairs—Concrete 

spalling occurs when concrete becomes 

chipped, scaled or flaked. Repair of 

spalled concrete involves removal of 

damaged sections and installation of 

new concrete. We do not expect 

concrete spalling repairs to harass 

marine mammals and do not discuss it 

further. 

Mooring Foundation and Substructure 

Repair—Repairs may involve removal 

and replacement of concrete mooring 

foundations and concrete substructure 

on piers, wharfs, and quay walls. Work 

may include preservation of rebar and 

injection of epoxy, as required. We do 

not expect mooring foundation and 

substructure repair to harass marine 

mammals and do not discuss it further. 

Repair or Replacement of 

Components—Structural and nonstructural components of waterfront 

structures would be repaired or replaced 

as required. Replacement of components 

would involve removal of existing 

components and installation of new 

components. Components may include, 

but are not limited to the following: 

• Timber wave breaks; 

• cross bracing members; 

• fender components, including but 

not limited to camels, chocks, and 

whalers; 

• hand rails; 

• splash guards; 

• safety ladders; 

• electrical conduit and wiring; 

• light poles; 

• guide pile systems for floats (used 

to secure a floating dock or barge to a 

pile but allow the floating dock or barge 

to move up and down with tidal 

changes); and 

• brows (small, movable, bridge-like 

structures used to board or leave a 

vessel) or gangways. 

We do not expect repair or 

replacement of these components to 

harass marine mammals and they are 

not discussed further. 

Rewrap/Replace Steel Cable Straps on 

Dolphins—The Navy is proposing to 

rewrap and/or replace steel cable straps 

that hold dolphin pile groupings 

together. We do not expect these 

activities to harass marine mammals 

and do not discuss them further. 

Construction Access and Project 

Staging—Barges would be used as 

platforms for conducting in-water work 

activities and to haul materials and 

equipment to and from work sites. 

Barges would be moored with spuds or 

anchors. Other than barges, no staging 

sites have been identified. If staging 

areas for equipment and materials are 

identified at a future date, they would 

occur in currently developed lots or 

managed fields. 

Proposed mitigation, monitoring, and 

reporting measures are described in 

detail later in this document (please see 

Proposed Mitigation and Proposed 

Monitoring and Reporting). 

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, 

83006 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

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 5 lists all species or stocks for 

which take is expected and proposed 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 (2020). 

PBR is defined by the MMPA as the 

maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population (as described in NMFS’s 

SARs). While no mortality is anticipated 

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’s stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’s U.S. Atlantic and Gulf of 

Mexico SARs (e.g., Hayes et al. 2020). 

All values presented in Table 5 are the 

most recent available at the time of 

publication and are available in the 

2019 SARs (Hayes et al. 2020). 

TABLE 5—MARINE MAMMAL SPECIES LIKELY TO OCCUR NEAR THE PROJECT AREA

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

Strategic 

(Y/N) 1

Stock abundance (CV, Nmin, 

most recent abundance survey) 2PBR Annual M/SI 3

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Balaenopteridae 

(rorquals): 

Humpback whale ............ Megaptera novaeangliae ...... Gulf of Maine ........................ -,-; N 1,396 (0; 1,380; see SAR) ... 22 12.15 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Delphinidae: 

Bottlenose dolphin .......... Tursiops truncatus ................ Western North Atlantic 

(WNA) Coastal, Northern 

Migratory.

-,-; Y 6,639 (0.41; 4,759; 2011) .... 48 6.1–13.2 

WNA Coastal, Southern Migratory.-,-; Y 3,751 (0.06; 2,353; 2011) .... 23 0–14.3 

Northern North Carolina Estuarine System (NNCES).-,-; Y 823 (0.06; 782; 2013) .......... 7.8 0.8–18.2 

Family Phocoenidae (porpoises): 

Harbor porpoise ............. Phocoena phocoena ............ Gulf of Maine/Bay of Fundy -, -; N 95,543 (0.31; 74,034; see 

SAR).

851 217 

Order Carnivora—Superfamily Pinnipedia 

Family Phocidae (earless 

seals): 

Harbor seal ..................... Phoca vitulina ....................... WNA ..................................... -; N 75,834 (0.15; 66,884, see 

SAR).

2,006 350 

Gray seal ........................ Halichoerus grypus .............. WNA ..................................... -; N 27,131 (0.19, 23,158, see 

SAR).

1,359 5,410 

1Endangered 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-assessmentreports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV 

associated with estimated mortality due to commercial fisheries is presented in some cases. 

As indicated above, all five species 

(with seven managed stocks) in Table 5 

temporally and spatially co-occur with 

the activity to the degree that take is 

reasonably likely to occur, and we have 

proposed authorizing take. While North 

Atlantic right whales (Eubalaena 

glacialis), minke whales (Balaenoptera 

acutorostrata acutorostrata), and fin 

whales (Balaenoptera physalus) have 

been documented in the area, the 

temporal and/or spatial occurrence of 

these whales is such that take is not 

expected to occur, and they are not 

discussed further beyond the 

explanation provided here. 

Based on sighting data and passive 

acoustic studies, the North Atlantic 

right whale could occur off Virginia 

year-round (DoN 2009; Salisbury et al. 

2016). They have also been reported 

seasonally off Virginia during 

migrations in the spring, fall, and winter 

(CeTAP 1981, 1982; Niemeyer et al. 

2008; Kahn et al. 2009; McLellan 2011b, 

2013; Mallette et al. 2016a, 2016b, 2017, 

2018a; Palka et al. 2017; Cotter 2019). 

Right whales are known to frequent the 

coastal waters of the mouth of the 

Chesapeake Bay (Knowlton et al. 2002) 

and the area is a seasonal management 

area (November 1–April 30) mandating 

reduced ship speeds out to 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83007 

approximately 20 nautical miles (37 

kilometers [km]) for the species; 

however, the project area is further 

inside the Bay. 

North Atlantic right whales have 

stranded in Virginia, one each in 2001, 

2002, 2004, 2005: Three during winter 

(February and March) and one in 

summer (September) (Costidis et al. 

2017, 2019). In January 2018, a dead, 

entangled North Atlantic right whale 

was observed floating over 60 miles 

(96.6 km) offshore of Virginia Beach 

(Costidis et al. 2019). All North Atlantic 

right whale strandings in Virginia 

waters have occurred on ocean-facing 

beaches along Virginia Beach and the 

barrier islands seaward of the lower 

Delmarva Peninsula (Costidis et al. 

2017). Due to the low occurrence of 

North Atlantic right whales in the 

project area, NMFS is not proposing to 

authorize take of this species. 

Fin whales have been sighted off 

Virginia (Cetacean and Turtle 

Assessment Program (CeTAP) 1981, 

1982; Swingle et al. 1993; DoN 2009; 

Hyrenbach et al. 2012; Barco 2013; 

Mallette et al. 2016a, b; Aschettino et al. 

2018; Engelhaupt et al. 2017, 2018; 

Cotter 2019), and in the Chesapeake Bay 

(Bailey 1948; CeTAP 1981, 1982; 

Morgan et al. 2002; Barco 2013; 

Aschettino et al. 2018); however, they 

are not likely to occur in the project 

area. Sightings have been documented 

around the Chesapeake Bay Bridge 

Tunnel (CBBT) during the winter 

months (CeTAP 1981, 1982; Barco 2013; 

Aschettino et al. 2018). 

Eleven fin whale strandings have 

occurred off Virginia from 1988 to 2016 

mostly during the winter months of 

February and March, followed by a few 

in the spring and summer months 

(Costidis et al. 2017). Six of the 

strandings occurred in the Chesapeake 

Bay (three on eastern shore; three on 

western shore) with the remaining five 

occurring on the Atlantic coast (Costidis 

et al. 2017. Documented strandings near 

the project area have occurred: February 

2012, a dead fin whale washed ashore 

on Oceanview Beach in Norfolk 

(Swingle et al. 2013); December 2017, a 

live fin whale stranded on a shoal in 

Newport News and died at the site 

(Swingle et al. 2018); February 2014, a 

dead fin whale stranded on a sand bar 

in Pocomoke Sound near Great Fox 

Island, Accomack (Swingle et al. 2015); 

and, March 2007, a dead fin whale near 

Craney Island, in the Elizabeth River, in 

Norfolk (Barco 2013). Only stranded fin 

whales have been documented in the 

project area; no free-swimming fin 

whales have been observed. Due to the 

low occurrence of fin whales in the 

project area, NMFS is not proposing to 

authorize take of this species. 

Minke whales have been sighted off 

Virginia (CeTAP 1981, 1982; Hyrenbach 

et al. 2012; Barco 2013; Mallette et al. 

2016a, b; McLellan 2017; Engelhaupt et 

al. 2017, 2018; Cotter 2019), near the 

CBBT (Aschettino et al. 2018), but 

sightings in the project area are from 

strandings (Jensen and Silber 2004; 

Barco 2013; DoN 2009). In August 1994, 

a ship strike incident involved a minke 

whale in Hampton Roads (Jensen and 

Silber 2004; Barco 2013). It was reported 

that the animal was struck offshore and 

was carried inshore on the bow of a ship 

(DoN 2009). Twelve strandings of minke 

whales have occurred in Virginia waters 

from 1988 to 2016 (Costidis et al. 2017). 

There have been six minke whale 

stranding from 2017 through 2020 in 

Virginia waters. Because all known 

minke whale occurrences in the project 

area are due to strandings, NMFS is not 

proposing to authorize take of this 

species. 

Humpback Whale 

Humpback whales are distributed 

worldwide in all major oceans and most 

seas. Most humpback whale sightings 

are in nearshore and continental shelf 

waters; however, humpback whales 

frequently travel through deep oceanic 

waters during migration (Calambokidis 

et al. 2001; Clapham, P.J. and Mattila, 

D.K., 1990). Prior to 2016, humpback 

whales were listed under the ESA as an 

endangered species worldwide. 

Following a 2015 global status review 

(Bettridge et al. 2015), NMFS 

established 14 DPSs with different 

listing statuses (81 FR 62259; September 

8, 2016) pursuant to the ESA. 

Humpback whales in the project area 

are expected to be from the West Indies 

DPS, which consists of the whales 

whose breeding range includes the 

Atlantic margin of the Antilles from 

Cuba to northern Venezuela, and whose 

feeding range primarily includes the 

Gulf of Maine, eastern Canada, and 

western Greenland, was delisted. 

Bettridge et al. (2003) estimated the size 

of the West Indies DPS at 12,312 (95% 

CI 8,688–15,954) whales in 2004–05, 

which is consistent with previous 

population estimates of approximately 

10,000–11,000 whales (Stevick et al. 

2003; Smith et al. 1999) and the 

increasing trend for the West Indies DPS 

(Bettridge et al. 2015). 

Although humpback whales are 

migratory between feeding areas and 

calving areas, individual variability in 

the timing of migrations may result in 

the presence of individuals in highlatitude areas throughout the year 

(Straley, 1990). Records of humpback 

whales off the U.S. mid-Atlantic coast 

(New Jersey to North Carolina) from 

January through March suggest these 

waters may represent a supplemental 

winter feeding ground used by juvenile 

and mature humpback whales of U.S. 

and Canadian North Atlantic stocks 

(LaBrecque et al. 2015). 

Humpback whales are most likely to 

occur near the mouth of the Chesapeake 

Bay and coastal waters of Virginia Beach 

between January and March; however, 

they could be found in the area yearround, based on shipboard sighting and 

stranding data (Barco and Swingle, 

2014; Aschettino et al. 2015; 2016; 2017; 

2018). Photo-identification data support 

the repeated use of the mid-Atlantic 

region by individual humpback whales. 

Results of the vessel surveys show site 

fidelity in the survey area for some 

individuals and a high level of 

occurrence within shipping channels— 

an important high-use area by both the 

Navy and commercial traffic (Aschettino 

et al. 2015; 2016; 2017; 2018). Nearshore 

surveys conducted in early 2015 

reported 61 individual humpback whale 

sightings, and 135 individual humpback 

whale sightings in late 2015 through 

May 2016 (Aschettino et al. 2016). 

Subsequent surveys confirmed the 

occurrence of humpback whales in the 

nearshore survey area: 248 individuals 

were detected in 2016–2017 surveys 

(Aschettino et al. 2017), 32 individuals 

were detected in 2017–2018 surveys 

(Aschettino et al. 2018), and 80 

individuals were detected in 2019 

surveys (Aschettino et al. 2019). 

Sightings in the Hampton Roads area in 

the vicinity of NAVSTA Norfolk were 

reported in nearshore surveys and 

through tracking of satellite-tagged 

whales in 2016, 2017 and 2019. The 

numbers of whales detected, most of 

which were juveniles, reflect the 

varying level of survey effort and 

changes in survey objectives from year 

to year, and do not indicate abundance 

trends over time. 

Bottlenose Dolphin 

Along the U.S. East Coast and 

northern Gulf of Mexico, the bottlenose 

dolphin stock structure is well studied. 

There are currently 53 management 

stocks identified by NMFS in the 

western North Atlantic and Gulf of 

Mexico, including oceanic, coastal, and 

estuarine stocks (Hayes et al. 2017; 

Waring et al. 2015, 2016). 

There are two morphologically and 

genetically distinct bottlenose dolphin 

morphotypes (distinguished by physical 

differences) described as coastal and 

offshore forms (Duffield et al. 1983; 

Duffield, 1986). The offshore form is 

larger in total length and skull length, 

83008 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

and has wider nasal bones than the 

coastal form. Both inhabit waters in the 

western North Atlantic Ocean and Gulf 

of Mexico (Curry and Smith, 1997; 

Hersh and Duffield, 1990; Mead and 

Potter, 1995) along the U.S. Atlantic 

coast. The coastal morphotype of 

bottlenose dolphin is continuously 

distributed along the Atlantic coast 

south of Long Island, New York, around 

the Florida peninsula, and along the 

Gulf of Mexico coast. This type typically 

occurs in waters less than 25 meters 

deep (Waring et al. 2015). The range of 

the offshore bottlenose dolphin includes 

waters beyond the continental slope 

(Kenney R.D., 1990), and offshore 

bottlenose dolphins may move between 

the Gulf of Mexico and the Atlantic 

(Wells et al. 1999). 

Two coastal stocks are likely to be 

present in the MPU project area: 

Western North Atlantic Northern 

Migratory Coastal stock and Western 

North Atlantic Southern Migratory 

Coastal stock. Additionally, the 

Northern North Carolina Estuarine 

System stock may occur in the project 

area. 

Bottlenose dolphins are the most 

abundant marine mammal along the 

Virginia coast and within the 

Chesapeake Bay, typically traveling in 

groups of 2 to 15 individuals, but 

occasionally in groups of over 100 

individuals (Engelhaupt et al. 2014; 

2015; 2016). Bottlenose dolphins of the 

Western North Atlantic Northern 

Migratory Coastal stock winter along the 

coast of North Carolina and migrate as 

far north as Long Island, New York, in 

the summer. They are rarely found 

north of North Carolina in the winter 

(NMFS, 2018a). The Western North 

Atlantic Southern Migratory Coastal 

stock occurs in waters of southern North 

Carolina from October to December, 

moving south during winter months and 

north to North Carolina during spring 

months. During July and August, the 

Western North Atlantic Southern 

Migratory Coastal stock is presumed to 

occupy coastal waters north of Cape 

Lookout, North Carolina, to the eastern 

shore of Virginia (NMFS, 2018a). It is 

possible that these animals also occur 

inside the Chesapeake Bay and in 

nearshore coastal waters. The North 

Carolina Estuarine System stock 

dolphins may also occur in the 

Chesapeake Bay during July and August 

(NMFS, 2018a). 

Vessel surveys conducted along 

coastal and offshore transects from 

NAVSTA Norfolk to Virginia Beach in 

most months from August 2012 to 

August 2015 reported bottlenose 

dolphins throughout the survey area, 

including the vicinity of NAVSTA 

Norfolk (Engelhaupt et al. 2014; 2015; 

2016). The final results from this project 

confirmed earlier findings that 

bottlenose dolphins are common in the 

study area, with highest densities in the 

coastal waters in summer and fall 

months. However, bottlenose dolphins 

do not completely leave this area during 

colder months, with approximately 

200–300 individuals still present in 

winter and spring months (Engelhaupt 

et al. 2016). 

Harbor Porpoise 

Harbor porpoises inhabit cool 

temperate-to-subpolar waters, often 

where prey aggregations are 

concentrated (Watts and Gaskin, 1985). 

Thus, they are frequently found in 

shallow waters, most often near shore, 

but they sometimes move into deeper 

offshore waters. Harbor porpoises are 

rarely found in waters warmer than 63 

degrees Fahrenheit (17 degrees Celsius) 

(Read 1999) and closely follow the 

movements of their primary prey, 

Atlantic herring (Gaskin 1992). 

In the western North Atlantic, harbor 

porpoise range from Cumberland Sound 

on the east coast of Baffin Island, 

southeast along the eastern coast of 

Labrador to Newfoundland and the Gulf 

of St. Lawrence, then southwest to about 

34 degrees North on the coast of North 

Carolina (Waring et al. 2016). During 

winter (January to March), intermediate 

densities of harbor porpoises can be 

found in waters off New Jersey to North 

Carolina, and lower densities are found 

in waters off New York to New 

Brunswick, Canada (Waring et al. 2016). 

Harbor porpoises sighted off the midAtlantic during winter include 

porpoises from other western North 

Atlantic populations (Rosel et al. 1999). 

There does not appear to be a 

temporally coordinated migration or a 

specific migratory route to and from the 

Bay of Fundy region (Waring et al. 

2016). During fall (October to December) 

and spring (April to June), harbor 

porpoises are widely dispersed from 

New Jersey to Maine, with lower 

densities farther north and south 

(LaBrecque et al. 2015). 

Based on stranding reports, passive 

acoustic recorders, and shipboard 

surveys, harbor porpoise occur in 

coastal waters primarily in winter and 

spring months, but there is little 

information on their presence in the 

Chesapeake Bay. They do not appear to 

be abundant in the NAVSTA Norfolk 

area in most years, but this is 

confounded by wide variations in 

stranding occurrences over the past 

decade. 

Harbor Seal 

The Western North Atlantic stock of 

harbor seals occurs in the MPU project 

area. Harbor seal distribution along the 

U.S. Atlantic coast has shifted in recent 

years, with an increased number of seals 

reported from southern New England to 

the mid-Atlantic region (DiGiovanni et 

al. 2011; Hayes et al. 2017; Kenney R. 

D. 2019; Waring et al. 2016). Regular 

sightings of seals in Virginia have 

become a common occurrence in winter 

and early spring (Costidis et al. 2019). 

Winter haulout sites for harbor seals 

have been documented in the 

Chesapeake Bay at the CBBT, on the 

Virginia Eastern Shore, and near Oregon 

Inlet, North Carolina (Waring et al. 

2016; Rees et al. 2016; Jones et al. 2018). 

Harbor seals regularly haul out on 

rocks around the portal islands of the 

CBBT and on mud flats on the nearby 

southern tip of the Eastern Shore from 

December through April (Rees et al. 

2016; Jones et al. 2018). Seals captured 

in 2018 on the Eastern Shore and tagged 

with satellite-tracked tags that lasted 

from 2 to 5 months spent at least 60 

days in Virginia waters before departing 

the area. All tagged seals returned 

regularly to the capture site while in 

Virginia waters, but individuals utilized 

offshore and Chesapeake Bay waters to 

different extents (Ampela et al. 2019). 

The area that was utilized most heavily 

was near the Eastern Shore capture site, 

but some seals ranged into the 

Chesapeake Bay. 

Gray Seal 

The Western North Atlantic stock of 

gray seal occurs in the project area. The 

western North Atlantic stock is centered 

in Canadian waters, including the Gulf 

of St. Lawrence and the Atlantic coasts 

of Nova Scotia, Newfoundland, and 

Labrador, Canada, and the northeast 

U.S. continental shelf (Hayes et al. 

2017). Gray seals range south into the 

northeastern United States, with 

strandings and sightings as far south as 

North Carolina (Hammill et al. 1998; 

Waring et al. 2004). Gray seal 

distribution along the U.S. Atlantic 

coast has shifted in recent years, with an 

increased number of seals reported in 

southern New England (DiGiovanni et 

al. 2011; Kenney R.D., 2019; Waring et 

al. 2016). Recent sightings included a 

gray seal in the lower Chesapeake Bay 

during the winter of 2014 to 2015 (Rees 

et al. 2016). Along the coast of the 

United States, gray seals are known to 

pup at three or more colonies in 

Massachusetts and Maine. 

Gray seals are uncommon in Virginia 

and in the Chesapeake Bay. Only 15 

gray seal strandings were documented 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83009 

in Virginia from 1988 through 2013 

(Barco and Swingle, 2014). They are 

rarely found resting on the rocks around 

the portal islands of the CBBT from 

December through April alongside 

harbor seals. Seal observation surveys 

conducted at the CBBT recorded one 

gray seal in each of the 2014/2015 and 

2015/2016 seasons while no gray seals 

were reported during the 2016/2017 and 

2017/2018 seasons (Rees et al. 2016, 

Jones et al. 2018). Sightings have been 

reported off Virginia and near the 

project area during the winter and 

spring (Barco 2013; Rees et al. 2016; 

Jones et al. 2018; Ampela et al. 2019). 

Unusual Mortality Events 

An unusual mortality event (UME) is 

defined under Section 410(6) of the 

MMPA as a stranding that is 

unexpected; involves a significant dieoff of any marine mammal population; 

and demands immediate response. 

Currently, ongoing UME investigations 

are underway for pinnipeds along the 

Northeast coast, and humpback whales 

along the Atlantic coast. 

Northeast Pinniped UME 

Since July 2018, elevated numbers of 

harbor seal and gray seal mortalities 

have occurred across Maine, New 

Hampshire and Massachusetts. This 

event has been declared an UME. 

Additionally, seals showing clinical 

signs have been stranding as far south 

as Virginia, although not in elevated 

numbers; therefore, the UME 

investigation now encompasses all seal 

strandings from Maine to Virginia. 

Lastly, while take is not proposed for 

these species in this proposed rule, ice 

seals (harp and hooded seals) have also 

started stranding with clinical signs, 

again not in elevated numbers, and 

those two seal species have also been 

added to the UME investigation. 

Additional information is available at 

https://www.fisheries.noaa.gov/newengland-mid-atlantic/marine-lifedistress/2018-2020-pinniped-unusualmortality-event-along. 

Atlantic Humpback Whale UME 

Since January 2016, elevated 

humpback whale mortalities have 

occurred along the Atlantic coast from 

Maine through Florida. This event has 

been declared an UME. A portion of the 

whales have shown evidence of premortem vessel strike; however, this 

finding is not consistent across all 

whales examined, and additional 

research is needed. Additional 

information is available at https://

www.fisheries.noaa.gov/national/ 

marine-life-distress/2016-2020- 

humpback-whale-unusual-mortalityevent-along-atlantic-coast. 

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 lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 6. 

TABLE 6—MARINE MAMMAL HEARING GROUPS

[NMFS, 2018] 

Hearing group Generalized hearing range * 

Low-frequency (LF) cetaceans (baleen whales) ................................................................................................... 7 Hz to 35 kHz 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ......................... 150 Hz to 160 kHz 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus 

cruciger & L. australis).

275 Hz to 160 kHz 

Phocid pinnipeds (PW) (underwater) (true seals) ................................................................................................. 50 Hz to 86 kHz 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ............................................................................ 60 Hz to 39 kHz 

* 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 

(Hemila ̈ 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. Five marine 

mammal species (three cetacean and 

two phocid pinniped species) have the 

reasonable potential to co-occur with 

the proposed construction activities. 

Please refer to Table 5. Of the cetacean 

species that may be present, one is 

classified as a low-frequency cetacean 

(i.e., humpback whale) one is classified 

as a mid-frequency cetacean (i.e., 

bottlenose dolphin), and one is 

classified as a high-frequency cetacean 

(i.e., harbor porpoise). 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

This section includes a summary and 

discussion of the ways that components 

of the specified activity may impact 

marine mammals and their habitat. The 

Estimated Take section later 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 Proposed 

Mitigation 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 

83010 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

to impact marine mammal species or 

stocks. 

Acoustic effects on marine mammals 

during the specified activity can occur 

from vibratory and impact pile driving. 

The effects of underwater noise from the 

Navy’s proposed activities have the 

potential to result in Level A and Level 

B harassment of marine mammals in the 

action area. 

Description of Sound Sources 

The marine soundscape is comprised 

of both ambient and anthropogenic 

sounds. Ambient sound is defined as 

the all-encompassing sound in a given 

place and is usually a composite of 

sound from many sources both near and 

far. The sound level of an area is 

defined by the total acoustical energy 

being generated by known and 

unknown sources. These sources may 

include physical (e.g., waves, wind, 

precipitation, earthquakes, ice, 

atmospheric sound), biological (e.g., 

sounds produced by marine mammals, 

fish, and invertebrates), and 

anthropogenic sound (e.g., vessels, 

dredging, aircraft, construction). 

The sum of the various natural and 

anthropogenic sound sources at any 

given location and time—which 

comprise ‘‘ambient’’ or ‘‘background’’ 

sound—depends not only on the source 

levels (as determined by current 

weather conditions and levels of 

biological and shipping activity) but 

also on the ability of sound to propagate 

through the environment. In turn, sound 

propagation is dependent on the 

spatially and temporally varying 

properties of the water column and sea 

floor, and is frequency-dependent. As a 

result of the dependence on a large 

number of varying factors, ambient 

sound levels can be expected to vary 

widely over both coarse and fine spatial 

and temporal scales. Sound levels at a 

given frequency and location can vary 

by 10–20 dB from day to day 

(Richardson et al. 1995). The result is 

that, depending on the source type and 

its intensity, sound from the specified 

activity may be a negligible addition to 

the local environment or could form a 

distinctive signal that may affect marine 

mammals. 

In-water construction activities 

associated with the project would 

include impact pile driving, vibratory 

pile driving, and vibratory pile removal. 

The sounds produced by these activities 

fall into one of two general sound types: 

Impulsive and non-impulsive. 

Impulsive sounds (e.g., explosions, 

gunshots, sonic booms, impact pile 

driving) are typically transient, brief 

(less than 1 second), broadband, and 

consist of high peak sound pressure 

with rapid rise time and rapid decay 

(ANSI 1986; NIOSH 1998; ANSI 2005; 

NMFS 2018a). Non-impulsive sounds 

(e.g. aircraft, machinery operations such 

as drilling or dredging, vibratory pile 

driving, and active sonar systems) can 

be broadband, narrowband or tonal, 

brief or prolonged (continuous or 

intermittent), and typically do not have 

the high peak sound pressure with raid 

rise/decay time that impulsive sounds 

do (ANSI 1995; NIOSH 1998; NMFS 

2018a). The distinction between these 

two sound types is important because 

they have differing potential to cause 

physical effects, particularly with regard 

to hearing (e.g., Ward 1997 in Southall 

et al. 2007). 

Two types of pile hammers would be 

used on this project: Impact and 

vibratory. Impact hammers operate by 

repeatedly dropping a heavy piston onto 

a pile to drive the pile into the substrate. 

Sound generated by impact hammers is 

characterized by rapid rise times and 

high peak levels, a potentially injurious 

combination (Hastings and Popper 

2005). Vibratory hammers install piles 

by vibrating them and allowing the 

weight of the hammer to push them into 

the sediment. Vibratory hammers 

produce significantly less sound than 

impact hammers. Peak sound pressure 

levels (SPLs) may be 180 dB or greater, 

but are generally 10 to 20 dB lower than 

SPLs generated during impact pile 

driving of the same-sized pile (Oestman 

et al. 2009). Rise time is slower, 

reducing the probability and severity of 

injury, and sound energy is distributed 

over a greater amount of time (Nedwell 

and Edwards 2002; Carlson et al. 2005). 

The likely or possible impacts of the 

Navy’s proposed activity on marine 

mammals could involve both nonacoustic and acoustic stressors. 

Potential non-acoustic stressors could 

result from the physical presence of the 

equipment and personnel; however, any 

impacts to marine mammals are 

expected to primarily be acoustic in 

nature. Acoustic stressors include 

effects of heavy equipment operation 

during pile driving. 

Acoustic Impacts 

The introduction of anthropogenic 

noise into the aquatic environment from 

pile driving is the primary means by 

which marine mammals may be 

harassed from the Navy’s specified 

activity. In general, animals exposed to 

natural or anthropogenic sound may 

experience physical and psychological 

effects, ranging in magnitude from none 

to severe (Southall et al. 2007). In 

general, exposure to pile driving noise 

has the potential to result in auditory 

threshold shifts and behavioral 

reactions (e.g., avoidance, temporary 

cessation of foraging and vocalizing, 

changes in dive behavior). Exposure to 

anthropogenic noise can also lead to 

non-observable physiological responses 

such an increase in stress hormones. 

Additional noise in a marine mammal’s 

habitat can mask acoustic cues used by 

marine mammals to carry out daily 

functions such as communication and 

predator and prey detection. The effects 

of pile driving noise on marine 

mammals are dependent on several 

factors, including, but not limited to, 

sound type (e.g., impulsive vs. nonimpulsive), the species, age and sex 

class (e.g., adult male vs. mom with 

calf), duration of exposure, the distance 

between the pile and the animal, 

received levels, behavior at time of 

exposure, and previous history with 

exposure (Wartzok et al. 2004; Southall 

et al. 2007). Here we discuss physical 

auditory effects (threshold shifts) 

followed by behavioral effects and 

potential impacts on habitat. 

NMFS defines a noise-induced 

threshold shift (TS) as a change, usually 

an increase, in the threshold of 

audibility at a specified frequency or 

portion of an individual’s hearing range 

above a previously established reference 

level (NMFS 2018). The amount of 

threshold shift is customarily expressed 

in dB. A TS can be permanent or 

temporary. As described in NMFS 

(2018), there are numerous factors to 

consider when examining the 

consequence of TS, including, but not 

limited to, the signal temporal pattern 

(e.g., impulsive or non-impulsive), 

likelihood an individual would be 

exposed for a long enough duration or 

to a high enough level to induce a TS, 

the magnitude of the TS, time to 

recovery (seconds to minutes or hours to 

days), the frequency range of the 

exposure (i.e., spectral content), the 

hearing and vocalization frequency 

range of the exposed species relative to 

the signal’s frequency spectrum (i.e., 

how an animal uses sound within the 

frequency band of the signal; e.g., 

Kastelein et al. 2014), and the overlap 

between the animal and the source (e.g., 

spatial, temporal, and spectral). 

Permanent Threshold Shift (PTS)— 

NMFS defines PTS as a permanent, 

irreversible increase in the threshold of 

audibility at a specified frequency or 

portion of an individual’s hearing range 

above a previously established reference 

level (NMFS 2018). Available data from 

humans and other terrestrial mammals 

indicate that a 40 dB threshold shift 

approximates PTS onset (see Ward et al. 

1958, 1959; Ward 1960; Kryter et al. 

1966; Miller 1974; Ahroon et al. 1996; 

Henderson et al. 2008). PTS levels for 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83011 

marine mammals are estimates, as with 

the exception of a single study 

unintentionally inducing PTS in a 

harbor seal (Kastak et al. 2008), there are 

no empirical data measuring PTS in 

marine mammals largely due to the fact 

that, for various ethical reasons, 

experiments involving anthropogenic 

noise exposure at levels inducing PTS 

are not typically pursued or authorized 

(NMFS 2018). 

Temporary Threshold Shift (TTS)— 

TTS is a temporary, reversible increase 

in the threshold of audibility at a 

specified frequency or portion of an 

individual’s hearing range above a 

previously established reference level 

(NMFS 2018). Based on data from 

cetacean TTS measurements (see 

Southall et al. 2007), a TTS of 6 dB is 

considered the minimum threshold shift 

clearly larger than any day-to-day or 

session-to-session variation in a 

subject’s normal hearing ability 

(Schlundt et al. 2000; Finneran et al. 

2000, 2002). As described in Finneran 

(2015), marine mammal studies have 

shown the amount of TTS increases 

with cumulative sound exposure level 

(SELcum) in an accelerating fashion: At 

low exposures with lower SELcum, the 

amount of TTS is typically small and 

the growth curves have shallow slopes. 

At exposures with higher SELcum, the 

growth curves become steeper and 

approach linear relationships with the 

noise SEL. 

Depending on the degree (elevation of 

threshold in dB), duration (i.e., recovery 

time), and frequency range of TTS, and 

the context in which it is experienced, 

TTS can have effects on marine 

mammals ranging from discountable to 

serious (similar to those discussed in 

auditory masking, below). For example, 

a marine mammal may be able to readily 

compensate for a brief, relatively small 

amount of TTS in a non-critical 

frequency range that takes place during 

a time when the animal is traveling 

through the open ocean, where ambient 

noise is lower and there are not as many 

competing sounds present. 

Alternatively, a larger amount and 

longer duration of TTS sustained during 

a time when communication is critical 

for successful mother/calf interactions 

could have more serious impacts. We 

note that reduced hearing sensitivity as 

a simple function of aging has been 

observed in marine mammals, as well as 

humans and other taxa (Southall et al. 

2007), so we can infer that strategies 

exist for coping with this condition to 

some degree, though likely not without 

cost. 

Currently, TTS data only exist for four 

species of cetaceans (bottlenose 

dolphin, beluga whale (Delphinapterus 

leucas), harbor porpoise, and Yangtze 

finless porpoise (Neophocoena 

asiaeorientalis)) and five species of 

pinnipeds exposed to a limited number 

of sound sources (i.e., mostly tones and 

octave-band noise) in laboratory settings 

(Finneran 2015). TTS was not observed 

in trained spotted (Phoca largha) and 

ringed (Pusa hispida) seals exposed to 

impulsive noise at levels matching 

previous predictions of TTS onset 

(Reichmuth et al. 2016). In general, 

harbor seals and harbor porpoises have 

a lower TTS onset than other measured 

pinniped or cetacean species (Finneran 

2015). Additionally, the existing marine 

mammal TTS data come from a limited 

number of individuals within these 

species. No data are available on noiseinduced hearing loss for mysticetes. For 

summaries of data on TTS in marine 

mammals or for further discussion of 

TTS onset thresholds, please see 

Southall et al. (2007), Finneran and 

Jenkins (2012), Finneran (2015), and 

Table 5 in NMFS (2018). Installing piles 

requires a combination of impact pile 

driving and vibratory pile driving. For 

this project, these activities would not 

occur at the same time and there would 

be pauses in activities producing the 

sound during each day. Given these 

pauses and that many marine mammals 

are likely moving through the 

ensonified area and not remaining for 

extended periods of time, the potential 

for TS declines. 

Behavioral Harassment—Exposure to 

noise from pile driving and removal also 

has the potential to behaviorally disturb 

marine mammals. Available studies 

show wide variation in response to 

underwater sound; therefore, it is 

difficult to predict specifically how any 

given sound in a particular instance 

might affect marine mammals 

perceiving the signal. If a marine 

mammal does react briefly to an 

underwater sound by changing its 

behavior or moving a small distance, the 

impacts of the change are unlikely to be 

significant to the individual, let alone 

the stock or population. However, if a 

sound source displaces marine 

mammals from an important feeding or 

breeding area for a prolonged period, 

impacts on individuals and populations 

could be significant (e.g., Lusseau and 

Bejder 2007; Weilgart 2007; NRC 2005). 

Disturbance may result in changing 

durations of surfacing and dives, 

number of blows per surfacing, or 

moving direction and/or speed; 

reduced/increased vocal activities; 

changing/cessation of certain behavioral 

activities (such as socializing or 

feeding); visible startle response or 

aggressive behavior (such as tail/fluke 

slapping or jaw clapping); avoidance of 

areas where sound sources are located. 

Pinnipeds may increase their haul out 

time, possibly to avoid in-water 

disturbance (Thorson and Reyff 2006). 

Behavioral responses to sound are 

highly variable and context-specific and 

any reactions depend on numerous 

intrinsic and extrinsic factors (e.g., 

species, state of maturity, experience, 

current activity, reproductive state, 

auditory sensitivity, time of day), as 

well as the interplay between factors 

(e.g., Richardson et al. 1995; Wartzok et 

al. 2003; Southall et al. 2007; Weilgart 

2007; Archer et al. 2010). Behavioral 

reactions can vary not only among 

individuals but also within an 

individual, depending on previous 

experience with a sound source, 

context, and numerous other factors 

(Ellison et al. 2012), and can vary 

depending on characteristics associated 

with the sound source (e.g., whether it 

is moving or stationary, number of 

sources, distance from the source). In 

general, pinnipeds seem more tolerant 

of, or at least habituate more quickly to, 

potentially disturbing underwater sound 

than do cetaceans, and generally seem 

to be less responsive to exposure to 

industrial sound than most cetaceans. 

Please see Appendices B–C of Southall 

et al. (2007) for a review of studies 

involving marine mammal behavioral 

responses to sound. 

Disruption of feeding behavior can be 

difficult to correlate with anthropogenic 

sound exposure, so it is usually inferred 

by observed displacement from known 

foraging areas, the appearance of 

secondary indicators (e.g., bubble nets 

or sediment plumes), or changes in dive 

behavior. As for other types of 

behavioral response, the frequency, 

duration, and temporal pattern of signal 

presentation, as well as differences in 

species sensitivity, are likely 

contributing factors to differences in 

response in any given circumstance 

(e.g., Croll et al. 2001; Nowacek et al. 

2004; Madsen et al. 2006; Yazvenko et 

al. 2007). A determination of whether 

foraging disruptions incur fitness 

consequences would require 

information on or estimates of the 

energetic requirements of the affected 

individuals and the relationship 

between prey availability, foraging effort 

and success, and the life history stage of 

the animal. 

Stress responses—An animal’s 

perception of a threat may be sufficient 

to trigger stress responses consisting of 

some combination of behavioral 

responses, autonomic nervous system 

responses, neuroendocrine responses, or 

immune responses (e.g., Seyle 1950; 

Moberg 2000). In many cases, an 

animal’s first and sometimes most 

83012 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

economical (in terms of energetic costs) 

response is behavioral avoidance of the 

potential stressor. Autonomic nervous 

system responses to stress typically 

involve changes in heart rate, blood 

pressure, and gastrointestinal activity. 

These responses have a relatively short 

duration and may or may not have a 

significant long-term effect on an 

animal’s fitness. 

Neuroendocrine stress responses often 

involve the hypothalamus-pituitaryadrenal system. Virtually all 

neuroendocrine functions that are 

affected by stress—including immune 

competence, reproduction, metabolism, 

and behavior—are regulated by pituitary 

hormones. Stress-induced changes in 

the secretion of pituitary hormones have 

been implicated in failed reproduction, 

altered metabolism, reduced immune 

competence, and behavioral disturbance 

(e.g., Moberg 1987; Blecha 2000). 

Increases in the circulation of 

glucocorticoids are also equated with 

stress (Romano et al. 2004). 

The primary distinction between 

stress (which is adaptive and does not 

normally place an animal at risk) and 

‘‘distress’’ is the cost of the response. 

During a stress response, an animal uses 

glycogen stores that can be quickly 

replenished once the stress is alleviated. 

In such circumstances, the cost of the 

stress response would not pose serious 

fitness consequences. However, when 

an animal does not have sufficient 

energy reserves to satisfy the energetic 

costs of a stress response, energy 

resources must be diverted from other 

functions. This state of distress will last 

until the animal replenishes its 

energetic reserves sufficient to restore 

normal function. 

Relationships between these 

physiological mechanisms, animal 

behavior, and the costs of stress 

responses are well studied through 

controlled experiments and for both 

laboratory and free-ranging animals 

(e.g., Holberton et al. 1996; Hood et al. 

1998; Jessop et al. 2003; Krausman et al. 

2004; Lankford et al. 2005). Stress 

responses due to exposure to 

anthropogenic sounds or other stressors 

and their effects on marine mammals 

have also been reviewed (Fair and 

Becker 2000; Romano et al. 2002b) and, 

more rarely, studied in wild populations 

(e.g., Romano et al. 2002a). For example, 

Rolland et al. (2012) found that noise 

reduction from reduced ship traffic in 

the Bay of Fundy was associated with 

decreased stress in North Atlantic right 

whales. These and other studies lead to 

a reasonable expectation that some 

marine mammals will experience 

physiological stress responses upon 

exposure to acoustic stressors and that 

it is possible that some of these would 

be classified as ‘‘distress.’’ In addition, 

any animal experiencing TTS would 

likely also experience stress responses 

(NRC, 2003), however distress is an 

unlikely result of this project based on 

observations of marine mammals during 

previous, similar projects in the area. 

Masking—Sound can disrupt behavior 

through masking, or interfering with, an 

animal’s ability to detect, recognize, or 

discriminate between acoustic signals of 

interest (e.g., those used for intraspecific 

communication and social interactions, 

prey detection, predator avoidance, 

navigation) (Richardson et al. 1995). 

Masking occurs when the receipt of a 

sound is interfered with by another 

coincident sound at similar frequencies 

and at similar or higher intensity, and 

may occur whether the sound is natural 

(e.g., snapping shrimp, wind, waves, 

precipitation) or anthropogenic (e.g., 

pile driving, shipping, sonar, seismic 

exploration) in origin. The ability of a 

noise source to mask biologically 

important sounds depends on the 

characteristics of both the noise source 

and the signal of interest (e.g., signal-tonoise ratio, temporal variability, 

direction), in relation to each other and 

to an animal’s hearing abilities (e.g., 

sensitivity, frequency range, critical 

ratios, frequency discrimination, 

directional discrimination, age or TTS 

hearing loss), and existing ambient 

noise and propagation conditions. 

Masking of natural sounds can result 

when human activities produce high 

levels of background sound at 

frequencies important to marine 

mammals. Conversely, if the 

background level of underwater sound 

is high (e.g., on a day with strong wind 

and high waves), an anthropogenic 

sound source would not be detectable as 

far away as would be possible under 

quieter conditions and would itself be 

masked. 

Airborne Acoustic Effects—Although 

pinnipeds are known to haul-out 

regularly on man-made objects in the 

vicinity of some of the potential project 

sites, we believe that incidents of take 

resulting solely from airborne sound are 

unlikely. There is a possibility that an 

animal could surface in-water, but with 

head out, within the area in which 

airborne sound exceeds relevant 

thresholds and thereby be exposed to 

levels of airborne sound that we 

associate with harassment, but any such 

occurrence would likely be accounted 

for in our estimation of incidental take 

from underwater sound. Therefore, 

authorization of incidental take 

resulting from airborne sound for 

pinnipeds is not warranted, and 

airborne sound is not discussed further 

here. Cetaceans are not expected to be 

exposed to airborne sounds that would 

result in harassment as defined under 

the MMPA. 

Marine Mammal Habitat Effects 

The Navy’s construction activities 

could have localized, temporary impacts 

on marine mammal habitat by 

increasing in-water sound pressure 

levels and slightly decreasing water 

quality. Construction activities are of 

short duration and would likely have 

temporary impacts on marine mammal 

habitat through increases in underwater 

sound. Increased noise levels may affect 

acoustic habitat (see masking discussion 

above) and adversely affect marine 

mammal prey in the vicinity of the 

project area (see discussion below). 

During impact and vibratory pile 

driving, elevated levels of underwater 

noise would ensonify the project area 

where both fish and mammals may 

occur and could affect foraging success. 

Additionally, marine mammals may 

avoid the area during construction, 

however, displacement due to noise is 

expected to be temporary and is not 

expected to result in long-term effects to 

the individuals or populations. 

A temporary and localized increase in 

turbidity near the seafloor would occur 

in the immediate area surrounding the 

area where piles are installed (and 

removed in the case of the temporary 

piles). The sediments on the sea floor 

will be disturbed during pile driving; 

however, suspension will be brief and 

localized and is unlikely to measurably 

affect marine mammals or their prey in 

the area. In general, turbidity associated 

with pile installation is localized to 

about a 25-ft (7.6-meter) radius around 

the pile (Everitt et al. 1980). Cetaceans 

are not expected to be close enough to 

the pile driving areas to experience 

effects of turbidity, and any pinnipeds 

could avoid localized areas of turbidity. 

Therefore, we expect the impact from 

increased turbidity levels to be 

discountable to marine mammals and 

do not discuss it further. 

In-Water Construction Effects on 

Potential Foraging Habitat 

The proposed activities would not 

result in permanent impacts to habitats 

used directly by marine mammals 

except for the actual footprint of the 

project. The total seafloor area affected 

by pile installation and removal is a 

very small area compared to the vast 

foraging area available to marine 

mammals in the project area and lower 

Chesapeake Bay. 

Avoidance by potential prey (i.e., fish) 

of the immediate area due to the 

temporary loss of this foraging habitat is 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83013 

also possible. The duration of fish 

avoidance of this area after pile driving 

stops is unknown, but we anticipate a 

rapid return to normal recruitment, 

distribution and behavior. Any 

behavioral avoidance by fish of the 

disturbed area would still leave large 

areas of fish and marine mammal 

foraging habitat in the nearby vicinity in 

the project area and lower Chesapeake 

Bay. 

Effects on Potential Prey 

Sound may affect marine mammals 

through impacts on the abundance, 

behavior, or distribution of prey species 

(e.g., fish). Marine mammal prey varies 

by species, season, and location. Here, 

we describe studies regarding the effects 

of noise on known marine mammal 

prey. 

Fish utilize the soundscape and 

components of sound in their 

environment to perform important 

functions such as foraging, predator 

avoidance, mating, and spawning (e.g., 

Zelick et al. 1999; Fay, 2009). 

Depending on their hearing anatomy 

and peripheral sensory structures, 

which vary among species, fishes hear 

sounds using pressure and particle 

motion sensitivity capabilities and 

detect the motion of surrounding water 

(Fay et al. 2008). The potential effects of 

noise on fishes depends on the 

overlapping frequency range, distance 

from the sound source, water depth of 

exposure, and species-specific hearing 

sensitivity, anatomy, and physiology. 

Key impacts to fishes may include 

behavioral responses, hearing damage, 

barotrauma (pressure-related injuries), 

and mortality. 

Fish react to sounds which are 

especially strong and/or intermittent 

low-frequency sounds, and behavioral 

responses such as flight or avoidance 

are the most likely effects. Short 

duration, sharp sounds can cause overt 

or subtle changes in fish behavior and 

local distribution. The reaction of fish to 

noise depends on the physiological state 

of the fish, past exposures, motivation 

(e.g., feeding, spawning, migration), and 

other environmental factors. Hastings 

and Popper (2005) identified several 

studies that suggest fish may relocate to 

avoid certain areas of sound energy. 

Additional studies have documented 

effects of pile driving on fish, although 

several are based on studies in support 

of large, multiyear bridge construction 

projects (e.g., Scholik and Yan, 2001, 

2002; Popper and Hastings, 2009). 

Several studies have demonstrated that 

impulse sounds might affect the 

distribution and behavior of some 

fishes, potentially impacting foraging 

opportunities or increasing energetic 

costs (e.g., Fewtrell and McCauley, 

2012; Pearson et al. 1992; Skalski et al. 

1992; Santulli et al. 1999; Paxton et al. 

2017). However, some studies have 

shown no or slight reaction to impulse 

sounds (e.g., Pena et al. 2013; Wardle et 

al. 2001; Jorgenson and Gyselman, 2009; 

Cott et al. 2012). 

SPLs of sufficient strength have been 

known to cause injury to fish and fish 

mortality. However, in most fish 

species, hair cells in the ear 

continuously regenerate and loss of 

auditory function likely is restored 

when damaged cells are replaced with 

new cells. Halvorsen et al. (2012a) 

showed that a TTS of 4–6 dB was 

recoverable within 24 hours for one 

species. Impacts would be most severe 

when the individual fish is close to the 

source and when the duration of 

exposure is long. Injury caused by 

barotrauma can range from slight to 

severe and can cause death, and is most 

likely for fish with swim bladders. 

Barotrauma injuries have been 

documented during controlled exposure 

to impact pile driving (Halvorsen et al. 

2012b; Casper et al. 2013). 

The most likely impact to fish from 

pile driving activities at the project 

areas would be temporary behavioral 

avoidance of the area. The duration of 

fish avoidance of an area after pile 

driving stops is unknown, but a rapid 

return to normal recruitment, 

distribution and behavior is anticipated. 

The area impacted by the project is 

relatively small compared to the 

available habitat in the remainder of the 

project area and the lower Chesapeake 

Bay, and there are no areas of particular 

importance that would be impacted by 

this project. Any behavioral avoidance 

by fish of the disturbed area would still 

leave significantly large areas of fish and 

marine mammal foraging habitat in the 

nearby vicinity. As described in the 

preceding, the potential for the Navy’s 

construction to affect the availability of 

prey to marine mammals or to 

meaningfully impact the quality of 

physical or acoustic habitat is 

considered to be insignificant. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes proposed 

for authorization, which will inform 

both NMFS’ consideration of ‘‘small 

numbers’’ and the negligible impact 

determination. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of the 

MMPA defines ‘‘harassment’’ as any act 

of pursuit, torment, or annoyance, 

which (i) has the potential to injure a 

marine mammal or marine mammal 

stock in the wild (Level A harassment); 

or (ii) has the potential to disturb a 

marine mammal or marine mammal 

stock in the wild by causing disruption 

of behavioral patterns, including, but 

not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

(Level B harassment). 

Authorized takes would be by Level B 

harassment only, in the form of 

disruption of behavioral patterns and 

potential TTS for individual marine 

mammals resulting from exposure to 

pile driving and removal. Based on the 

nature of the activity and the 

anticipated effectiveness of the 

mitigation measures (i.e., shutdown 

zones) discussed in detail below in 

Proposed Mitigation section, Level A 

harassment is neither anticipated nor 

proposed to be authorized. 

As described previously, no mortality 

is anticipated or proposed to be 

authorized for this activity. Below we 

describe how the take is estimated. 

Generally speaking, we estimate take 

by considering: (1) Acoustic thresholds 

above which NMFS believes the best 

available science indicates marine 

mammals will be behaviorally harassed 

or incur some degree of permanent 

hearing impairment; (2) the area or 

volume of water that will be ensonified 

above these levels in a day; (3) the 

density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) the number of days of activities. 

We note that while these factors can 

contribute to a basic calculation to 

provide an initial prediction of takes, 

additional information that can 

qualitatively inform take estimates is 

also sometimes available (e.g., previous 

monitoring results or average group 

size). Below, we describe the factors 

considered here in more detail and 

present the proposed take estimate. 

Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur PTS of some 

degree (equated to Level A harassment). 

Level B Harassment for non-explosive 

sources—Though significantly driven by 

received level, the onset of behavioral 

disturbance from anthropogenic noise 

exposure is also informed to varying 

degrees by other factors related to the 

source (e.g., frequency, predictability, 

duty cycle), the environment (e.g., 

bathymetry), and the receiving animals 

(hearing, motivation, experience, 

demography, behavioral context) and 

83014 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

can be difficult to predict (Southall et al. 

2007, Ellison et al. 2012). Based on what 

the available science indicates and the 

practical need to use a threshold based 

on a factor that is both predictable and 

measurable for most activities, NMFS 

uses a generalized acoustic threshold 

based on received level to estimate the 

onset of behavioral harassment. NMFS 

predicts that marine mammals are likely 

to be behaviorally harassed in a manner 

we consider Level B harassment when 

exposed to underwater anthropogenic 

noise above received levels of 120 dB re 

1 mPa (rms) (microPascal, root mean 

square) for continuous (e.g., vibratory 

pile-driving, drilling) and above 160 dB 

re 1 mPa (rms) for non-explosive 

impulsive (e.g., seismic airguns) or 

intermittent (e.g., scientific sonar) 

sources. 

The Navy’s construction includes the 

use of continuous (vibratory pile 

driving) and impulsive (impact pile 

driving) sources, and therefore the 120 

and 160 dB re 1 mPa (rms) are 

applicable. 

Level A harassment for non-explosive 

sources—NMFS’ Technical Guidance 

for Assessing the Effects of 

Anthropogenic Sound on Marine 

Mammal Hearing (Version 2.0) 

(Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

(Level A harassment) to five different 

marine mammal groups (based on 

hearing sensitivity) as a result of 

exposure to noise from two different 

types of sources (impulsive or nonimpulsive). The Navy’s proposed 

construction includes the use of 

impulsive (impact pile driving) and 

non-impulsive (vibratory pile driving) 

sources. 

These thresholds are provided in the 

table below. The references, analysis, 

and methodology used in the 

development of the thresholds are 

described in NMFS 2018 Technical 

Guidance, which may be accessed at 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance. 

TABLE 7—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

Hearing group 

PTS onset acoustic thresholds *

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ......................... Cell 2: LE,LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ...................................... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ........................ Cell 4: LE,MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ........................ Cell 6: LE,HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ........................ Cell 8: LE,PW,24h: 201 dB. 

Otariid Pinnipeds (OW) (Underwater) ............................. Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ....................... Cell 10: LE,OW,24h: 219 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 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. 

In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure 

is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being 

included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated 

with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF 

cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level 

thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for 

action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. 

Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that will feed into identifying the area 

ensonified above the acoustic 

thresholds, which include source levels. 

The sound field in the project area is 

the existing background noise plus 

additional construction noise from the 

proposed project. Marine mammals are 

expected to be affected via sound 

generated by the primary components of 

the project (i.e., impact pile driving and 

vibratory pile driving). The largest 

calculated Level B harassment zone 

extends 7.2 km (4.5 mi) from the source 

(though truncated by land in some 

directions), with an area of 4.7 km2 (1.8 

mi2), as calculated using geographic 

information system (GIS) data as 

determined by the transmission loss 

modeling. 

TABLE 8—PROJECT SOUND SOURCE LEVELS

Pile size and type Installation 

method RMS SPL Peak SPL SEL Source 

24-in Square Concrete .................... Impact ............... 176 189 163 Illingworth and Rodkin, 2017. 

16-in Composite .............................. Impact ............... 165 177 157 Caltrans, 2015.1

Vibratory ........... 158 ........................ ........................ Illingworth and Rodkin, 2017. 

12-in Timber .................................... Vibratory ........... 2 158 ........................ ........................ Illingworth and Rodkin, 2017. 

1These source levels are from a 12-inch timber pile (Table 2–2, page 2–16). 

2 NMFS typically recommends a proxy source level of 152dB RMS SPL for installation and removal of 12-in timber piles; however, the Navy’s 

application included specialized modeling (described below) using 158dB RMS SPL. Given that modeling and that 158dB RMS SPL is a more 

conservative source level, NMFS concurred with the use of 158dB RMS SPL as the proxy source level for 12-in timber piles. 

The Navy contracted the University of 

Washington, Applied Physics 

Laboratory (APL) to conduct sitespecific acoustic transmission loss 

modeling for the project. The APL’s full 

report is included in Appendix B of the 

Navy’s application. NMFS 

independently reviewed and concurred 

with the modeling in the report, and has 

adopted the resulting isopleths for the 

project, as included in Table 9. 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83015 

TABLE 9—LEVEL A AND LEVEL B HARASSMENT ISOPLETHS

Site Pile size and type 

Level A harassment isopleth 

(m) 

Level B 

harassment 

isopleth 

(m) LF cetacean MF cetacean HF cetacean Phocid 1

Impact Pile Driving 

Pier 3 ................................................... 16-in Composite .................................. 18 <10m 27 

Pier 12 ................................................. 16-in Composite .................................. 18 24 

MWR Marina ........................................ 24-in Concrete .................................... 52 59 

16-in Composite .................................. 11 18 

V-Area ................................................. 24-in Concrete .................................... 42 47 

16-in Composite .................................. 11 17 

Craney Island ...................................... 16-in Composite .................................. 16 21 

Lambert’s Point ................................... 16-in Composite .................................. 19 28 

Vibratory Pile Driving 

Pier 3 ................................................... 16-in Composite/12-in Timber ............ <10m 5,615 

Pier 12 ................................................. ............................................................. 4,159 

MWR Marina ........................................ ............................................................. 469 

V-Area ................................................. ............................................................. 382 

Craney Island ...................................... ............................................................. 3,001 

Lambert’s Point ................................... ............................................................. 7,161 

1Please refer to Tables 6–5 and 6–6 in the Navy’s application for the areas of the Level B harassment zones. 

Marine Mammal Occurrence and Take 

Calculation and Estimation 

In this section we provide the 

information about the presence, density, 

or group dynamics of marine mammals 

that will inform the take calculations. 

We describe how the information 

provided above is brought together to 

produce a quantitative take estimate. 

Humpback Whale 

Humpback whales occur in the mouth 

of the Chesapeake Bay and nearshore 

waters of Virginia during winter and 

spring months. Most detections during 

shipboard surveys were of one or two 

juveniles per sighting. Although two 

individuals were detected in the 

vicinity of MPU project activities, there 

is no evidence that they linger for 

multiple days. Because no density 

estimates are available for the species in 

this area, the Navy estimated one take 

for every 60 days of pile driving. 

However, given the potential group size 

of two, as indicated by the sightings 

referenced above, NMFS has estimated 

that two humpback whales may be 

taken by Level B harassment for every 

60 days of pile driving. Therefore, given 

the number of project days expected in 

each year (Table 4), NMFS is proposing 

to authorize a total of 24 takes by Level 

B harassment of humpback whale over 

the five-year authorization, with no 

more than eight takes by Level B 

harassment in one year. 

The largest Level A harassment zone 

for low-frequency cetaceans extends 

approximately 52 m from the source 

during impact pile driving of 24-in 

concrete piles at the MWR Marina 

(Table 9). For most activities, the Level 

A harassment zone is less than 20 m. 

The Navy is planning to implement a 

50-m shutdown zone for humpback 

whales during impact pile driving of 24- 

in concrete piles, and shutdown zones 

that include the entire Level A 

harassment isopleth for all activities, as 

indicated in Table 15. Therefore, the 

Navy did not request, and NMFS does 

not propose to authorize Level A 

harassment take of humpback whale. 

Bottlenose Dolphin 

The expected number of bottlenose 

dolphins in the project area was 

estimated using inshore seasonal 

densities provided in Engelhaupt et al. 

(2016) from vessel line-transect surveys 

near NAVSTA Norfolk and adjacent 

areas near Virginia Beach, Virginia, from 

August 2012 through August 2015 

(Engelhaupt et al. 2016). To calculate 

Level B harassment takes of bottlenose 

dolphin, NMFS used the Chesapeake 

Bay density of 1.38 dolphins/km2

(Engelhaupt et al. 2016). This density 

includes sightings inshore of the 

Chesapeake Bay from NAVSTA Norfolk 

west to the Thimble Shoals Bridge, and 

is the most representative density for 

the project area. NMFS conservatively 

multiplied the density of 1.38 dolphins/ 

km2 by the largest Level B harassment 

zone for each project location (Table 11) 

and then by the proportional number of 

estimated pile driving days at each 

location for each year (Table 10). For 

example, to calculate Level B 

harassment takes associated with work 

at Pier 3 in 2021, NMFS multiplied the 

density (1.38 dolphins/km2) by largest 

Level B harassment zone for Pier 3 (10.3 

km2) by the proportional number of pile 

driving days at Pier 3 in 2021 (24.6) for 

a total of 350 Level B harassment takes 

at Pier 3 in 2021. Therefore, NMFS 

proposes to authorize 7,566 takes by 

Level B harassment of bottlenose 

dolphin across all five years, with no 

more than 2,742 in one year. 

TABLE 10—ESTIMATED NUMBER OF PILE DRIVING DAYS AT EACH PROJECT LOCATION

Location 1

Estimated 

number of 

pile driving 

days 

(all seasons) 

Proportional number of pile driving days 3

2021 2022 2023 2024 2025 

Pier 3 ...................................................................................... 68 24.6 10.0 2.1 9.0 22.3 

Pier 12 .................................................................................... 352 127.6 51.5 11.0 46.6 115.3 

MWR Marina .......................................................................... 52 18.8 7.6 1.6 6.9 17.0 

V-Area .................................................................................... 44 15.9 6.4 1.4 5.8 14.4 

Craney Island ......................................................................... 52 18.8 7.6 1.6 6.9 17.0 

Lambert’s Point ...................................................................... 8 2.9 1.2 0.3 1.1 2.6 

83016 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

TABLE 10—ESTIMATED NUMBER OF PILE DRIVING DAYS AT EACH PROJECT LOCATION—Continued 

Location 1

Estimated 

number of 

pile driving 

days 

(all seasons) 

Proportional number of pile driving days 3

2021 2022 2023 2024 2025 

Estimated Total Pile Driving Days per Year .......................... 2 574 208 84 18 76 188 

Percentage of Total Pile Driving Days ............................... ........................ 36 15 3 13 33 

1While the Navy plans to conduct work at additional locations not listed here, these locations are assumed to be representative of the overall 

project site (ex: all pile driving lumped together at Lambert’s Point Deperming Station), as noted in Appendix A of the Navy’s application. Pile 

driving at these additional locations is included in the total number of pile driving days assumed here. 2 NMFS recognizes that due to rounding, the sum of the estimated number of work days at each location is 576, not 574. However, as mentioned previously, the Navy expects construction to last 574 days across all five years. 3The number of pile driving days indicated per year at each location is intended to inform our assessment of both the total and maximum annual taking allowable under the rule. NMFS does not expect that the Navy will conduct exactly the fractional number of days of pile driving indicated for each year in each location. 

TABLE 11—ANNUAL LEVEL B HARASSMENT TAKES OF BOTTLENOSE DOLPHIN BY PROJECT LOCATION

Location 

Largest 

Level B 

harassment 

zone 

(km2) 

Level B harassment takes 1

2021 2022 2023 2024 2025 Total 

Pier 3 ................................................................ 10.3 350.2 141.4 30.3 128.0 316.6 966.6 

Pier 12 .............................................................. 13.1 2,305.9 931.2 199.6 842.5 2,084.2 6,363.5 

MWR Marina .................................................... 0.2 5.2 2.1 0.5 1.9 4.7 14.4 

V-Area .............................................................. 0.2 4.4 1.8 0.4 1.6 4.0 12.1 

Craney Island ................................................... 2.2 57.2 23.1 5.0 20.9 51.7 157.9 

Lambert’s Point ................................................ 4.7 18.8 7.6 1.6 6.9 17.0 51.9 

Total Level B Harassment Takes per Year ........................ 2,742 1,107 237 1,002 2,478 7,566 

Annual Takes as Percentage of FiveYear Total .......................................... ........................ 36.2 14.6 3.1 13.2 32.8 ..................

1 Note actual calculations were not rounded at each step as they are shown in Table 10 and Table 11. 

The Level A harassment zones for 

mid-frequency cetaceans extend less 

than 10 m from the source during all 

activities (Table 9). Given the small size 

of the Level A harassment zones, we do 

not expect Level A harassment take of 

bottlenose dolphins. Additionally, the 

Navy is planning to implement a 10 m 

shutdown zone for bottlenose dolphins 

during all pile driving and other inwater activities (Table 15), which 

includes the entire Level A harassment 

zone for all pile driving activities. 

Therefore, the Navy did not request, and 

NMFS does not propose to authorize 

Level A harassment take of bottlenose 

dolphin. 

Harbor Porpoise 

Harbor porpoises are known to occur 

in the coastal waters near Virginia 

Beach (Hayes et al. 2019). Density data 

for this species within the project 

vicinity do not exist or were not 

calculated because sample sizes were 

too small to produce reliable estimates 

of density. Harbor porpoise sighting 

data collected by the U.S. Navy near 

NAVSTA Norfolk and Virginia Beach 

from 2012 to 2015 (Engelhaupt et al. 

2014; 2015; 2016) did not produce 

enough sightings to calculate densities. 

One group of two harbor porpoises was 

seen during spring 2015 (Engelhaupt et 

al. 2016). Elsewhere in their range, 

harbor porpoises typically occur in 

groups of two to three individuals 

(Carretta et al. 2001; Smultea et al. 

2017). 

Because there are no density estimates 

for the species in the MPU project area, 

the Navy conservatively estimated two 

takes of harbor porpoise by Level B 

harassment per 60 pile driving days 

(Table 4), resulting in 20 takes by Level 

B harassment across the five year rule, 

and no more than 7 takes by Level B 

harassment in one year (Table 13). 

NMFS concurs with this estimate and 

proposes to authorize 20 takes by Level 

B harassment of harbor porpoise. 

The Level A harassment zones for 

high-frequency cetaceans extend less 

than 10 m from the source during all 

activities (Table 9). Given the small size 

of the Level A harassment zones, we do 

not expect take by Level A harassment 

of harbor porpoise. Additionally, the 

Navy is planning to implement a 10 m 

shutdown zone for during pile driving 

and other in-water activities (Table 15). 

Therefore, the Navy did not request, and 

NMFS does not propose to authorize 

take by Level A harassment of harbor 

porpoise. 

Harbor Seal 

The expected number of harbor seals 

in the project area was estimated using 

systematic, land- and vessel-based 

survey data for in-water and hauled-out 

seals collected by the U.S. Navy at the 

CBBT rock armor and portal islands 

from 2014 through 2019 (Jones et al. 

2020). The average daily seal count from 

the 2014 through 2019 field seasons 

ranged from 8 to 23, with an average of 

13.6 harbor seals across all the field 

seasons (Table 12) (rounded up to 14 

seals). 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83017 

TABLE 12—HARBOR SEAL COUNTS AT CHESAPEAKE BAY BRIDGE TUNNEL

Field season ‘‘In season’’ 

survey days 

Total 

seal count 

Average 

daily seal 

count 

Max daily 

seal count 

2014–2015 ........................................................................................................................................ 11 113 10 33 

2015–2016 ........................................................................................................................................ 14 187 13 39 

2016–2017 ........................................................................................................................................ 22 308 14 40 

2017–2018 ........................................................................................................................................ 15 340 23 45 

2018–2019 ........................................................................................................................................ 10 82 8 17 

Average ............................................................................................................................................. ........................ ........................ 13.6 34.8 

Source: Jones et al. 2020. 

The Navy expects, and NMFS 

concurs, that harbor seals are likely to 

be present from November to April. 

NMFS calculated take by Level B 

harassment by multiplying 14 seals by 

the number of pile driving days 

expected in each year if fewer than 183 

project days (half of the year) were 

expected. To account for seasonal 

occurrence (November to April), NMFS 

calculated take based on 183 project 

days for years which have more than 

183 expected project days (2021, 2025). 

Therefore, NMFS proposes to authorize 

7,616 takes by Level B harassment of 

harbor seals across the five-year 

duration of this rule, with no more than 

2,562 takes by Level B harassment in 

one year (Table 13). 

The Level A harassment zones for 

phocids extend less than 10 m from the 

source during all activities (Table 9). 

Given the small size of the Level A 

harassment zones, we do not expect take 

by Level A harassment of harbor seal. 

Additionally, the Navy is planning to 

implement a 10 m shutdown zone for 

during pile driving and other in-water 

activities (Table 15), which includes the 

entire Level A harassment zone for all 

pile driving activities. Therefore, the 

Navy did not request, and NMFS does 

not propose to authorize take by Level 

A harassment of harbor seal. 

Gray Seal 

Very little information is available 

about the occurrence of gray seals in the 

Chesapeake Bay and coastal waters. 

Although the population of the United 

States may be increasing, there are only 

a few records at known haulout sites in 

Virginia used by harbor seals, strandings 

are rare, and they have not been 

reported in shipboard surveys. 

Assuming that they may utilize the 

Chesapeake Bay waters, the Navy 

conservatively estimates that one gray 

seal may be exposed to noise levels 

above the Level B harassment threshold 

for every 60 days of vibratory pile 

driving during the six month period 

when they are most likely to be present. 

NMFS concurs, and calculated take 

based on the number of project days for 

years which have fewer than 183 project 

days (half of the year). To account for 

the expected seasonal presence of gray 

seals, NMFS calculated take based on 

183 project days for years which have 

more than 183 expected project days 

(2021, 2025). Therefore, NMFS is 

proposing to authorize nine takes by 

Level B harassment of gray seals over 

the five-year duration of the rule, with 

no more than three takes by Level B 

harassment in one year (Table 13). 

The Level A harassment zones for 

phocids extend less than 10 m from the 

source during all activities (Table 9). 

Given the small size of the Level A 

harassment zones and the low 

occurrence of gray seals in the project 

area, we do not expect Level A 

harassment take of gray seal. 

Additionally, the Navy is planning to 

implement a 10 m shutdown zone for 

during pile driving and other in-water 

activities (Table 15), which includes the 

entire Level A harassment zone for all 

pile driving activities. Therefore, the 

Navy did not request, and NMFS does 

not propose to authorize take by Level 

A harassment of gray seal. 

TABLE 13—ESTIMATED TAKE BY LEVEL B HARASSMENT, BY SPECIES

Species 2021 2022 2023 2024 2025 Total 

Humpback whale ....................................................................... 6 4 2 4 8 24 

Bottlenose dolphin ..................................................................... 2,742 1,107 237 1,002 2,478 7,566 

Harbor porpoise ........................................................................ 7 3 1 3 6 20 

Harbor seal ................................................................................ 2,562 1,176 252 1,064 2,562 7,616 

Gray seal ................................................................................... 3 1 1 1 3 9 

TABLE 14—ESTIMATED TAKE BY LEVEL B HARASSMENT (GREATEST ANNUAL TAKE EXPECTED), BY SPECIES AND STOCK

IN COMPARISON TO STOCK ABUNDANCE

Species Stock Stock 

abundance 

Level B 

harassment 

take 

Percent 

of stock 

Humpback Whale ............................................................ Gulf of Maine .................................................................. b 12,312 8 0.6 

Bottlenose Dolphin ........................................................... WNA Coastal, Northern Migratory a ................................ 6,639 1,353 20.4 

WNA Coastal, Southern Migratory a ................................ 3,751 ............................................................................... 1,353 36.1 

NNCESa .......................................................................... 823 .................................................................................. 36 4.4 

Harbor Porpoise ............................................................... Gulf of Maine/Bay of Fundy ............................................ 95,543 7 0.007 

Harbor Seal ...................................................................... Western North Atlantic .................................................... 75,834 2,562 3.4 

Gray Seal ......................................................................... Western North Atlantic .................................................... d 27,131 3 0.01 

aTake estimates are weighted based on calculated percentages of population for each distinct stock, assuming animals present would follow same probability of 

presence in the project area. Please see the Small Numbers section for additional information. bWest Indies DPS. 

cAssumes multiple repeated takes of same individuals from small portion of each stock as well as repeated takes of Chesapeake Bay resident population (size unknown). Please see the Small Numbers section for additional information. dThis stock abundance estimate includes only the U.S. portion of this stock. The actual stock abundance, including the Canadian portion of the population, is estimated to be approximately 451,431 animals. 

83018 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

Proposed 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 impact on 

the species or stock and its habitat, 

paying particular attention to rookeries, 

mating grounds, and areas of similar 

significance, and on the availability of 

the species or stock for taking for certain 

subsistence uses (latter not applicable 

for this action). NMFS regulations 

require applicants for incidental take 

authorizations to include information 

about the availability and feasibility 

(economic and technological) of 

equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned), 

and; 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, 

impact on operations, and, in the case 

of a military readiness activity, 

personnel safety, practicality of 

implementation, and impact on the 

effectiveness of the military readiness 

activity. 

In addition to the measures described 

later in this section, the Navy will 

employ the following mitigation 

measures: 

• For in-water heavy machinery work 

other than pile driving, if a marine 

mammal comes within 10 m, operations 

shall cease and vessels shall reduce 

speed to the minimum level required to 

maintain steerage and safe working 

conditions; 

• The Navy will conduct briefings 

between construction supervisors and 

crews and the marine mammal 

monitoring team prior to the start of all 

pile driving activity and when new 

personnel join the work, to explain 

responsibilities, communication 

procedures, marine mammal monitoring 

protocol, and operational procedures; 

• For those marine mammals for 

which Level B harassment take has not 

been requested, in-water pile 

installation/removal will shut down 

immediately if such species are 

observed within or entering the Level B 

harassment zone; and 

• If take reaches the authorized limit 

for an authorized species, pile 

installation/removal will shut down 

immediately if these species approach 

the Level B harassment zone to avoid 

additional take. 

The following mitigation measures 

apply to the Navy’s in-water 

construction activities. 

Establishment of Shutdown Zones— 

The Navy will establish shutdown zones 

for all pile driving and removal 

activities. The purpose of a shutdown 

zone is generally to define an area 

within which shutdown of the activity 

would occur upon sighting of a marine 

mammal (or in anticipation of an animal 

entering the defined area). Shutdown 

zones will vary based on the activity 

type and marine mammal hearing group 

(Table 15). 

Protected Species Observers (PSOs)— 

The placement of PSOs during all pile 

driving and removal activities 

(described in the Proposed Monitoring 

and Reporting section) will ensure that 

the entire shutdown zone is visible 

during pile driving and removal. Should 

environmental conditions deteriorate 

such that marine mammals within the 

entire shutdown zone would not be 

visible (e.g., fog, heavy rain), pile 

driving and removal must be delayed 

until the PSO is confident marine 

mammals within the shutdown zone 

could be detected. 

Monitoring for Level B Harassment— 

The Navy will monitor the Level B 

harassment zones (areas where SPLs are 

equal to or exceed the 160 dB rms 

threshold for impact driving and the 120 

dB rms threshold during vibratory pile 

driving) to the extent practicable, and 

the Level A harassment zones. The Navy 

will monitor at least a portion of the 

Level B harassment zone on all pile 

driving days. Monitoring zones provide 

utility for observing by establishing 

monitoring protocols for areas adjacent 

to the shutdown zones. Monitoring 

zones enable observers to be aware of 

and communicate the presence of 

marine mammals in the project area 

outside the shutdown zone and thus 

prepare for a potential cessation of 

activity should the animal enter the 

shutdown zone. 

Pre-activity Monitoring—Prior to the 

start of daily in-water construction 

activity, or whenever a break in pile 

driving/removal of 30 minutes or longer 

occurs, PSOs will observe the shutdown 

and monitoring zones for a period of 30 

minutes. The shutdown zone will be 

considered cleared when a marine 

mammal has not been observed within 

the zone for that 30-minute period. If a 

marine mammal is observed within the 

shutdown zone, a soft-start cannot 

proceed until the animal has left the 

zone or has not been observed for 15 

minutes. When a marine mammal for 

which Level B harassment take is 

authorized is present in the Level B 

harassment zone, activities may begin 

and Level B harassment take will be 

recorded. If the entire Level B 

harassment zone is not visible at the 

start of construction, pile driving 

activities can begin. If work ceases for 

more than 30 minutes, the pre-activity 

monitoring of the shutdown zones will 

commence. A determination that the 

shutdown zone is clear must be made 

during a period of good visibility (i.e., 

the entire shutdown zone and 

surrounding waters must be visible to 

the naked eye). 

Soft Start—Soft-start procedures are 

believed to provide additional 

protection to marine mammals by 

providing warning and/or giving marine 

mammals a chance to leave the area 

prior to the hammer operating at full 

capacity. For impact pile driving, 

contractors will be required to provide 

an initial set of three strikes from the 

hammer at reduced energy, followed by 

a 30-second waiting period. This 

procedure will be conducted three times 

before impact pile driving begins. Soft 

start will be implemented at the start of 

each day’s impact pile driving and at 

any time following cessation of impact 

pile driving for a period of 30 minutes 

or longer. 

The Navy does not plan to use a pile 

driving energy attenuator during 

construction. 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83019 

TABLE 15—SHUTDOWN ZONES DURING PILE INSTALLATION AND REMOVAL

Site Pile size and type 

Shutdown Zone 

LF cetacean MF cetacean HF cetacean Phocid 

Pier 3 ................................................. 16-in Composite ............................... 20 10m 

Pier 12 ............................................... 16-in Composite ............................... 20 

MWR Marina ..................................... 24-in Concrete .................................. 50 

16-in Composite ............................... 20 

V-Area ............................................... 24-in Concrete .................................. 50 

16-in Composite ............................... 20 

Craney Island .................................... 16-in Composite ............................... 20 

Lambert’s Point ................................. 16-in Composite ............................... 20 

Pier 3 ................................................. 16-in Composite/12-in Timber .......... 10m 

Pier 12. 

MWR Marina. 

V-Area. 

Craney Island. 

Lambert’s Point. 

Based on our evaluation of the Navy’s 

proposed measures, as well as other 

measures considered by NMFS, NMFS 

has preliminarily determined that the 

proposed mitigation measures provide 

the means effecting the least practicable 

impact on the affected species or stocks 

and their habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance. 

Proposed Monitoring and Reporting 

In order to issue an LOA for an 

activity, section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

NMFS’ MMPA implementing 

regulations further describe the 

information that an applicant should 

provide when requesting an 

authorization (50 CFR 216.104 (a)(13)), 

including the means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and the level of taking or 

impacts on populations of marine 

mammals. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density). 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) Action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas). 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors. 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks. 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat). 

• Mitigation and monitoring 

effectiveness. 

The Navy will submit a Marine 

Mammal Monitoring Plan to NMFS for 

approval in advance of the start of 

construction. 

Visual Monitoring 

Marine mammal monitoring during 

pile driving and removal must be 

conducted by PSOs meeting NMFS’ 

standards and in a manner consistent 

with the following: 

• Independent PSOs (i.e., not 

construction personnel) who have no 

other assigned tasks during monitoring 

periods must be used; 

• At least one PSO must have prior 

experience performing the duties of a 

PSO during construction activity 

pursuant to a NMFS-issued incidental 

take authorization; 

• Other PSOs may substitute 

education (degree in biological science 

or related field) or training for 

experience; and 

• Where a team of three or more PSOs 

is required, a lead observer or 

monitoring coordinator must be 

designated. The lead observer must have 

prior experience working as a marine 

mammal observer during construction. 

PSOs must have the following 

additional qualifications: 

• Ability to conduct field 

observations and collect data according 

to assigned protocols; 

• Experience or training in the field 

identification of marine mammals, 

including the identification of 

behaviors; 

• Sufficient training, orientation, or 

experience with the construction 

operation to provide for personal safety 

during observations; 

• Writing skills sufficient to prepare a 

report of observations including but not 

limited to the number and species of 

marine mammals observed; dates and 

times when in-water construction 

activities were conducted; dates, times, 

and reason for implementation of 

mitigation (or why mitigation was not 

implemented when required); and 

marine mammal behavior; and 

• Ability to communicate orally, by 

radio or in person, with project 

personnel to provide real-time 

information on marine mammals 

observed in the area as necessary. 

At least two PSOs will monitor all 

pile driving activities. Depending on 

available resources, and depending on 

the size of the zone associated with the 

activity, additional PSOs may be 

utilized as necessary. PSOs will be 

placed at the best vantage point(s) 

practicable to monitor for marine 

mammals and implement shutdown/ 

delay procedures. (See Figure 13–1 of 

the Navy’s application for example 

representative monitoring locations.) 

Monitoring will be conducted 30 

minutes before, during, and 30 minutes 

after pile driving activities. In addition, 

observers shall record all incidents of 

marine mammal occurrence, regardless 

83020 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

of distance from activity, and shall 

document any behavioral reactions in 

concert with distance from piles being 

driven or removed. Pile driving 

activities include the time to install or 

remove a single pile or series of piles, 

as long as the time elapsed between uses 

of the pile driving equipment is no more 

than 30 minutes. 

Acoustic Monitoring 

The Navy intends to conduct a sound 

source verification (SSV) study for all 

pile types other than concrete and 

timber piles 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 would submit a draft report 

to NMFS within 45 workdays of the 

completion of required monitoring for 

each MPU project. The report will detail 

the monitoring protocol and summarize 

the data recorded during monitoring. 

Specifically, the report must include: 

• Dates and times (begin and end) of 

all marine mammal monitoring. 

• Construction activities occurring 

during each daily observation period, 

including how many and what type of 

piles were driven or removed and by 

what method (i.e., impact or vibratory). 

• Environmental conditions during 

monitoring periods (at beginning and 

end of PSO shift and whenever 

conditions change significantly), 

including Beaufort sea state and any 

other relevant weather conditions 

including cloud cover, fog, sun glare, 

and overall visibility to the horizon, and 

estimated observable distance (if less 

than the harassment zone distance). 

• The number of marine mammals 

observed, by species, relative to the pile 

location and if pile driving or removal 

was occurring at time of sighting. 

• Age and sex class, if possible, of all 

marine mammals observed. 

• PSO locations during marine 

mammal monitoring. 

• Distances and bearings of each 

marine mammal observed to the pile 

being driven or removed for each 

sighting (if pile driving or removal was 

occurring at time of sighting). 

• Description of any marine mammal 

behavior patterns during observation, 

including direction of travel and 

estimated time spent within the Level A 

and Level B harassment zones while the 

source was active. 

• Number of marine mammals 

detected within the harassment zones, 

by species. 

• Detailed information about any 

implementation of any mitigation 

triggered (e.g., shutdowns and delays), a 

description of specific actions that 

ensued, and resulting behavior of the 

animal, if any. 

• Description of attempts to 

distinguish between the number of 

individual animals taken and the 

number of incidences of take, such as 

ability to track groups or individuals. 

If no comments are received from 

NMFS within 30 days, the draft report 

will constitute the final report. If 

comments are received, a final report 

addressing NMFS comments must be 

submitted within 30 days after receipt of 

comments. 

In the event that personnel involved 

in the construction activities discover 

an injured or dead marine mammal, the 

Navy shall report the incident to the 

Office of Protected Resources (OPR) 

(301–427–8401), NMFS and to the 

Greater Atlantic Region New England/ 

Mid-Atlantic Regional Stranding 

Coordinator as soon as feasible. If the 

death or injury was clearly caused by 

the specified activity, the Navy must 

immediately cease the specified 

activities until NMFS is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the 

authorization. The Navy must not 

resume their activities until notified by 

NMFS. 

The report must include the following 

information: 

i. Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

ii. Species identification (if known) or 

description of the animal(s) involved; 

iii. Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

iv. Observed behaviors of the 

animal(s), if alive; 

v. If available, photographs or video 

footage of the animal(s); and 

vi. General circumstances under 

which the animal was discovered. 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any responses (e.g., intensity, 

duration), the context of any responses 

(e.g., critical reproductive time or 

location, migration), as well as effects 

on habitat, and the likely effectiveness 

of the mitigation. We also assess the 

number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’s implementing 

regulations (54 FR 40338; September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

To avoid repetition, this introductory 

discussion of our analyses applies to all 

of the species listed in Table 5, given 

that many of the anticipated effects of 

this project on different marine mammal 

stocks are expected to be relatively 

similar in nature. Where there are 

meaningful differences between species 

or stocks in anticipated individual 

responses to activities, impact of 

expected take on the population due to 

differences in population status, or 

impacts on habitat, they are described 

independently in the analysis below. 

Pile driving activities associated with 

the project, as outlined previously, have 

the potential to disturb or displace 

marine mammals. Specifically, the 

specified activities may result in take, in 

the form of Level B harassment from 

underwater sounds generated by pile 

driving. Potential takes could occur if 

marine mammals are present in zones 

ensonified above the thresholds for 

Level B harassment, identified above, 

while activities are underway. 

No serious injury or mortality would 

be expected even in the absence of the 

proposed mitigation measures. For all 

species other than humpback whale, no 

Level A harassment is anticipated given 

the nature of the activities. For 

humpback whale, no Level A 

harassment is anticipated due to the 

proposed mitigation measures, which 

we expect the Navy will be able to 

effectively implement given the small 

Level A harassment zone sizes and high 

visibility of humpback whales. 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83021 

The Navy’s proposed pile driving 

activities and associated impacts will 

occur within a limited portion of the 

confluence of the Chesapeake Bay area. 

Localized noise exposures produced by 

project activities may cause short-term 

behavioral modifications in affected 

cetaceans and pinnipeds. However, as 

described previously, the mitigation and 

monitoring measures are expected to 

further reduce the likelihood of injury 

as well as reduce behavioral 

disturbances. 

Effects on individuals that are taken 

by Level B harassment, on the basis of 

reports in the literature as well as 

monitoring from other similar activities, 

will likely be limited to reactions such 

as increased swimming speeds, 

increased surfacing time, or decreased 

foraging (if such activity were occurring) 

(e.g., Thorson and Reyff 2006). 

Individual animals, even if taken 

multiple times, will most likely move 

away from the sound source and be 

temporarily displaced from the areas of 

pile driving, although even this reaction 

has been observed primarily only in 

association with impact pile driving. 

The pile driving activities analyzed here 

are similar to, or less impactful than, 

numerous other construction activities 

conducted along both Atlantic and 

Pacific coasts, which have taken place 

with no known long-term adverse 

consequences from behavioral 

harassment. Furthermore, many projects 

similar to this one are also believed to 

result in multiple takes of individual 

animals without any documented longterm adverse effects. Level B harassment 

will be minimized through use of 

mitigation measures described herein 

and, if sound produced by project 

activities is sufficiently disturbing, 

animals are likely to simply avoid the 

area while the activity is occurring, 

particularly as the project is located on 

a busy waterfront with high amounts of 

vessel traffic. 

As previously described, UMEs have 

been declared for Northeast pinnipeds 

(including harbor seal and gray seal) 

and Atlantic humpback whales. 

However, we do not expect takes 

proposed for authorization in this action 

to exacerbate or compound upon these 

ongoing UMEs. As noted previously, no 

injury, serious injury, or mortality is 

expect or proposed for authorization, 

and Level B harassment takes of 

humpback whale, harbor seal and gray 

seal will be reduced to the level of least 

practicable adverse impact through the 

incorporation of the proposed 

mitigation measures. For the WNA stock 

of gray seal, the estimated stock 

abundance is 451,431 animals, 

including the Canadian portion of the 

stock (estimated 27,131 animals in the 

U.S. portion of the stock). Given that 

only 1 to 3 takes by Level B harassment 

are proposed for this stock annually, we 

do not expect this proposed 

authorization to exacerbate or 

compound upon the ongoing UME. 

With regard to humpback whales, the 

UME does not yet provide cause for 

concern regarding population-level 

impacts. Despite the UME, the relevant 

population of humpback whales (the 

West Indies breeding population, or 

distinct population segment (DPS)) 

remains healthy. Prior to 2016, 

humpback whales were listed under the 

ESA as an endangered species 

worldwide. Following a 2015 global 

status review (Bettridge et al. 2015), 

NMFS established 14 DPSs with 

different listing statuses (81 FR 62259; 

September 8, 2016) pursuant to the ESA. 

The West Indies DPS, which consists of 

the whales whose breeding range 

includes the Atlantic margin of the 

Antilles from Cuba to northern 

Venezuela, and whose feeding range 

primarily includes the Gulf of Maine, 

eastern Canada, and western Greenland, 

was delisted. The status review 

identified harmful algal blooms, vessel 

collisions, and fishing gear 

entanglements as relevant threats for 

this DPS, but noted that all other threats 

are considered likely to have no or 

minor impact on population size or the 

growth rate of this DPS (Bettridge et al. 

2015). As described in Bettridge et al. 

(2015), the West Indies DPS has a 

substantial population size (i.e., 12,312 

(95% CI 8,688–15,954) whales in 2004– 

05 (Bettridge et al. 2003)), and appears 

to be experiencing consistent growth. 

Further, NMFS is proposing to authorize 

no more than eight takes by Level B 

harassment annually of humpback 

whale. 

For the WNA stock of harbor seals, 

the estimated abundance is 75,834 

individuals. The estimated M/SI for this 

stock (350) is well below the PBR 

(2,006). As such, the proposed Level B 

harassment takes of harbor seal are not 

expected to exacerbate or compound 

upon the ongoing UMEs. 

The project is also not expected to 

have significant adverse effects on 

affected marine mammals’ habitats. The 

project activities will not modify 

existing marine mammal habitat for a 

significant amount of time. The 

activities may cause some fish to leave 

the area of disturbance, thus temporarily 

impacting marine mammals’ foraging 

opportunities in a limited portion of the 

foraging range; but, because of the short 

duration of the activities and the 

relatively small area of the habitat that 

may be affected (with no known 

particular importance to marine 

mammals), the impacts to marine 

mammal habitat are not expected to 

cause significant or long-term negative 

consequences. 

In summary and as described above, 

the following factors primarily support 

our preliminary determination that the 

impacts resulting from this activity are 

not expected to adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival: 

• No mortality is anticipated or 

authorized; 

• No Level A harassment is 

anticipated or authorized; 

• The intensity of anticipated takes 

by Level B harassment is relatively low 

for all stocks; 

• The number of anticipated takes is 

very low for humpback whale, harbor 

porpoise, and gray seal; 

• The specified activity and 

associated ensonifed areas are very 

small relative to the overall habitat 

ranges of all species and do not include 

habitat areas of special significance 

(Biologically Important Areas or ESAdesignated critical habitat); 

• The lack of anticipated significant 

or long-term negative effects to marine 

mammal habitat; and 

• The presumed efficacy of the 

mitigation measures in reducing the 

effects of the specified activity. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

proposed monitoring and mitigation 

measures, NMFS preliminarily finds 

that the total marine mammal take from 

the proposed activity will have a 

negligible impact on all affected marine 

mammal species or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under sections 101(a)(5)(A) of the 

MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers 

and so, in practice, where estimated 

numbers are available, NMFS compares 

the number of individuals taken to the 

most appropriate estimation of 

abundance of the relevant species or 

stock in our determination of whether 

an authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

83022 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

as the temporal or spatial scale of the 

activities. 

The authorized instances of take of 

humpback whale, harbor porpoise, 

harbor seal, and gray seal comprises less 

than one-third of the best available stock 

abundance (Table 14). 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 

taking occurred to a new individual, 

which is an unlikely scenario. 

Three bottlenose dolphin stocks could 

occur in the project area: WNA Coastal 

Northern Migratory, WNA Coastal 

Southern Migratory, and NNCES stocks. 

Therefore, the estimated takes of 

bottlenose dolphin by Level B 

harassment would likely be portioned 

among these stocks. Based on the stocks’ 

respective occurrence in the area, NMFS 

estimated that there would be 100 takes 

from the NNCES stock over the five-year 

period (no more than 36 in one year), 

with the remaining takes evenly split 

between the northern and southern 

migratory coastal stocks. Based on 

consideration of various factors 

described below, we have determined 

the numbers of individuals taken would 

likely comprise less than one-third of 

the best available population abundance 

estimate of either coastal migratory 

stock. 

Both the WNA Coastal Northern 

Migratory and WNA Coastal Southern 

Migratory stocks have expansive ranges 

and they are the only dolphin stocks 

thought to make broad-scale, seasonal 

migrations in coastal waters of the 

western North Atlantic. Given the large 

ranges associated with these stocks it is 

unlikely that large segments of either 

stock would approach the project area 

and enter into the Chesapeake Bay. The 

majority of both stocks are likely to be 

found widely dispersed across their 

respective habitat ranges and unlikely to 

be concentrated in or near the 

Chesapeake Bay. 

Furthermore, the Chesapeake Bay and 

nearby offshore waters represent the 

boundaries of the ranges of each of the 

two coastal stocks during migration. The 

WNA Coastal Northern Migratory stock 

occurs during warm water months from 

coastal Virginia, including the 

Chesapeake Bay and Long Island, New 

York. The stock migrates south in late 

summer and fall. During cold-water 

months, dolphins may occur in coastal 

waters from Cape Lookout, North 

Carolina, to the North Carolina/Virginia. 

During January-March, the WNA Coastal 

Southern Migratory stock appears to 

move as far south as northern Florida. 

From April to June, the stock moves 

back north to North Carolina. During the 

warm water months of July-August, the 

stock is presumed to occupy coastal 

waters north of Cape Lookout, North 

Carolina, to Assateague, Virginia, 

including the Chesapeake Bay. There is 

likely some overlap between the 

northern and southern migratory stocks 

during spring and fall migrations, but 

the extent of overlap is unknown. 

The Chesapeake Bay and waters 

offshore of its mouth are located on the 

periphery of the migratory ranges of 

both coastal stocks (although during 

different seasons). Additionally, each of 

the migratory coastal stocks are likely to 

be located in the vicinity of the 

Chesapeake Bay for relatively short 

timeframes. Given the limited number 

of animals from each migratory coastal 

stock likely to be found at the seasonal 

migratory boundaries of their respective 

ranges, in combination with the short 

time periods (∼two months) animals 

might remain at these boundaries, it is 

reasonable to assume that takes are 

likely to occur to only a small portion 

of either of the migratory coastal stocks. 

Both migratory coastal stocks likely 

overlap with the NNCES stock at 

various times during their seasonal 

migrations. The NNCES stock is defined 

as animals that primarily occupy waters 

of the Pamlico Sound estuarine system 

(which also includes Core, Roanoke, 

and Albemarle sounds, and the Neuse 

River) during warm water months (JulyAugust). Animals from this stock also 

use coastal waters (≤1 km from shore) of 

North Carolina from Beaufort north to 

Virginia Beach, Virginia, including the 

lower Chesapeake Bay. Comparison of 

dolphin photo-identification data 

confirmed that limited numbers of 

individual dolphins observed in 

Roanoke Sound have also been sighted 

in the Chesapeake Bay (Young, 2018). 

Like the migratory coastal dolphin 

stocks, the NNCES stock covers a large 

range. The spatial extent of most small 

and resident bottlenose dolphin 

populations is on the order of 500 km2, 

while the NNCES stock occupies over 

8,000 km2 (LeBrecque et al. 2015). 

Given this large range, it is again 

unlikely that a preponderance of 

animals from the NNCES stock would 

depart the North Carolina estuarine 

system and travel to the northern extent 

of the stock’s range. However, recent 

evidence suggests that there is likely a 

small resident community of NNCES 

dolphins of indeterminate size that 

inhabits the Chesapeake Bay year-round 

(E. Patterson, NMFS, pers. comm.). 

Many of the dolphin observations in 

the Chesapeake Bay are likely repeated 

sightings of the same individuals. The 

Potomac-Chesapeake Dolphin Project 

has observed over 1,200 unique animals 

since observations began in 2015. Resightings of the same individual can be 

highly variable. Some dolphins are 

observed once per year, while others are 

highly regular with greater than 10 

sightings per year (J. Mann, PotomacChesapeake Dolphin Project, pers. 

comm.). Similarly, using available 

photo-identification data, Engelhaupt et 

al. (2016) determined that specific 

individuals were often observed in close 

proximity to their original sighting 

locations and were observed multiple 

times in the same season or same year. 

Ninety-one percent of re-sighted 

individuals (100 of 110) in the study 

area were recorded less than 30 km from 

the initial sighting location. Multiple 

sightings of the same individual would 

considerably reduce the number of 

individual animals that are taken by 

Level B harassment. Furthermore, the 

existence of a resident dolphin 

population in the Bay would increase 

the percentage of dolphin takes that are 

actually re-sightings of the same 

individuals. 

In summary and as described above, 

the following factors primarily support 

our determination regarding the 

incidental take of small numbers of the 

affected stocks of bottlenose dolphin: 

• Potential bottlenose dolphin takes 

in the project area are likely to be 

allocated among three distinct stocks; 

• Bottlenose dolphin stocks in the 

project area have extensive ranges and 

it would be unlikely to find a high 

percentage of any one stock 

concentrated in a relatively small area 

such as the project area or the 

Chesapeake Bay; 

• The Chesapeake Bay represents the 

migratory boundary for each of the 

specified dolphin stocks and it would 

be unlikely to find a high percentage of 

any stock concentrated at such 

boundaries; and 

• Many of the takes would likely be 

repeats of the same animals and likely 

from a resident population of the 

Chesapeake Bay. 

Based on the analysis contained 

herein of the proposed activity 

(including the proposed mitigation and 

monitoring measures) and the 

anticipated take of marine mammals, 

NMFS preliminarily 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 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83023 

stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to Navy 

maintenance construction activities 

would contain an adaptive management 

component. 

The reporting requirements associated 

with this proposed rule are designed to 

provide NMFS with monitoring data 

from completed projects to allow 

consideration of whether any changes 

are appropriate. The use of adaptive 

management allows NMFS to consider 

new information from different sources 

to determine (with input from the Navy 

regarding practicability) on an annual or 

biennial basis if mitigation or 

monitoring measures should be 

modified (including additions or 

deletions). Mitigation measures could be 

modified if new data suggests that such 

modifications would have a reasonable 

likelihood of reducing adverse effects to 

marine mammals and if the measures 

are practicable. 

The following are some of the 

possible sources of applicable data to be 

considered through the adaptive 

management process: (1) Results from 

monitoring reports, as required by 

MMPA authorizations; (2) results from 

general marine mammal and sound 

research; and (3) any information which 

reveals that marine mammals may have 

been taken in a manner, extent, or 

number not authorized by these 

regulations or subsequent LOAs. 

Endangered Species Act 

Section 7(a)(2) of the ESA (16 U.S.C. 

1531 et seq.) requires that each Federal 

agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

incidental take authorizations, NMFS 

consults internally whenever we 

propose to authorize take for 

endangered or threatened species. 

No incidental take of ESA-listed 

species is 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. 

Request for Information 

NMFS requests interested persons to 

submit comments, information, and 

suggestions concerning the Navy request 

and the proposed regulations (see 

ADDRESSES). All comments will be 

reviewed and evaluated as we prepare a 

final rule and make final determinations 

on whether to issue the requested 

authorization. This proposed rule and 

referenced documents provide all 

environmental information relating to 

our proposed action for public review. 

Classification 

Pursuant to the procedures 

established to implement Executive 

Order 12866, the Office of Management 

and Budget has determined that this 

proposed rule is not significant. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule, if adopted, would not 

have a significant economic impact on 

a substantial number of small entities. 

The U.S. Navy is the sole entity that 

would be subject to the requirements in 

these proposed regulations, and the 

Navy is not a small governmental 

jurisdiction, small organization, or small 

business, as defined by the RFA. 

Because of this certification, a 

regulatory flexibility analysis is not 

required and none has been prepared. 

This proposed rule does not contain 

a collection-of-information requirement 

subject to the provisions of the 

Paperwork Reduction Act (PRA) 

because the applicant is a federal 

agency. Notwithstanding any other 

provision of law, no person is required 

to respond to nor shall a person be 

subject to a penalty for failure to comply 

with a collection of information subject 

to the requirements of the PRA unless 

that collection of information displays a 

currently valid OMB control number. 

These requirements have been approved 

by OMB under control number 0648– 

0151 and include applications for 

regulations, subsequent LOAs, and 

reports. 

List of Subjects in 50 CFR Part 218 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: December 8, 2020. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 218 is proposed to be 

amended as follows: 

PART 218—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 218 

continues to read as follows: 

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

otherwise noted. 

■ 2. Add subpart A to part 218 to read 

as follows: 

Subpart A—Taking and Importing 

Marine Mammals Incidental to U.S. 

Navy Construction at Naval Station 

Norfolk in Norfolk, Virginia 

Sec. 

218.1 Specified activity and geographical 

region. 

218.2 Effective dates. 

218.3 Permissible methods of taking. 

218.4 Prohibitions. 

218.5 Mitigation requirements. 

218.6 Requirements for monitoring and 

reporting. 

218.7 Letters of Authorization. 

218.8 Renewals and modifications of 

Letters of Authorization. 

218.9 [Reserved] 

Subpart A—Taking and Importing 

Marine Mammals Incidental to U.S. 

Navy Construction at Naval Station 

Norfolk in Norfolk, Virginia 

§ 218.1 Specified activity and geographical 

region. 

(a) Regulations in this subpart apply 

only to the U.S. Navy (Navy) and those 

persons it authorizes or funds to 

conduct activities on its behalf for the 

taking of marine mammals that occurs 

in the areas outlined in paragraph (b) of 

this section and that occurs incidental 

to construction activities including 

marine structure maintenance, pile 

replacement, and select waterfront 

improvements at Naval Station 

(NAVSTA) Norfolk. 

(b) The taking of marine mammals by 

the Navy may be authorized in a Letter 

of Authorization (LOA) only if it occurs 

at NAVSTA Norfolk and adjacent Navy 

facilities. 

§ 218.2 Effective dates. 

Regulations in this subpart are 

effective from [EFFECTIVE DATE OF 

THE FINAL RULE] to [DATE 5 YEARS 

AFTER EFFECTIVE DATE OF THE 

FINAL RULE]. 

§ 218.3 Permissible methods of taking. 

Under an LOA issued pursuant to 

§ 216.106 of this chapter and § 218.7, 

the Holder of the LOA (hereinafter 

‘‘Navy’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in § 218.1(b) 

by Level B harassment associated with 

construction activities, provided the 

83024 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

activity is in compliance with all terms, 

conditions, and requirements of the 

regulations in this subpart and the 

applicable LOA. 

§ 218.4 Prohibitions. 

(a) Except for the takings 

contemplated in § 218.3 and authorized 

by a LOA issued under § 216.106 of this 

chapter and § 218.7, it is unlawful for 

any person to do any of the following 

in connection with the activities 

described in § 218.1 may: 

(1) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or a LOA issued under 

§ 216.106 of this chapter and § 218.7; 

(2) Take any marine mammal not 

specified in such LOA; 

(3) Take any marine mammal 

specified in such LOA in any manner 

other than as specified; 

(4) Take a marine mammal specified 

in such LOA if NMFS determines such 

taking results in more than a negligible 

impact on the species or stocks of such 

marine mammal; or 

(5) Take a marine mammal specified 

in such LOA if NMFS determines such 

taking results in an unmitigable adverse 

impact on the species or stock of such 

marine mammal for taking for 

subsistence uses. 

(b) [Reserved] 

§ 218.5 Mitigation requirements. 

(a) When conducting the activities 

identified in § 218.20(a), the mitigation 

measures contained in any LOA issued 

under § 216.106 of this chapter and 

§ 218.7 must be implemented. These 

mitigation measures shall include but 

are not limited to: 

(1) A copy of any issued LOA must be 

in the possession of the Navy, its 

designees, and work crew personnel 

operating under the authority of the 

issued LOA. 

(2) The Navy shall conduct briefings 

for construction supervisors and crews, 

the monitoring team, and Navy staff 

prior to the start of all pile driving 

activity, and when new personnel join 

the work, in order to explain 

responsibilities, communication 

procedures, the marine mammal 

monitoring protocol, and operational 

procedures. 

(3) For in-water heavy machinery 

work other than pile driving, if a marine 

mammal comes within 10 m, the Navy 

shall cease operations and reduce vessel 

speed to the minimum level required to 

maintain steerage and safe working 

conditions. 

(4) For all pile driving activity, the 

Navy shall implement a minimum 

shutdown zone of a 10 m radius around 

the pile. If a marine mammal comes 

within or approaches the shutdown 

zone, such operations shall cease. 

(5) For all pile driving activity, the 

Navy shall implement shutdown zones 

with radial distances as identified in a 

LOA issued under § 216.106 of this 

chapter and § 218.7. If a marine 

mammal comes within or approaches 

the shutdown zone, such operations 

shall cease. 

(6) The Navy shall deploy protected 

species observers (observers) as 

indicated in its Marine Mammal 

Monitoring Plan approved by NMFS. 

(7) For all pile driving activities, a 

minimum of two observers shall be 

stationed at the best vantage points 

practicable to monitor for marine 

mammals and implement shutdown/ 

delay procedures. 

(8) Monitoring shall take place from 

30 minutes prior to initiation of pile 

driving activity through 30 minutes 

post-completion of pile driving activity. 

Pre-activity monitoring shall be 

conducted for 30 minutes to ensure that 

the shutdown zone is clear of marine 

mammals, and pile driving may 

commence when observers have 

declared the shutdown zone clear of 

marine mammals. In the event of a delay 

or shutdown of activity resulting from 

marine mammals in the shutdown zone, 

animals shall be allowed to remain in 

the shutdown zone (i.e., must leave of 

their own volition) and their behavior 

shall be monitored and documented. If 

a marine mammal is observed within 

the shutdown zone, a soft-start cannot 

proceed until the animal has left the 

zone or has not been observed for 15 

minutes. Monitoring shall occur 

throughout the time required to drive a 

pile. If work ceases for more than 30 

minutes, the pre-activity monitoring of 

the shutdown zones must commence. A 

determination that the shutdown zone is 

clear must be made during a period of 

good visibility (i.e., the entire shutdown 

zone and surrounding waters must be 

visible to the naked eye). 

(9) If a marine mammal approaches or 

enters the shutdown zone, all pile 

driving activities at that location shall 

be halted. If pile driving is halted or 

delayed due to the presence of a marine 

mammal, the activity may not 

commence or resume until either the 

animal has voluntarily left and been 

visually confirmed beyond the 

shutdown zone or fifteen minutes have 

passed without re-detection of the 

animal. 

(10) Pile driving activity must be 

halted upon observation of either a 

species for which incidental take is not 

authorized or a species for which 

incidental take has been authorized but 

the authorized number of takes has been 

met, entering or within the harassment 

zone. 

(11) Should environmental conditions 

deteriorate such that marine mammals 

within the entire shutdown zone would 

not be visible (e.g., fog, heavy rain), the 

Navy shall delay pile driving and 

removal until observers are confident 

marine mammals within the shutdown 

zone could be detected. 

(12) Monitoring shall be conducted by 

trained observers, who shall have no 

other assigned tasks during monitoring 

periods. Trained observers shall be 

placed at the best vantage point(s) 

practicable to monitor for marine 

mammals and implement shutdown or 

delay procedures when applicable 

through communication with the 

equipment operator. The Navy shall 

adhere to the following additional 

observer qualifications: 

(i) Independent observers are 

required. 

(ii) At least one observer must have 

prior experience working as an observer. 

(iii) Other observers may substitute 

education (degree in biological science 

or related field) or training for 

experience. 

(iv) Where a team of three or more 

observers are required, one observer 

shall be designated as lead observer or 

monitoring coordinator. The lead 

observer must have prior experience 

working as an observer. 

(v) Personnel who are engaged in 

construction activities may not serve as 

observers. 

(13) The Navy shall use soft start 

techniques for impact pile driving. Soft 

start for impact drivers requires the 

Navy and those persons it authorizes or 

funds to provide an initial set of three 

strikes at reduced energy, followed by a 

30-second waiting period, then two 

subsequent reduced energy three-strike 

sets. Soft start shall be implemented at 

the start of each day’s impact pile 

driving and at any time following 

cessation of impact pile driving for a 

period of thirty minutes or longer. 

(b) [Reserved] 

§ 218.6 Requirements for monitoring and 

reporting. 

(a) The Navy shall submit a Marine 

Mammal Monitoring Plan to NMFS for 

approval in advance of construction. 

(b) The Navy shall deploy observers 

as indicated in its approved Marine 

Mammal Monitoring Plan. 

(c) Observers shall be trained in 

marine mammal identification and 

behaviors. Observers shall have no other 

construction-related tasks while 

conducting monitoring. 

(d) For all pile driving activities, a 

minimum of two observers shall be 

Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 83025 

stationed at the active pile driving site 

or in reasonable proximity in order to 

monitor the shutdown zone. 

(e) The Navy shall monitor the Level 

B harassment zones (areas where SPLs 

are equal to or exceed the 160 dB rms 

threshold for impact driving and the 120 

dB rms threshold during vibratory pile 

driving) to the extent practicable and 

the shutdown zones. The Navy shall 

monitor at least a portion of the Level 

B harassment zone on all pile driving 

days. 

(f) The Navy shall 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. 

(g) The Navy shall submit a draft 

monitoring report to NMFS within 45 

work days of the completion of required 

monitoring for each marine structure 

maintenance, pile replacement, and 

upgrades project. The report must detail 

the monitoring protocol and summarize 

the data recorded during monitoring. If 

no comments are received from NMFS 

within 30 days, the draft report will 

constitute the final report. If comments 

are received, a final report addressing 

NMFS comments must be submitted 

within 30 days after receipt of 

comments. Specifically, the report must 

include: 

(1) Dates and times (begin and end) of 

all marine mammal monitoring. 

(2) Construction activities occurring 

during each daily observation period, 

including how many and what type of 

piles were driven or removed and by 

what method (i.e., impact or vibratory). 

(3) Environmental conditions during 

monitoring periods (at beginning and 

end of observer shift and whenever 

conditions change significantly), 

including Beaufort sea state and any 

other relevant weather conditions 

including cloud cover, fog, sun glare, 

and overall visibility to the horizon, and 

estimated observable distance (if less 

than the harassment zone distance). 

(4) The number of marine mammals 

observed, by species, relative to the pile 

location and if pile driving or removal 

was occurring at time of sighting. 

(5) Age and sex class, if possible, of 

all marine mammals observed. 

(6) Observer locations during marine 

mammal monitoring. 

(7) Distances and bearings of each 

marine mammal observed to the pile 

being driven or removed for each 

sighting (if pile driving or removal was 

occurring at time of sighting). 

(8) Description of any marine 

mammal behavior patterns during 

observation, including direction of 

travel and estimated time spent within 

the Level A and Level B harassment 

zones while the source was active. 

(9) Number of marine mammals 

detected within the harassment zones, 

by species. 

(10) Detailed information about any 

implementation of any mitigation 

triggered (e.g., shutdowns and delays), a 

description of specific actions that 

ensued, and resulting behavior of the 

animal, if any. 

(11) Description of attempts to 

distinguish between the number of 

individual animals taken and the 

number of incidences of take, such as 

ability to track groups or individuals. 

(h) The Navy shall report the 

hydroacoustic data collected as required 

by a LOA issued under § 216.106 of this 

chapter and § 218.7. 

(i) In the event that personnel 

involved in the construction activities 

discover an injured or dead marine 

mammal, the Navy shall report the 

incident to the Office of Protected 

Resources (OPR) (301–427–8401), 

NMFS and to the Greater Atlantic 

Region New England/Mid-Atlantic 

Regional Stranding Coordinator as soon 

as feasible. If the death or injury was 

clearly caused by the specified activity, 

the Navy must immediately cease the 

specified activities until NMFS is able 

to review the circumstances of the 

incident and determine what, if any, 

additional measures are appropriate to 

ensure compliance with the terms of the 

authorization. The Navy must not 

resume their activities until notified by 

NMFS. 

(1) The report must include the 

following information: 

(i) Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

(ii) Species identification (if known) 

or description of the animal(s) involved; 

(iii) Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

(iv) Observed behaviors of the 

animal(s), if alive; 

(v) If available, photographs or video 

footage of the animal(s); and 

(vi) General circumstances under 

which the animal was discovered. 

(2) [Reserved] 

§ 218.7 Letters of Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

the Navy must apply for and obtain an 

LOA. 

(b) An LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed the expiration date 

of these regulations. 

(c) If an LOA expires prior to the 

expiration date of these regulations, the 

Navy may apply for and obtain a 

renewal of the LOA. 

(d) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, the Navy must apply for and 

obtain a modification of the LOA as 

described in § 218.8. 

(e) The LOA shall set forth the 

following information: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(f) Issuance of the LOA shall be based 

on a determination that the level of 

taking will be consistent with the 

findings made for the total taking 

allowable under these regulations. 

(g) Notice of issuance or denial of an 

LOA shall be published in the Federal 

Register within 30 days of a 

determination. 

§ 218.8 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under § 216.106 of 

this chapter and § 218.7 for the activity 

identified in § 218.1(a) shall be renewed 

or modified upon request by the 

applicant, provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for these 

regulations, and 

(2) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under these regulations were 

implemented. 

(b) For LOA modification or renewal 

requests by the applicant that include 

changes to the activity or the mitigation, 

monitoring, or reporting that do not 

change the findings made for the 

regulations or result in no more than a 

minor change in the total estimated 

number of takes (or distribution by 

species or years), NMFS may publish a 

notice of proposed LOA in the Federal 

Register, including the associated 

analysis of the change, and solicit 

public comment before issuing the LOA. 

(c) An LOA issued under § 216.106 of 

this chapter and § 218.7 for the activity 

identified in § 218.1(a) may be modified 

by NMFS under the following 

circumstances: 

(1) NMFS may modify (including 

augment) the existing mitigation, 

83026 Federal Register / Vol. 85, No. 245 / Monday, December 21, 2020 / Proposed Rules 

monitoring, or reporting measures (after 

consulting with Navy regarding the 

practicability of the modifications) if 

doing so creates a reasonable likelihood 

of more effectively accomplishing the 

goals of the mitigation and monitoring 

set forth in the preamble for these 

regulations. 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in a LOA: 

(A) Results from Navy’s monitoring 

from previous years. 

(B) Results from other marine 

mammal and/or sound research or 

studies. 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent LOAs. 

(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 § 216.106 of 

this chapter and § 218.7, a LOA may be 

modified without prior notice or 

opportunity for public comment. Notice 

would be published in the Federal 

Register within 30 days of the action. 

§ 218.9 [Reserved] 

[FR Doc. 2020–27300 Filed 12–18–20; 8:45 am] 

BILLING CODE 3510–22–P