81848 Federal Register / Vol. 89, No. 196 / Wednesday, October 9, 2024 / Rules and Regulations 

than 12 kg (26.5 lb), and shall not 

recommend booster seats for children of 

weights less than 18 kg (40 lb). 

* * * * * 

S7.1.2 * * * 

(d) A child restraint system that is 

recommended by its manufacturer in 

accordance with S5.5 for use either by 

children in a specified weight range that 

includes any children having a weight 

greater than 13.6 kg (30 lb) but not 

greater than 18 kg (40 lb) regardless of 

height, or by children in a specified 

height range that includes any children 

whose height is greater than 870 mm but 

not greater than 1100 mm regardless of 

weight, is tested with a 49 CFR part 572, 

subpart P dummy (Hybrid III 3-year-old 

dummy). 

(e) A child restraint system that is 

recommended by its manufacturer in 

accordance with S5.5 for use either by 

children in a specified weight range that 

includes any children having a weight 

greater than 18 kg (40 lb) but not greater 

than 22.7 kg (50 lb) regardless of height, 

or by children in a specified height 

range that includes any children whose 

height is greater than 1100 mm but not 

greater than 1250 mm regardless of 

weight, is tested with a 49 CFR part 572, 

subpart N dummy (Hybrid III 6- year-old 

dummy). 

* * * * * 

Issued under authority delegated in 49 CFR 

1.95 and 501.5. 

Sophie Shulman, 

Deputy Administrator. 

[FR Doc. 2024–22448 Filed 10–8–24; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 241003–0261] 

RIN 0648–BM74 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to U.S. Navy 

Repair and Replacement of the Q8 

Bulkhead at Naval Station Norfolk 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS, upon request from the 

U.S. Navy (Navy), hereby issues 

regulations to govern the unintentional 

taking of marine mammals incidental to 

the Q8 Bulkhead repair and replacement 

project at Naval Station (NAVSTA) 

Norfolk in Norfolk, Virginia over the 

course of 5 years (i.e., 2025–2029) (the 

Project). These regulations, which allow 

for the issuance of a Letter of 

Authorization (LOA) for the incidental 

take of marine mammals during the 

described activities and specified 

timeframes, prescribe the permissible 

methods of taking and other means of 

effecting the least practicable adverse 

impact on marine mammal species or 

stocks and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: This rule is effective from 

January 1, 2025, through December 31, 

2029. 

ADDRESSES: 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-navysconstruction-activities-q8-bulkheadnaval-station. 

In case of problems accessing these 

documents, please call the contact listed 

below. 

FOR FURTHER INFORMATION CONTACT: 

Craig Cockrell, Office of Protected 

Resources, NMFS, (301) 427–8401 or 

craig.cockrell@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory 

Action 

This rule establishes a framework 

under the authority of the Marine 

Mammal Protection Act (MMPA) (16 

U.S.C. 1361 et seq.) to allow for the 

authorization of take of marine 

mammals incidental to the Navy’s 

construction activities related to the 

Project at NAVSTA Norfolk. 

We received an application from the 

Navy requesting 5-year regulations and 

authorization to take multiple species of 

marine mammals. Take is anticipated to 

occur incidental to impact and vibratory 

pile driving, by Level B harassment 

only. Please see Background below for 

definitions of harassment. 

Legal Authority for the 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 5 years if, 

after notice and public comment, the 

agency makes certain findings and 

issues regulations that set forth 

permissible methods of taking pursuant 

to that activity and other means of 

effecting the ‘‘least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat (see the 

discussion below in the Mitigation 

section), as well as monitoring and 

reporting requirements. Section 

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

implementing regulations at 50 CFR part 

216 subpart I, provide the legal basis for 

issuing this rule containing 5-year 

regulations, and for any subsequent 

letters of authorization (LOAs). As 

directed by this legal authority, this 

final rule contains mitigation, 

monitoring, and reporting requirements. 

Summary of Major Provisions Within 

the Rule 

Following is a summary of the major 

provisions of this final rule regarding 

Navy construction activities. These 

measures include: 

• Required monitoring of the 

construction areas to detect the presence 

of marine mammals before beginning 

construction activities; 

• Shutdown of construction activities 

under certain circumstances to avoid 

injury of marine mammals; and 

• Soft start for impact pile driving to 

allow marine mammals the opportunity 

to leave the area prior to beginning 

impact pile driving at full power. 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions Section 101(a). Sections 

101(a)(5)(A) and (D) of the MMPA (16 

U.S.C. 1361 et seq.) direct the Secretary 

of Commerce (as delegated to NMFS) to 

allow, upon request, the incidental, but 

not intentional, taking of small numbers 

of marine mammals by U.S. citizens 

who engage in a specified activity (other 

than commercial fishing) within a 

specified geographical region if certain 

findings are made and either regulations 

are proposed or, if the taking is limited 

to harassment, a notice of a proposed 

IHA is provided to the public for 

review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses, where 

relevant. Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 


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Federal Register / Vol. 89, No. 196 / Wednesday, October 9, 2024 / Rules and Regulations 81849 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of the takings are set forth 

(Section 101(5)(A)(i)(II)(aa)). The 

definitions of all applicable MMPA 

statutory terms cited above are included 

in the relevant sections below. 

Summary of Request 

On September 14, 2023, NMFS 

received a request from the Navy for 

authorization to take marine mammals 

incidental to repair and replacement of 

the Q8 Bulkhead at NAVSTA Norfolk in 

Norfolk, VA. Following NMFS’ review 

of the application, the Navy submitted 

a revised version on December 18, 2024 

and after review of that application a 

second revised version was submitted 

on January 16, 2024. The application 

was deemed adequate and complete on 

February 23, 2024. A notice of receipt of 

the Navy’s application was published in 

the Federal Register on March 14, 2024 

(89 FR 18605). No comments were 

received on the application during the 

30-day comment period. 

On July 3, 2024, NMFS published a 

notice of proposed rulemaking in the 

Federal Register (89 FR 55180). All 

comments were considered in 

development of this final rule (see 

Comments and Responses). Navy’s 

request is for the take of four species by 

Level B harassment only. Neither Navy 

nor NMFS expect serious injury or 

mortality to result from this activity. 

The regulations will be valid for 5 years 

(2025–2029). No changes were made 

from the proposed to the final rule. 

Description of the Activity 

The Navy proposes to repair and 

replace the Q8 bulkhead at NAVSTA 

Norfolk, that has failed in multiple 

locations, creating sinkholes and unsafe 

conditions. Work on the bulkhead will 

be conducted from Piers 12 and 14 to 

restore function of this Navy dock 

system. Vibratory and impact hammers 

will be used for pile removal and 

installation. Sounds produced from 

these pile removal and installation 

activities may result in the incidental 

take of marine mammals, by Level B 

harassment only. Approximately 378 

piles will be removed and 836 piles will 

be installed. Work will be conducted in 

3 phases over 212 non-consecutive days 

to complete the pile removal and 

installation activities. 

A detailed description of the planned 

construction project is provided in the 

Federal Register notice for the proposed 

rule (89 FR 55180, July 3, 2024). Since 

that time, no changes have been made 

to the planned activities. Therefore, a 

detailed description is not provided 

here. Please refer to that Federal 

Register notice for the description of the 

specific activity. 

Comments and Responses 

NMFS’ notice of proposed rulemaking 

was published in the Federal Register 

on July 3, 2024 (89 FR 55180). That 

proposed rule described, in detail, the 

Navy’s activities, the marine mammal 

species that may be affected by the 

activities, and the anticipated effects on 

marine mammals. In that proposed rule, 

we requested public input on the 

request for authorization described 

therein, our analyses, the proposed 

authorization, and any other aspect of 

the notice of proposed rulemaking, and 

requested that interested persons submit 

relevant information, suggestions, and 

comments. This proposed rule was 

available for a 30-day public comment 

period. 

During the 30-day public comment 

period, NMFS received 2 substantive 

comment submissions, from members of 

the public. NMFS’ responses to the 

comments are provided below, and all 

comments are available online at: 

https://www.regulations.gov/document/ 

NOAA-NMFS-2024-0055-0001/ 

comment. 

Comment 1: A commenter stated that 

the sound propagation equation used by 

the Navy was simplistic and did not 

account for a variety of environmental 

factors that may affect the accuracy of 

the predicted harassment zones 

associated with pile driving. The 

comment stated that at a minimum both 

bottom composition and topography 

should be included in the acoustic 

modeling of the Level B harassment 

zones. 

Response 1: NMFS agrees with the 

commenter that assuming practical 

spreading loss is a simplistic approach 

and excludes certain environmental 

factors that may be influential on real 

transmission loss. However, NMFS 

disagrees with the commenter that the 

acoustic modeling is inadequate and 

‘‘undermines the predictions of Level B 

harassment.’’ The assumption of 

practical spreading loss is an approach 

that is readily accessible to all 

applicants, and while it does exclude 

certain relevant factors, it has been 

supported by hydroacoustic 

measurements in many locations, where 

measured transmission loss coefficients 

typically are between 10 and 30 

depending on the site, measurement 

date, activity, and metric. Further, more 

complex modeling requires detailed 

knowledge of the source spectra, seabed 

composition and associated acoustic 

parameters, and the sound speed 

profile, all of which are often not readily 

available and introduce their own nonnegligible uncertainty. 

In addition, the Navy is among the 

leaders in hydroacoustic measurements 

of pile driving activities (Illingworth 

and Rodkin, 2017; NAVFAC Southwest, 

2020) and continues to contribute to the 

scientific knowledge available on this 

topic. A relevant example can be found 

in the NAVFAC 2017 pile driving noise 

measurement report (Illingworth and 

Rodkin, 2017), wherein transmission 

loss coefficients were measured for a 

variety of pile driving activities at JEB 

Little Creek NAVSTA and NAVSTA 

Norfolk. Transmission loss coefficients 

varied significantly by activity and 

location and ranged from 12.2 to 31.9, 

but were often near 15. This shows that 

while practical spreading is not a 

perfect model, it is a good 

approximation in waters near the 

planned activity. 

Notably, sophisticated propagation 

modeling has been performed for pile 

driving of concrete, composite, and 

timber piles in the Norfolk region. The 

Navy has completed this transmission 

loss modeling and can be reviewed in 

the following document: https://media.

fisheries.noaa.gov/dam-migration/nsn_

pile_driving_final_loa_appendix_b_

may_2020.pdf. While estimated 

transmission loss coefficients are not 

provided in the report, the depthaveraged cumulative SEL is given as a 

function of range in figure 10 in the 

report, for the case of a constant water 

depth of 13 meters (m). This modeling 

scenario was included only for 

illustrative purposes but was deemed by 

the authors to be near the upper bound 

for expected ranges to thresholds for the 

study. By fitting several points from the 

unweighted curve, NMFS has 

determined that the best fit transmission 

loss coefficient for this model result is 

approximately 14.5, which agrees well 

with the practical spreading model. 

Based on the above analyses and 

information, NMFS is confident that the 

analysis of the harassment zones 

reasonably assesses the potential 

impacts to marine mammals and has not 

changed that analysis or the reliance 

upon such analysis in this final rule. 

Comment 2: A commenter urged 

NMFS to implement ‘‘hard limits’’ on 

the number of marine mammals that 

could be taken under an authorization 

granted to the Navy. Further, the 

commenter stated that if take of marine 

mammals exceeded those limits 

construction should be halted until 

NMFS is able to re-analyze the impacts 

of the project. The commenter also 


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urged NMFS to have a ‘‘fair process’’ for 

this authorization and to not give 

special exceptions to the Navy regarding 

their application for an LOA. The 

commenter also recommended that 

NMFS and the Navy consider the use of 

a sound producing device to deter 

marine mammals from the Project area 

in order to reduce the number of 

animals taken during construction 

activities. 

Response 2: NMFS agrees with the 

commenter that takes should be limited 

in numbers for each incidental take 

authorization. In this rule and the 

proposed rule the Navy and NMFS 

estimated takes that were likely to occur 

during the course of this project (see 

Estimate Take section). Take numbers 

for each marine mammal species were 

estimated for each phase of 

construction. The maximum annual take 

numbers for each species may not be 

exceeded in any given year, and the 

total take level may not be exceeded 

over the 5-year period of effectiveness of 

this rule. 

NMFS also agrees with the 

commenter that a fair process for the 

application and issuance of all 

incidental take authorizations should be 

adhered to. Once the application 

submitted by the Navy for this project 

was deemed adequate and complete, 

NMFS published a notice of receipt of 

the application in the Federal Register 

(89 FR 18605, March 14, 2024) with a 

30-day comment period for the public to 

review and comment on the contents of 

the application. After the comment 

period concluded, NMFS developed a 

proposed rule (89 FR 55180, July 3, 

2024) to further engage the public on the 

analyses of the project and the impacts 

to marine mammals in the Project area. 

That proposed rule process included a 

30-day comment period for the public. 

NMFS reviewed and responded 

comments submitted on the proposed 

rule and determined if any changes 

were necessary in the final rule. This 

process is in accordance with the 

relevant requirements of the MMPA and 

of the Administrative Procedure Act, 

and is applied in the same fashion to all 

applicants for incidental take 

authorizations. 

NMFS agrees that sound producing 

devices may be a useful tool for 

deterring marine mammals in certain 

circumstances and when warranted, 

e.g., when deterrence may prevent 

mortality or serious injury. This project 

will only result in behavioral 

disturbance (Level B harassment) which 

may result in (1) changing durations of 

surfacing and dives, number of blows 

per surfacing, or moving direction and/ 

or speed; (2) reduced/increased vocal 

activities; (3) changing/cessation of 

certain behavioral activities (e.g., 

socializing or feeding); (4) visible startle 

response or aggressive behavior (e.g., 

tail/fluke slapping or jaw clapping); (5) 

avoidance of areas where sound sources 

are located (Thorson and Reyff, 2006) 

(see Behavioral Effects section for more 

information). Therefore, for this project 

NMFS disagrees with the use of acoustic 

deterrence devices since those devices 

would produce the same level of 

harassment as the construction activities 

of this project. 

Changes From the Proposed Rule to 

Final Rule 

On May 3, 2024, NMFS published (89 

FR 36762) and solicited public comment 

on its draft updated Technical Guidance 

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

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance), which includes updated 

thresholds and weighting functions to 

inform auditory injury estimates, and is 

intended to replace the 2018 Technical 

Guidance referenced above, once 

finalized. NMFS completed a basic 

comparative analysis based on the 

updated Technical Guidance and has 

updated the Level A harassment and 

shutdown zones (see Estimated Take 

and Mitigation). This change is 

necessary because the authorization and 

regulations issued under this rule are 

effective for 5 years and the updated 

Technical Guidance will be effective 

before this rule expires. This updated 

analysis did not change the anticipated 

take numbers analyzed through this 

rule. 

Description of Marine Mammals in the 

Area of Specified Activities 

Sections 3 and 4 of the application 

summarize available information 

regarding status and trends, distribution 

and habitat preferences, and behavior 

and life history of the potentially 

affected species. NMFS fully considered 

all of this information, and we refer the 

reader to these descriptions, instead of 

reprinting the information. Additional 

information regarding population trends 

and threats may be found in NMFS’ 

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’ website at: https://

www.fisheries.noaa.gov/find-species. 

Table 3 lists all species or stocks for 

which take is expected and proposed to 

be authorized for this activity, 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. PBR is defined by the 

MMPA as the maximum number of 

animals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 

optimum sustainable population (as 

described in NMFS’ SARs) (section 3 

(19)(A)). While no serious injury or 

mortality is anticipated or proposed to 

be authorized here, PBR and annual 

serious injury and mortality from 

anthropogenic sources are included here 

as gross indicators of the status of the 

species or stocks and other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in this region are assessed in 

NMFS’ U.S. Atlantic SARs. All values 

presented in table 1 are the most recent 

available at the time of publication 

(including from the draft 2023 SARs) 

and are available online at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments. 


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Federal Register / Vol. 89, No. 196 / Wednesday, October 9, 2024 / Rules and Regulations 81851 

TABLE 1—SPECIES LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES 1

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 2

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 3

PBR Annual 

M/SI 4

Order Artiodactyla—Infraorder Cetacea—Mysticeti (baleen whales) 

Family Balaenopteridae 

(rorquals): 

Humpback whale .............. Megaptera novaeangliae ........ Gulf of Maine .......................... -,-, N 1,396 (0, 1380, 2016) ... 22 12.15 

Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Bottlenose dolphin ............ Tursiops truncatus .................. Northern Migratory Coastal .... -, -, Y 6,639 (0.41, 4,759, 

2016).

48 12.2–21.5 

Southern Migratory Coastal .... -, -, Y 3,751 (0.6, 2,353, 2016) 24 0–18.3 

Northern NC Estuarine ........... -, -, N 823 (0.06, 782, 2017) ... 7.8 7.2–30 

Family Phocoenidae (porpoises): 

Harbor porpoise ................ Phocoena phocoena ............... Gulf of Maine/Bay of Fundy .... -, -, N 85,765 (0.53, 56,420, 

2021).

649 145 

Order Carnivora—Pinnipedia 

Family Phocidae (earless 

seals): 

Harbor Seal ...................... Phoca vitulina ......................... Western North Atlantic ............ -, -, N 61,336 (0.08, 57,637, 

2018).

1,729 339 

1 Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy’s Committee on Taxonomy 

(https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/). 2ESA 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. 3 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 4These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. 

A detailed description of the species 

likely to be affected by the Navy’s 

construction project, including brief 

introductions to the species and 

relevant stocks as well as available 

information regarding population trends 

and threats, and information regarding 

local occurrence, were provided in the 

Federal Register notice for the proposed 

rule (89 FR 55180, July 3, 2024); since 

that time, we are not aware of any 

changes in the status of these species 

and stocks; therefore, detailed 

descriptions are not provided here. 

Please refer to that Federal Register 

notice for these descriptions. Please also 

refer to NMFS’ website (https://

www.fisheries.noaa.gov/find-species) for 

generalized species accounts. 

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. 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, 2019) recommended that marine 

mammals be divided into hearing 

groups based on directly measured 

(behavioral or auditory evoked potential 

techniques) or estimated hearing ranges 

(behavioral response data, anatomical 

modeling, etc.). 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 2. 

TABLE 2—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. 


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81852 Federal Register / Vol. 89, No. 196 / Wednesday, October 9, 2024 / Rules and Regulations 

TABLE 2—MARINE MAMMAL HEARING GROUPS—Continued 

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

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. 

Effects of Specified Activities on Marine 

Mammals and Their Habitat 

The effects of underwater noise from 

the Navy’s construction activities have 

the potential to result in behavioral 

harassment of marine mammals in the 

vicinity of the Project area. The 

proposed rule (89 FR 55180, July 3, 

2024) included a discussion of the 

effects of anthropogenic noise on marine 

mammals and the potential effects of 

underwater noise from the Navy’s 

construction on marine mammals and 

their habitat. That information and 

analysis is referenced in this final rule 

and is not repeated here; please refer to 

the proposed rule (89 FR 55180, July 3, 

2024). 

Estimated Take of Marine Mammals 

This section provides an estimate of 

the number of incidental takes that may 

be authorized, which will inform both 

NMFS’ consideration of ‘‘small 

numbers,’’ and the negligible impact 

determinations. 

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) (16 U.S.C. 

1362(18)(A)(i)–(ii)). 

Authorized takes would be by Level B 

harassment only, in the form of 

disruption of behavioral patterns for 

individual marine mammals resulting 

from exposure to sounds emitted from 

pile driving. Based on the nature of the 

activity and the anticipated 

effectiveness of the mitigation measures 

(i.e., shutdown zones) discussed in 

detail below in the Mitigation section, 

Level A harassment is neither 

anticipated nor would be authorized. 

As described previously, no serious 

injury or mortality is anticipated or 

authorized for this activity. Below we 

describe how the take numbers are 

estimated. 

For acoustic impacts, 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 potential 

takes, additional information that can 

qualitatively inform take estimates is 

also sometimes available (e.g., previous 

monitoring results or average group 

size). Below, we describe the factors 

considered here in more detail and 

present the take estimates. 

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 permanent 

threshold shift (PTS) of some degree 

(equated to Level A harassment). 

Level B Harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 

factors related to the source or exposure 

context (e.g., frequency, predictability, 

duty cycle, duration of the exposure, 

signal-to-noise ratio, distance to the 

source), the environment (e.g., 

bathymetry, other noises in the area, 

predators in the area), and the state of 

the receiving animals (e.g., hearing, 

motivation, experience, demography, 

life stage, depth) and can be difficult to 

predict (e.g., Southall et al., 2007, 2021, 

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

available science indicates and the 

practical need to use a threshold based 

on a metric that is both predictable and 

measurable for most activities, NMFS 

typically uses a generalized acoustic 

threshold based on received level to 

estimate the onset of behavioral 

harassment. NMFS generally predicts 

that marine mammals are likely to be 

behaviorally harassed in a manner 

considered to be Level B harassment 

when exposed to underwater 

anthropogenic noise above root-meansquared pressure received levels (RMS 

SPL) of 120 dB (referenced to one 

micropascal (re one mPa)) for continuous 

(e.g., vibratory pile driving) and above 

RMS SPL 160 dB re one mPa for nonexplosive impulsive (e.g., seismic 

airguns) or intermittent (e.g., scientific 

sonar) sources. Generally speaking, 

Level B harassment take estimates based 

on these behavioral harassment 

thresholds are expected to include any 

likely takes by temporary threshold shift 

(TTS) as, in most cases, the likelihood 

of TTS occurs at distances from the 

source less than those at which 

behavioral harassment is likely. TTS of 

a sufficient degree can manifest as 

behavioral harassment, as reduced 

hearing sensitivity and the potential 

reduced opportunities to detect 

important signals (i.e., conspecific 

communication, predators, and prey) 

may result in changes in behavior 

patterns that would not otherwise occur. 

The Navy’s activity includes the use 

of continuous (e.g., vibratory pile 

driving and removal) and impulsive 

(e.g., impact pile driving) sources, and 

therefore the RMS SPL thresholds of 120 

and 160 dB re one mPa are applicable. 

The ensonified area associated with 

Level A harassment is more technically 

challenging to predict due to the need 


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to account for a duration component. 

Therefore, NMFS developed an optional 

User Spreadsheet tool to accompany the 

Technical Guidance that can be used to 

relatively simply predict an isopleth 

distance for use in conjunction with 

marine mammal density or occurrence 

to help predict potential takes. We note 

that because of some of the assumptions 

included in the methods underlying this 

optional tool, we anticipate that the 

resulting isopleth estimates are typically 

going to be overestimates of some 

degree, which may result in an 

overestimate of potential take by Level 

A harassment. However, this optional 

tool offers the best way to estimate 

isopleth distances when more 

sophisticated modeling methods are not 

available or practical. For stationary 

sources impact or vibratory pile driving 

and removal, the optional User 

Spreadsheet tool predicts the distance at 

which, if a marine mammal remained at 

that distance for the duration of the 

activity, it would be expected to incur 

PTS. Inputs used in the optional User 

Spreadsheet tool, and the resulting 

estimated isopleths, are reported below. 

For concurrent activities where 

combined impact and vibratory hammer 

scenarios shown in table 9, the 

estimated Level A harassment distances 

reflect the impact driving activity and 

the estimated Level B harassment 

distances reflect the combined vibratory 

source levels for that activity. 

On May 3, 2024, NMFS published (89 

FR 36762) and solicited public comment 

on its draft updated Technical Guidance 

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

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance), which includes updated 

thresholds and weighting functions to 

inform auditory injury estimates, and is 

intended to replace the 2018 Technical 

Guidance referenced above, once 

finalized. The public comment period 

ended on June 17, 2024, and although 

the updated Technical Guidance is not 

final, we expect the updated Technical 

Guidance to represent the best available 

science once it is. To best ensure we 

have considered an appropriate estimate 

of take by Level A harassment, in 

consideration of the best available 

science, we have conducted basic 

comparative calculations using the draft 

updated Technical Guidance for the 

purposes of understanding the number 

of takes by Level A harassment 

(auditory injury) that would be 

predicted if the draft updated Technical 

Guidance were finalized with no 

changes. The relevant draft updated 

thresholds and weighting functions may 

be found in the executive summary of 

the draft updated Technical Guidance, 

on pages 3 and 4. We have also 

considered whether modifications to 

mitigation zones would be appropriate 

in light of the draft updated Technical 

Guidance. Based on the outcome of 

these comparisons/analyses using the 

draft updated Technical Guidance, 

NMFS has made changes as appropriate 

to the required shutdown zones 

necessary to avoid Level A harassment. 

These updates to the estimated 

harassment zones (see table 8 and table 

9) and resulting changes to the required 

shutdown zones (see table 11 and table 

12) are minor and do not result in any 

changes to the take levels as described 

in the proposed rule and analyzed 

through this final rule. 

These thresholds are provided in table 

3 and table 4 below. The references, 

analysis, and methodology used in the 

development of the thresholds are 

described in NMFS’ 2018 Technical 

Guidance and the draft NMFS’ 2024 

Technical Guidance, both of which may 

be accessed at: https://www.fisheries.

noaa.gov/national/marine-mammalprotection/marine-mammal-acoustictechnical-guidance. 

TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF AUDITORY INJURY

[NMFS 2018] 

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 one 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 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. 

TABLE 4—UPDATED THRESHOLDS IDENTIFYING THE ONSET OF AUDITORY INJURY (AUD INJ) 

[NMFS 2024] 

Hearing group 

AUD INJ Onset Thresholds * 

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1: Lp,0-pk,flat: 222 dB; LE,p, LF,24h: 183 dB ................ Cell 2: LE,p, LF,24h: 197 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 3: Lp,0-pk,flat: 230 dB; LE,p, HF,24h: 193 dB ................ Cell 4: LE,p, HF,24h: 201 dB. 

Very High-Frequency (VHF) Cetaceans .......................... Cell 5: Lp,0-pk,flat: 202 dB; LE,p,VHF,24h: 159 dB ............... Cell 6: LE,p, VHF,24h: 181 

dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lp,0-pk,flat: 223 dB; LE,p,PW,24h: 183 dB ................ Cell 8: LE,p,PW,24h: 195 dB. 


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TABLE 4—UPDATED THRESHOLDS IDENTIFYING THE ONSET OF AUDITORY INJURY (AUD INJ)—Continued 

[NMFS 2024] 

Hearing group 

AUD INJ Onset Thresholds * 

(received level) 

Impulsive Non-impulsive 

Otariid Pinnipeds (OW) (Underwater) ............................. Cell 9: Lp,0-pk,flat: 230 dB; LE,p,OW,24h: 185 dB ................ Cell 10: LE,p,OW,24h: 199 

dB. 

* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating AUD INJ onset. If a non-impulsive 

sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds are recommended for consideration. 

Note: Peak sound pressure level (Lp,0-pk) has a reference value of 1 μPa, and weighted cumulative sound exposure level (LE,p) has a reference value of 1μPa2s. In this table, thresholds are abbreviated to be more reflective of International Organization for Standardization standards 

(ISO 2017). The subscript ‘‘flat’’ is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized hearing 

range of marine mammals (i.e., 7 Hz to 165 kHz). The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, HF, and VHF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted 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 

thresholds will be exceeded. 

Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that are used in estimating the area 

ensonified above the acoustic 

thresholds, including source levels and 

transmission loss coefficient. 

The sound field in the Project area is 

the existing background noise plus 

additional construction noise from the 

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 and removal). The 

maximum underwater area ensonified 

above the thresholds for individual 

activities of behavioral harassment 

referenced above is 93.5 square 

kilometers (km2)(36.1 miles (mi2)) and 

will consist of an area reaching the 

opposite shoreline of the river (see 

figures 6.6, 6.8, and 6.10 in the Navy’s 

application for the Incidental Take 

Authorization for the Q8 bulkhead 

Project). The maximum (underwater) 

area ensonified above the thresholds for 

concurrent activities of behavioral 

harassment referenced above is 97.9 

km2 (37.8 mi2) and will consist of a 

similar area reaching the opposite 

shoreline of the river as individual 

activities (see figures 6.11–6.16 in the 

Navy’s application). Additionally, 

vessel traffic and other commercial and 

industrial activities in the Project area 

may contribute to elevated background 

noise levels which may mask sounds 

produced by the Project. 

Transmission loss (TL) is the decrease 

in acoustic intensity as an acoustic 

pressure wave propagates out from a 

source. TL parameters vary with 

frequency, temperature, sea conditions, 

current, source and receiver depth, 

water depth, water chemistry, and 

bottom composition and topography. 

The general formula for underwater TL 

is: 

TL = B * Log10 (R1/R2) 

Where 

TL = transmission loss in dB 

B = transmission loss coefficient 

R1 = the distance of the modeled SPL from 

the driven pile, and 

R2 = the distance from the driven pile of the 

initial measurement 

This formula neglects loss due to 

scattering and absorption, which is 

assumed to be zero here. The degree to 

which underwater sound propagates 

away from a sound source is dependent 

on a variety of factors, most notably the 

water bathymetry and presence or 

absence of reflective or absorptive 

conditions including in-water structures 

and sediments. Spherical spreading 

occurs in a perfectly unobstructed (i.e., 

free-field) environment not limited by 

depth or water surface, resulting in a 6- 

dB reduction in sound level for each 

doubling of distance from the source 

(20*log[range]). Cylindrical spreading 

occurs in an environment in which 

sound propagation is bounded by the 

water surface and sea bottom, resulting 

in a reduction of three dB in sound level 

for each doubling of distance from the 

source (10*log[range]). A practical 

spreading value of 15 is often used 

under conditions, such as the Project 

site, where water increases with depth 

as the receiver moves away from the 

shoreline, resulting in an expected 

propagation environment that will lie 

between spherical and cylindrical 

spreading loss conditions. Practical 

spreading loss is assumed here. 

The intensity of pile driving sounds is 

greatly influenced by factors such as the 

type of piles, hammers, and the physical 

environment in which the activity takes 

place. In order to calculate the distances 

to the Level A harassment and the Level 

B harassment sound thresholds for the 

methods and piles being used in this 

Project, the Navy and NMFS used 

acoustic monitoring data from other 

locations to develop proxy source levels 

for the various pile types, sizes, and 

methods. The Project includes vibratory 

and impact installation of prestressed 

concrete and composite piles and 

vibratory removal of existing concrete 

piles. Steel sheet piles to make up the 

wall of the bulkhead will be installed 

with vibratory hammers. Source levels 

for each pile size and driving method 

for individual activities are presented in 

table 5. For concurrent activities where 

two noise sources have overlapping 

sound fields, there is potential for 

higher sound levels than for nonoverlapping sources because the 

isopleth of one sound source 

encompasses the sound source of 

another isopleth. In such instances, the 

sources are considered additive and 

combined using the rules of decibel 

addition. For addition of two 

simultaneous sources, the difference 

between the two sound source levels is 

calculated, and: (1) if that difference is 

between zero and one dB, three dB are 

added to the higher sound source level; 

(2) if the difference is between two or 

three dB, two dB are added to the 

highest sound source level; (3) if the 

difference is between four to nine dB, 

one dB is added to the highest sound 

source level; and (4) with differences of 

10 dB or more, there is no addition. 

Source levels for each pile size and 

vibratory driving for concurrent 

activities are presented in table 6. 


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TABLE 5—PROXY SOUND SOURCE LEVELS FOR PILE SIZES AND DRIVING METHODS

Pile size Method 

Proxy source level 

Literature source dB RMS re 

1μPa 

dB SEL re 

1μPa2sec 

dB peak re 

1μPa 

56-in sheet pile ...................... Vibratory ............................... 168 N/A N/A Illingworth and Rodkin, 2017. 

18-in concrete ........................ Vibratory ............................... 162 N/A N/A Caltrans, 2020. 

16-in composite ..................... Vibratory ............................... 158 N/A N/A Illingworth and Rodkin, 2017. 

18-in concrete ........................ Impact ................................... 170 160 185 e4sciences, 2023. 

16-in composite ..................... Impact ................................... 169 157 177 Illingworth and Rodkin, 2017. 

TABLE 6—PROXY SOUND SOURCE LEVELS FOR CONCURRENT ACTIVITIES

Pile size and type 

Vibratory 

installation 

source 1 

[dB RMS] 

Vibratory 

extract 

source 2 

[dB RMS] 

Revised SL 

to be used 

[dB RMS] 

Source 1: Vibratory hammer 56-in steel sheet pile; Source 2: Vibratory extraction 

of 18-in concrete pile ............................................................................................. 168 162 169 

Source 1: Vibratory hammer 18-in concrete pile; Source 2: Vibratory extraction of 

18-in concrete pile .................................................................................................. 162 162 165 

Source 1: Vibratory hammer 56-in steel sheet pile; Source 2: 16 in composite pile 168 158 168 

TABLE 7—USER SPREADSHEET INPUT PARAMETERS USED FOR CALCULATING LEVEL A HARASSMENT ISOPLETHS

Phase 

(year) 

Pile size and installation 

method Spreadsheet tab used 

Weighting 

factor 

adjustment 

(kHz) 

Number of 

strikes per pile 

Number of 

piles per day 

Activity 

duration 

(minutes) 

Phase 1 (Year 1) ..................... 18-in concrete impact installation.E.1 Impact pile driving ......... 2 307 6 N/A 

18-in concrete vibratory extraction.A.1 Vibratory pile driving ..... 2.5 N/A 6 14 

56-in sheet pile vibratory installation.A.1 Vibratory pile driving ..... 2.5 N/A 6 24 

Phase II (Year 2) ..................... 18-in concrete impact installation.E.1 Impact pile driving ......... 2 499 6 N/A 

18-in concrete vibratory extraction.A.1 Vibratory pile driving ..... 2.5 N/A 6 26 

56-in sheet pile vibratory installation.A.1 Vibratory pile driving ..... 2.5 N/A 6 28 

Phase III (Year 3) .................... 16-in composite impact installation.E.1 Impact pile driving ......... 2 540 6 N/A 

18-in concrete vibratory installation.E.1 Impact pile driving ......... 2 540 6 N/A 

16-in composite vibratory extraction.A.1 Vibratory pile driving ..... 2.5 N/A 6 20 

56-in sheet pile vibratory installation.A.1 Vibratory pile driving ..... 2.5 N/A 6 38 

TABLE 8—CALCULATED LEVEL A AND LEVEL B HARASSMENT ISOPLETHS FOR INDIVIDUAL ACTIVITIES

Phase 

(year) Activity 

Level A harassment zone 

(m) 1 Level B 

harassment 

LF- zone(m) 

cetaceans 

HF (MF)- 

cetaceans 

VHF (HF)- 

cetaceans Phocids 

Phase 1 (Year 1) ................................. 18-in concrete impact installation ....... 43.9 (43.6) 5.6 (1.6) 67.8 (52.3) 38.9 (23.5) 46.4 

18-in concrete vibratory extraction ..... 13.5 (10.0) 5.2 (0.9) 11.0 (14.7) 17.3 (6.1) 6,310 

56-in sheet pile vibratory installation .. 48.4 (35.9) 18.6 (3.2) 39.5 (53.0) 62.3 (21.8) 15,849 

Phase II (Year 2) ................................. 18-in concrete impact installation ....... 60.8 (60.8) 7.7 (2.2) 93.7 (72.4) 53.8 (32.5) 46.4 

18-in concrete vibratory extraction ..... 20.3 (15.1) 7.8 (1.3) 16.6 (22.3) 26.2 (9.2) 6,310 

56-in sheet pile vibratory installation .. 53.7 (39.7) 20.6 (3.2) 43.8 (58.7) 69.1 (24.2) 15,849 

Phase III (Year 3) ................................ 16-in composite impact installation ..... 40.4 (40.4) 5.1 (1.4) 62.3 (48.1) 35.8 (21.6) 39.8 

18-in concrete impact installation ....... 64.0 (64.0) 8.1 (2.3) 98.7 (76.3) 56.7 (34.3) 46.4 

16-in composite vibratory extraction ... 9.2 (6.8) 3.5 (0.6) 7.5 (10.1) 11.9 (4.2) 3,415 

56-in sheet pile vibratory installation .. 65.8 (48.7) 25.3 (4.3) 53.7 (72.0) 84.7 (29.6) 15,849 

1 Harassment zones shown in parentheticals are based on the 2018 technical guidance and were presented in the proposed rule. 


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TABLE 9—CALCULATED LEVEL A AND LEVEL B HARASSMENT ISOPLETHS FOR CONCURRENT ACTIVITIES

Phase 

(year) Activity 

Level A harassment zone 

(m) 1 Level B 

harassment 

LF- zone (m) 

cetaceans 

MF (HF)- 

cetaceans 

HF (VHF)- 

cetaceans Phocids 

Phase 1 (Year 1) ................................. Vibratory extract 18-in concrete piles 

and vibratory install 56-in steel 

sheet piles.

56.4 (41.8) 21.7 (3.7) 46.1 (61.8) 72.7 (25.4) 18,478 

Vibratory extract 18-in concrete piles; 

vibratory install 56-in steel sheet 

piles; impact install 18-in concrete 

piles.

43.9 (43.9) 5.6 (1.6) 67.8 (52.3) 38.9 (23.5) 18,478 

Phase II (Year 2) ................................. Vibratory extract 18-in concrete piles 

and vibratory install 56-in steel 

sheet piles.

62.6 (46.3) 24.0 (4.1) 51.1 (68.5) 80.5 (28.2) 18,478 

Vibratory install 56-in steel sheet piles 

and impact install 18-in concrete 

piles.

60.8 (60.8) 7.7 (2.2) 93.7 (72.4) 53.8 (32.5) 15,849 

Phase III (Year 3) ................................ Vibratory extract 18-in concrete piles 

and vibratory install 56-in steel 

sheet piles.

65.8 (56.8) 25.3 (5.0) 53.7 (84.0) 84.7 (34.5) 18,478 

Vibratory install 56-in steel sheet piles 

and impact install 16-in composite 

piles.

40.4 (40.4) 5.1 (1.4) 62.3 (48.1) 35.8 (21.6) 15,849 

1 Harassment zones shown in parentheticals are based on the 2018 technical guidance and were presented in the proposed rule. 

The maximum distance to the Level A 

harassment threshold during 

construction will be during the 

vibratory driving of 56-inch (in) 

concrete piles during Phase III of 

individual activities (i.e., 84.7 m for 

harbor seals) and during the concurrent 

vibratory extraction of 18-in concrete 

piles and vibratory installation of 56-in 

steel sheet piles for concurrent activities 

of Phase III (i.e., 84.7 m for harbor seals). 

Given these relatively small isopleths, if 

a marine mammal enters the shutdown 

zone during vibratory or impact pile 

driving it is expected that the 

construction activity will be shut down 

before any marine mammal would incur 

PTS. Therefore, no take by Level A 

harassment is expected during the 

construction activities associated with 

the Q8 bulkhead. The largest calculated 

Level B harassment isopleth extends out 

to 18,478 m, which will result from 

concurrent pile driving of the scenarios 

presented in table 9. The largest Level 

B harassment zone of 18,478 m is not an 

attainable observable distance in all 

directions, but in some areas the 

distance is smaller due to the zone being 

cut off by landmasses. The Level B 

harassment zone will be monitored to 

the maximum extent possible. 

Marine Mammal Occurrence and Take 

Estimation 

In this section we provide information 

about the occurrence of marine 

mammals, including density or other 

relevant information which will inform 

the take calculations. We describe how 

the information provided is synthesized 

to produce a quantitative estimate of the 

take that is reasonably likely to occur 

and may be authorized. 

Humpback Whale 

Humpback whales occur in the mouth 

of the Chesapeake Bay and nearshore 

waters of Virginia during winter and 

spring months. Several satellite tagged 

humpback whales were detected west of 

the Chesapeake Bay Bridge Tunnel, 

including two individuals with 

locations near NAVSTA Norfolk and 

Joint Expeditionary Base Little Creek 

(Aschettino et al., 2017). Group size was 

not reported in these surveys; however, 

most whales detected were juveniles. 

Although two individuals were detected 

in the vicinity of the Project area during 

shipboard surveys conducted in 2020, 

there is no evidence that they lingered 

for multiple days (Aschettino, 2020). 

Because no density estimates are 

available for the species in this area, the 

Navy estimated, and NMFS concurs, 

that one potential sighting of an average 

size group (i.e., two individuals) could 

occur every 60 days of pile driving. 

Therefore, given the number of Project 

days expected in each year, NMFS will 

authorize a total of 16 takes by Level B 

harassment of humpback whale over the 

5-year authorization, with no more than 

four takes by Level B harassment in a 

given year. 

The largest Level A harassment zone 

for low-frequency cetaceans extends 

approximately 65.8 m from the source 

during concurrent activities for the 

vibratory extraction of 18-in concrete 

piles and vibratory install 56-in steel 

sheet piles (table 9). The Navy plans to 

shut down if a humpback whale is 

sighted within any of the Level A 

harassment zones for all activities. 

Therefore, NMFS will not authorize take 

by Level A harassment of humpback 

whales. 

Bottlenose Dolphins 

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. 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. To calculate potential 

Level B harassment takes of bottlenose 

dolphin, NMFS conservatively 

multiplied the density of 1.38 dolphin/ 

km2 (from Engelhaupt et al., 2016) by 

the largest Level B harassment isopleth 

for each activity (tables 7 and 8), and 

then by the number of days associated 

with that activity. For example, to 

calculate Level B harassment takes 

associated with work at the Q8 

bulkhead in Phase I for the vibratory 

removal of 18-in concrete piles, NMFS 

multiplied the density (i.e., 1.38 

dolphins/km2) by the Level B 

harassment zone for that activity (i.e., 

43.3 km2) by the proportional number of 

pile driving days for that activity (i.e., 

24 days) for a total of 1,437 Level B 

harassment takes for that activity during 

Phase I. Takes by Level B harassment 

were calculated for both individual pile 

driving activities and concurrent pile 

driving activities, as authorized takes 

are conservatively based on the scenario 

that produces more takes by Level B 

harassment (table 9). Therefore, NMFS 

will authorize 14,191 takes by Level B 


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harassment of bottlenose dolphin across 

all 5 years, with no more than 6,168 

takes in a given year. 

The largest Level A harassment zone 

for mid-frequency cetaceans extends 

approximately 25.3 m from the source 

during individual and concurrent 

activities during Phase III (table 8 and 

table 9). The Navy plans to shut down 

all activities if a bottlenose dolphin is 

sighted within the shutdown zones for 

mid-frequency cetaceans. Therefore, 

NMFS will not authorize take by Level 

A harassment of bottlenose dolphins. 

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 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). 

Due to there being no density 

estimates for the species in the Project 

area, the Navy conservatively estimated 

one exposure of two porpoises for every 

60 days of pile driving. Total pile 

driving days for Phase I will be 74 days, 

Phase II will be 37 days, and Phase III 

will be 101 days. Takes by Level B 

harassment were calculated for both 

individual pile driving activities and 

concurrent pile driving activities, as 

authorized takes are conservatively 

based on the scenario that produced the 

larger exposure estimate (table 11). 

Using the above methodology, NMFS 

calculated an exposure estimate of eight 

incidents of take for harbor porpoises. 

NMFS does not expect any Level A 

harassment of harbor porpoise during 

this Project. The largest Level A 

harassment zone for high-frequency 

cetaceans extends approximately 98.7 m 

from the source during individual 

activities during Phase III (table 8). The 

Navy plans to shut down all activities 

if a harbor porpoise is sighted within 

the shutdown zones for high-frequency 

cetaceans. Therefore, NMFS will not 

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 Navy at the CBBT 

rock armor and portal islands from 2014 

through 2019 (Jones et al., 2020). The 

average daily seal count from the field 

season ranged from eight to 23 seals, 

with an average of 13.6 harbor seals 

across all the field seasons. 

NMFS expects that harbor seals are 

likely to be present from November to 

April and, consistent with other recent 

projects (88 FR 31633, May 18, 2023; 87 

FR 15945, March 31, 2022; 86 FR 24340; 

May 6, 2021, and 86 FR 17458; April 2, 

2021), NMFS calculated take by Level B 

harassment by multiplying 13.6 seals by 

the maximum number of pile driving 

days expected to occur from November 

through April. Therefore, we expect the 

total number of takes by Level B 

harassment for harbor seals to be 2,882. 

NMFS does not expect any Level A 

harassment of harbor seals during this 

Project. The largest Level A harassment 

zone for phocids extends approximately 

84.7 m from the source during 

individual and concurrent activities 

during Phase III (table 8 and table 9). 

The Navy plans to shut down all 

activities if a harbor porpoise is sighted 

within the shutdown zones for phocids. 

Therefore, NMFS will not authorize take 

by Level A harassment of harbor seals. 

TABLE 10—TAKES BY LEVEL B HARASSMENT BY SPECIES AND STOCK IN COMPARISON TO STOCK ABUNDANCE

LOA construction phase 

(year) Species 

Level B 

(individual 

activities) 

Level B 

(concurrent 

activities) 

Total Stock 

abundance 

Percentage of 

stock 

Phase 1 ............................... Humpback .......................... 2 2 2 1,396 <1 

Bottlenose dolphin—Northern Migratory (NM) 1 2.5,414 2,888 2,607 6,639 39.27 

Bottlenose dolphin—Southern Migratory (SM) 1 2.2,607 3,751 69.50 

Bottlenose dolphin—NC Estuarine 1 2.200 823 24.30 

Harbor porpoise ................. 4 2 4 85,765 <1 

Harbor seal ......................... 1,006 408 1,006 61,336 1.64 

Phase 2 ............................... Humpback .......................... 2 2 2 1,396 <1 

Bottlenose dolphin—NM 1 2 2,609 2,179 1,205 6,639 18.15 

Bottlenose dolphin—SM 1 2 1,205 3,751 32.12 

Bottlenose dolphin—NC Estuarine 1 2.200 823 24.30 

Harbor porpoise ................. 2 2 2 85,765 <1 

Harbor seal ......................... 503 653 653 61,336 1.06 

Phase 3 ............................... Humpback .......................... 4 2 4 1,396 <1 

Bottlenose dolphin—NM 1 2 6,168 6,712 3,256 6,639 49.04 

Bottlenose dolphin—SM 1 2 3,256 3,751 85.80 

Bottlenose dolphin—NC Estuarine 1 2.200 823 24.30 

Harbor porpoise ................. 4 2 4 85,765 <1 

Harbor seal ......................... 1,236 625 1,373 61,336 2.24 

1Take estimates are weighted based on the assumed percentages of population for each distinct stock, those percentages were also used to 

predict the proportion of animals present in the Project area from each stock. Please see Small Numbers section for additional information. 2Assumes multiple repeated takes of the same individuals. Please see Small Numbers section for additional information. 


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Mitigation 

In order to issue an IHA under section 

101(a)(5)(D) 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. 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, NMFS considers 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 (e.g., 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. 

In addition to the measures described 

later in this section, the Navy will 

employ the following mitigation 

measures: 

• The Navy will conduct briefings 

between construction supervisors and 

crews, the marine mammal monitoring 

team, and Navy staff 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; 

• If a marine mammal comes within 

10 m of construction activities, 

including in-water heavy machinery 

work, operations shall cease and vessels 

shall reduce speed to the minimum 

level required to maintain steerage and 

safe working conditions; and 

• Pile driving activity must be halted 

upon observation of either a species for 

which incidental take is not authorized 

or a species for which incidental take 

has been authorized but the authorized 

number of takes has been met, entering 

or is within the harassment zone. 

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 

will 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 11 and table 12). 

Protected Species Observers (PSO)— 

The placement of PSOs during all pile 

driving and removal activities 

(described in the Monitoring and 

Reporting section) will ensure that the 

entire shutdown zone is visible. A 

minimum of two PSOs will be used 

during all activities. 

Monitoring for Level A and B 

Harassment—The Navy will monitor 

the Level B harassment zones (i.e., areas 

where SPLs are equal to or exceed the 

160 dB rms threshold for impact pile 

driving, and the 120 dB rms threshold 

during vibratory pile driving and 

removal) to the extent practicable, and 

all of the Level A harassment zones and 

shutdown zones, during 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. Pile driving may commence 

following 30 minutes of observation 

when the determination is made that the 

shutdown zones are clear of marine 

mammals. If a marine mammal is 

observed within the shutdown zones 

listed in table 11 or table 12, pile 

driving activity must be delayed or 

halted. If pile driving is delayed or 

halted due to the presence of a marine 

mammal, the activity may not 

commence or resume until either the 

animal has voluntarily exited and been 

visually confirmed beyond the 

shutdown zones or 15 minutes have 

passed without re-detection of the 

animal. If work ceases for more than 30 

minutes, the pre-activity monitoring of 

the shutdown zones will commence. A 

determination that the shutdown zone is 

clear must be made during a period of 

good visibility (i.e., the entire shutdown 

zone and surrounding waters must be 

visible to the naked eye). 

Soft Start—Soft start procedures are 

used to provide additional protection to 

marine mammals by providing 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, 

then two subsequent reduced-energy 

strike sets. Soft starts 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. 

TABLE 11—SHUTDOWN AND MONITORING ZONES FOR INDIVIDUAL ACTIVITIES

Phase 

(year) Activity 

Shutdown zones 

(m) 1 Level B 

monitoring 

zones all 

marine 

mammals 

LFcetaceans VHF (HF)- 

cetaceans 

All other 

marine 

mammals 

Phase 1 (Year 1) ................... 18-in concrete impact installation ................ 50 (50) 70 (60) 40 (30) 50 

18-in concrete vibratory extraction ............... 20 (10) 20 (20) 20 (10) 6,310 

56-in sheet pile vibratory installation ........... 50 (40) 40 (60) 60 (30) 15,850 

Phase II (Year 2) 18-in concrete impact installation ................ 70 (70) 100 (80) 60 (40) 50 

18-in concrete vibratory extraction ............... 20 (20) 20 (30) 30 (10) 6,310 


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Federal Register / Vol. 89, No. 196 / Wednesday, October 9, 2024 / Rules and Regulations 81859 

TABLE 11—SHUTDOWN AND MONITORING ZONES FOR INDIVIDUAL ACTIVITIES—Continued 

Phase 

(year) Activity 

Shutdown zones 

(m) 1 Level B 

monitoring 

zones all 

marine 

mammals 

LFcetaceans VHF (HF)- 

cetaceans 

All other 

marine 

mammals 

56-in sheet pile vibratory installation ........... 60 (40) 50 (60) 70 (30) 15,850 

Phase III (Year 3) .................. 16-in composite impact installation .............. 50 (50) 70 (50) 40 (30) 40 

18-in concrete impact installation ................ 70 (70) 100 (80) 60 (40) 50 

16-in composite vibratory extraction ............ 10 (10) 10 (20) 20 (10) 3,415 

56-in sheet pile vibratory installation ........... 70 (50) 60 (80) 90 (30) 15,850 

1Shutdown zones shown in parentheticals are based on the 2018 technical guidance and were presented in the proposed rule. 

TABLE 12—SHUTDOWN AND MONITORING ZONES FOR CONCURRENT ACTIVITIES

Phase 

(year) Activity 

Shutdown zones 

(m) 1 Level B 

monitoring 

zones all 

marine 

mammals 

LFcetaceans HFcetaceans 

All other 

marine 

mammals 

Phase 1 (Year 1) ................... Vibratory extract 18-in concrete piles and 

vibratory install 56-in steel sheet piles.

60 (50) 50 (70) 80 (30) 18,480 

Vibratory extract 18-in concrete piles; vibratory install 56-in steel sheet piles; impact 

install 18-in concrete piles.

50 (70) 70 (90) 40 (40) 18,480 

Phase II (Year 2) ................... Vibratory extract 18-in concrete piles and 

vibratory install 56-in steel sheet piles.

70 (50) 60 (70) 80 (30) 18,480 

Vibratory install 56-in steel sheet piles and 

impact install 18-in concrete piles.

70 (50) 100 (80) 60 (30) 15,850 

Phase III (Year 3) .................. Vibratory extract 18-in concrete piles and 

vibratory install 56-in steel sheet piles.

70 (50) 60 (70) 90 (30) 18,480 

Vibratory install 56-in steel sheet piles and 

impact install 16-in composite piles.

60 (50) 50 (80) 40 (30) 15,850 

1Shutdown zones shown in parentheticals are based on the 2018 technical guidance and were presented in the proposed rule. 

Based on our evaluation of the 

applicant’s mitigation measures, as well 

as other measures considered by NMFS, 

NMFS has determined that the 

mitigation measures provide the means 

of 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. 

Monitoring and Reporting 

In order to issue an IHA for an 

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

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present while conducting the activities. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• 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 

activity; 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); and 

• Mitigation and monitoring 

effectiveness. 

Visual Monitoring 

Marine mammal monitoring during 

pile driving and removal must be 

conducted by qualified, NMFS 

approved PSOs, in accordance with the 

following: 

• PSOs must be independent of the 

activity contractor (e.g., employed by a 

subcontractor) and have no other 

assigned tasks during monitoring 

periods; 

• 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 other 

relevant experience, education (i.e., a 

degree in biological science or related 

field), or training for prior experience 

performing the duties of a PSO during 


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construction activity pursuant to a 

NMFS-issued incidental take 

authorization; 

• PSOs must be approved by NMFS 

prior to beginning any activity subject to 

an LOA issued under this final rule; and 

• A lead observer or monitoring 

coordinator must be designated. The 

lead observer must have prior 

experience performing the duties of a 

PSO during construction activity 

pursuant to a NMFS-issued incidental 

take authorization. 

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: (1) The number and species 

of marine mammals observed; (2) dates 

and times when in-water construction 

activities were conducted; (3) dates, 

times, and reason for implementation of 

mitigation (or why mitigation was not 

implemented when required); and (4) 

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. 

Given the configuration of the 

harassment zones, which vary 

depending on the pile type/size and the 

pile driver type (tables 9 and 10), it is 

assumed that 2 PSOs will be sufficient 

to monitor the zones for impact drivers, 

and 3 to 4PSOs will be sufficient to 

monitor the zones for vibratory drivers 

given the placement of the observers in 

the vicinity of the Project area. 

However, additional monitors may be 

added if warranted by the level of 

marine mammal activity in the area. 

PSOs will be placed at the best vantage 

point(s) practicable (figure 1) to monitor 

for marine mammals and implement 

shutdown/delay procedures when 

applicable by calling for the shutdown 

by the pile driver operator. PSOs will be 

deployed on the Green Mile Fishing Pier 

during vibratory driving of piles when 

monitoring zones are exceptionally 

large. 

Monitoring will be conducted 30 

minutes before, during, and after all in 

water construction activities. In 

addition, observers shall record all 

incidents of marine mammal 

occurrence, regardless 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. 

Figure 1 Protected Species Observer 

Locations at NAVSTA Norfolk at 

Norfolk, Virginia 

Acoustic Monitoring 

The Navy will implement in situ 

acoustic monitoring efforts to measure 

SPLs from in-water construction 

activities for pile types and methods 

that have not been previously collected 

at NAVSTA Norfolk (table 13). The 

Navy will collect and evaluate acoustic 

sound recording levels during pile 

driving activities. The Navy will collect 

data on 10 percent of the number of 

total piles driven for each pile type. 

Hydrophones will be placed at locations 

33 feet (ft) from the noise source and, 

where the potential for Level A (PTS 

onset) harassment exists, at a second 

representative monitoring location that 

is a distance of 20 times the depth of 

water at the pile location, to the 

maximum extent practicable. For the 

pile driving events acoustically 

measured, 100 percent of the data will 

be analyzed. Please see the Navy’s 


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Legend 

® Potential Protected Sj:)ecies Observer Locations 

This product may contain Controlled Unclas$ified lnfamation (CUI). 

Reproduction, distribution; publication, or exhibition oflhese data is strictly 

prohibited >Mlhoutthe written consent oflhe lnotallalion Security Office. 

0.5 

0.5 2 

Miles 

2 

Kilometers 
Federal Register / Vol. 89, No. 196 / Wednesday, October 9, 2024 / Rules and Regulations 81861 

Acoustic Monitoring Plan and section 13.2 in the application for additional 

detail. 

TABLE 13—NUMBER OF PILES FOR HYDROACOUSTIC MONITORING

Pile type Total piles Method of install of removal Number 

monitored 

18-in concrete ............................................................... 200 Vibratory ....................................................................... 20 

18-in concrete ............................................................... 184 Impact ........................................................................... 18 

56-in steel sheet ........................................................... 547 Vibratory ....................................................................... 55 

16-in composite ............................................................ 178 Vibratory ....................................................................... 18 

16-in composite ............................................................ 105 Impact ........................................................................... 11 

Environmental data shall be collected 

and will include, but will not be limited 

to, the following: (1) wind speed and 

direction; (2) air temperature; (3) 

humidity; (4) surface water temperature; 

(5) water depth; (6) wave height; (7) 

weather conditions; and (8) other factors 

that could contribute to influencing 

underwater sound levels (e.g., aircrafts, 

boats, etc.). 

Reporting 

The Navy is required to submit an 

annual report on all activities and 

marine mammal monitoring results to 

NMFS within 90 days following the end 

of each construction year. Additionally, 

a draft comprehensive 5-year summary 

report must be submitted to NMFS 

within 90 days of the end of the Project. 

The annual reports will include an 

overall description of work completed, 

a narrative regarding marine mammal 

sightings, and associated PSO data 

sheets. 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: (a) how many and what type 

of piles were driven or removed and the 

method (i.e., impact or vibratory); and 

(b) the total duration of time for each 

pile (vibratory driving) or number of 

strikes for each pile (impact driving); 

• PSO locations during marine 

mammal monitoring; and 

• 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. 

Upon observation of a marine 

mammal the following information must 

be reported: 

• Name of PSO who sighted the 

animal(s) and PSO location and activity 

at the time of the sighting; 

• Time of the sighting; 

• Identification of the animal(s) (e.g., 

genus/species, lowest possible 

taxonomic level, or unidentified), PSO 

confidence in identification, and the 

composition of the group if there is a 

mix of species; 

• Distance and bearing of each 

observed marine mammal relative to the 

pile being driven or removed for each 

sighting; 

• Estimated number of animals (min/ 

max/best estimate); 

• Estimated number of animals by 

cohort (e.g., adults, juveniles, neonates, 

group composition, etc.); 

• Description of any marine mammal 

behavioral observations (e.g., observed 

behaviors such as feeding or traveling), 

including an assessment of behavioral 

responses thought to have resulted from 

the activity (e.g., no response or changes 

in behavioral state such as ceasing 

feeding, changing direction, flushing, or 

breaching); 

• Number of marine mammals 

detected within the harassment zones, 

by species; and 

• Detailed information about 

implementation of any mitigation (e.g., 

shutdowns and delays), a description of 

specified actions that ensured, and 

resulting changes in behavior of the 

animal(s), if any. 

The acoustic monitoring report must 

contain the informational elements 

described in the Acoustic Monitoring 

Plan and, at minimum, must include: 

• Hydrophone equipment and 

methods: (1) recording device, sampling 

rate, distance (m) from the pile where 

recordings were made; and (2) the depth 

of water and recording device(s); 

• Type and size of pile being driven, 

substrate type, method of driving during 

recordings (e.g., hammer model and 

energy), and total pile driving duration; 

• Whether a sound attenuation device 

is used and, if so, a detailed description 

of the device used and the duration of 

its use per pile; 

• For impact pile driving: (1) number 

of strikes and strike rate; (2) depth of 

substrate to penetrate; (3) pulse duration 

and mean, median, and maximum 

sound levels (dB re: one mPa): (4) root 

mean square sound pressure level 

(SPLrms); and (5) cumulative sound 

exposure level (SELcum), peak sound 

pressure level (SPLpeak), and singlestrike sound exposure level (SELs-s); 

and 

• For vibratory driving/removal: (1) 

duration of driving per pile; and 2) 

mean, median, and maximum sound 

levels (dB re: one mPa): SPLrms, 

SELcum (and timeframe over which the 

sound is averaged). 

If no comments are received from 

NMFS within 30 days, the draft reports 

will constitute the final reports. If 

comments are received, a final report 

addressing NMFS’ comments must be 

submitted within 30 days after receipt of 

comments. All PSO datasheets and/or 

raw sighting data must be submitted 

with the draft marine mammal report. 

Reporting Injured or Dead Marine 

Mammals 

In the unanticipated event that the 

specified activity clearly causes the take 

of a marine mammal in a manner 

prohibited by the LOA (if issued) and 

the regulations (e.g., an injury, serious 

injury, or mortality) the Navy shall 

report the incident to Office of Protected 

Resources, NMFS, and the Greater 

Atlantic Region New England/MidAtlantic Stranding Coordinator. The 

report must include the following 

information: 

• Description of the incident; 

• Environmental conditions (e.g., 

Beaufort sea state, visibility); 

• Description of all marine mammal 

observations in the 24 hours preceding 

the incident; 

• Species identification or 

description of the animal(s) involved; 

• Fate of the animal(s); and 

• Photographs or video footage of the 

animal(s) (if equipment is available). 

Activities will not resume until NMFS 

is able to review the circumstances of 

the prohibited take. NMFS will work 

with the Navy to determine what is 

necessary to minimize the likelihood of 

further prohibited take and ensure 

MMPA compliance. The Navy will not 


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be able to resume their activities until 

notified by NMFS. 

In the event that the Navy discovers 

an injured or dead marine mammal, and 

the lead PSO determines that the cause 

of the injury or death is unknown and 

the death is relatively recent (e.g., in 

less than a moderate state of 

decomposition as described in the next 

paragraph), the Navy will immediately 

report the incident to the Office of 

Protected Resources, NMFS, and the 

Greater Atlantic Region New England/ 

Mid-Atlantic Stranding Coordinator. 

The report will include the same 

information identified in the paragraph 

above. Activities will be able to 

continue while NMFS reviews the 

circumstances of the incident. NMFS 

will work with the Navy to determine 

whether modifications in the activities 

are appropriate. 

In the event that the Navy discovers 

an injured or dead marine mammal and 

the lead PSO determines that the injury 

or death is not associated with or related 

to the activities authorized in the LOA 

(e.g., previously wounded animal, 

carcass with moderate to advanced 

decomposition, or scavenger damage), 

the Navy will report the incident to the 

Office of Protected Resources, NMFS, 

and the NMFS Greater Atlantic Region 

New England/Mid-Atlantic Stranding 

Coordinator, within 24 hours of the 

discovery. The Navy will provide 

photographs, video footage (if available), 

or other documentation of the stranded 

animal sighting to NMFS and the 

Marine Mammal Stranding Network. 

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 impacts or responses (e.g., 

intensity, duration), the context of any 

impacts or responses (e.g., critical 

reproductive time or location, foraging 

impacts affecting energetics), as well as 

effects on habitat, and the likely 

effectiveness of the mitigation. We also 

assess the number, intensity, and 

context of estimated takes by evaluating 

this information relative to population 

status. Consistent with the 1989 

preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the 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 analysis applies to all 

the species listed in table 3, given that 

many of the anticipated effects of this 

Project on different marine mammal 

stocks are expected to be relatively 

similar in nature. Where there are 

meaningful differences between species 

or stocks, or groups of species, 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. 

Construction 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 and removal. 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. 

Level A harassment is unlikely 

considering the small Level A 

harassment zones (tables 9 and 10) and 

corresponding shutdown zones (tables 

12 and 13) where activities will cease if 

animals were present in those zones. 

Also, pile driving and removal activities 

are of relatively short duration and an 

animal will have to remain within the 

area estimated to be ensonified above 

the Level A harassment threshold for 

multiple hours to incur PTS. This is 

highly unlikely given marine mammal 

movement throughout the area, 

especially for small, fast-moving species 

such as small cetaceans and pinnipeds. 

Therefore, NMFS is not proposing to 

authorize take by Level A harassment 

during any portion of the Navy’s 

activities. 

The nature of activities included in 

the Navy’s pile driving Project 

precludes the likelihood of serious 

injury or mortality. For all species and 

stocks, take will occur within a limited, 

confined area (i.e., immediately 

surrounding NAVSTA Norfolk in the 

Chesapeake Bay area) of the stock’s 

range. Level B harassment will be 

reduced to the level of least practicable 

adverse impact through use of 

mitigation measures described herein. 

Furthermore, the number of individuals 

expected to be taken is extremely small 

relative to the stock abundance for all 

species. 

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, decreased 

foraging (if such activity were 

occurring), or avoidance (e.g., Thorson 

and Reyff 2006; Hampton Roads 

Connector Partners 2023; W.F. Magann 

Corporation 2023). 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 longterm 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 long-term adverse effects. 

Level B harassment will be minimized 

through use of mitigation measures 

described herein and, if take does occur 

the impacts would be expected to be 

minimal, particularly as the Project is 

located on a busy waterfront with high 

amounts of vessel traffic and other 

ambient noise. 

An unusual mortality event (UME) 

has been declared for humpback whales 

in the U.S. Atlantic. However, we do not 

expect authorized takes to exacerbate or 

compound upon these ongoing UMEs. 

As noted previously, no injury, serious 

injury, or mortality is expected or 

authorized, and the impact of Level B 

harassment takes of humpback whale 

will be minimized through the 

incorporation of the mitigation 

measures. 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) remains healthy. 

The Project is also not expected to 

have significant adverse effects on 

affected marine mammals’ habitats. The 


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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; however, 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 determination that the impacts 

resulting from this activity are not 

expected to adversely affect any of the 

species or stocks through effects on 

annual rates of recruitment or survival: 

• No serious injury or mortality is 

anticipated or authorized; 

• The intensity of anticipated takes 

by Level B harassment is relatively low 

for all stocks; 

• The specified activity and 

associated ensonified areas are very 

small relative to the overall habitat 

ranges of all species and do not include 

habitat areas of special significance, 

including any pinniped haulouts; 

• The lack of anticipated significant 

or long-term negative effects to marine 

habitat; 

• The presumed efficacy of the 

mitigation measures in reducing the 

effects of the taking incidental to the 

specified activity; and 

• Monitoring reports from similar 

work in the Chesapeake Bay have 

documented little to no effect on 

individuals of the same species 

impacted by similar activities. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat and taking into 

consideration the implementation of the 

monitoring and mitigation measures, 

NMFS finds that the total marine 

mammal take from the activity will have 

a negligible impact on all affected 

marine mammal species or stocks. 

Small Numbers 

As noted previously, only take of 

small numbers of marine mammals may 

be authorized under sections 

101(a)(5)(A) and (D) 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 

maximum number of individuals taken 

in any year 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 maximum annual 

number of individuals to be taken is 

fewer than one-third of the species or 

stock abundance, the take is considered 

to be of small numbers. Additionally, 

other qualitative factors may be 

considered in the analysis, such as the 

temporal or spatial scale of the 

activities. 

The maximum annual take NMFS 

authorizes for the four marine mammal 

stocks is below one-third of the 

estimated stock abundance for all 

species except for the western north 

Atlantic (WNA) southern coastal 

migratory stock and the WNA northern 

coastal migratory stock of bottlenose 

dolphins (see table 10). 

There are three bottlenose dolphin 

stocks that could occur in the Project 

area. Therefore, the largest estimated 

annual take by Level B harassment of 

6,712 bottlenose dolphin will likely be 

split among the northern migratory 

coastal stock, the southern migratory 

coastal stock, and the northern North 

Carolina estuarine stock (NNCES). 

Based on the stocks’ respective 

occurrence in the area, NMFS estimates 

that there will be no more than 200 

takes from the NNCES stock during each 

phase of construction, representing 24 

percent of that population, with the 

remaining takes split evenly between 

the northern and southern coastal 

migratory stocks. Based on the 

consideration of various factors as 

described below, we have determined 

that the number of individuals taken 

will comprise less than one-third of the 

best available population abundance 

estimate of either coastal migratory 

stock. Detailed descriptions of the 

stocks’ ranges have been provided in the 

Description of Marine Mammals in the 

Area of Specified Activities section. 

Both the WNA northern migratory 

stock and the WNA southern migratory 

stock have expansive ranges and they 

are the only dolphin stocks thought to 

make broad scale, seasonal migrations 

in coastal waters of the WNA. Given the 

large ranges associated with these two 

stocks, it is unlikely that large segments 

of either stock will 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 northern migratory stock is found 

during warm water months from coastal 

Virginia, including the Chesapeake Bay 

and Long Island, New York. The stock 

migrates south in the late summer and 

fall. During cold-water months, 

dolphins may be found in coastal waters 

from Cape Lookout, North Carolina, to 

the North Carolina/Virginia border. 

During January-March, the WNA 

southern migratory stock appears to 

move as far south as northern Florida. 

From April-June, the stock moves back 

north to North Carolina. During the 

warm water months of July-August, the 

stock is presumed to occupy the coastal 

waters north of Cape Lookout, North 

Carolina, to Assateague, Virginia, 

including the Chesapeake Bay. There is 

likely some overlap between the stocks 

during spring and fall migrations, but 

the extent of overlap is unknown. 

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 a species or stock: 

• The maximum annual take of 

marine mammal stocks for authorization 

comprises less than three percent of any 

stock abundance (with the exception of 

the three bottlenose dolphin stocks); 

• 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 will be unlikely to find a high 

percentage of the individuals 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 will be 

unlikely to find a high percentage of any 

stock concentrated at such boundaries; 

and 

• Many of the takes will likely be 

repeats of the same animals, including 

from a resident population of the 

Chesapeake Bay. 

Based on the analysis contained 

herein of the activity (including the 

mitigation and monitoring measures) 

and the anticipated take of marine 

mammals, NMFS finds that small 

numbers of marine mammals will be 

taken relative to the population size of 

the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has determined that 

the total taking of affected species or 

stocks will not have an unmitigable 


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adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must review our action 

(i.e., the promulgation of regulations 

and subsequent issuance of 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 (IHAs with no 

anticipated serious injury or mortality) 

of the Companion Manual for NOAA 

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 will preclude this 

categorical exclusion. Accordingly, 

NMFS has determined that the action 

qualifies to be categorically excluded 

from further review under NEPA. 

Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (ESA; 16 U.S.C. 

1531 et seq.) requires that each Federal 

agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

IHAs, NMFS consults internally 

whenever NMFS authorizes take for 

endangered or threatened species. 

No incidental take of ESA-listed 

species is authorized or expected to 

result from this activity. Therefore, 

NMFS has determined that formal 

consultation under section 7 of the ESA 

is not required for this action. 

Classification 

Pursuant to the procedures 

established to implement Executive 

Order 12866, the Office of Management 

and Budget has determined that this 

rule is not significant. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce certified to 

the Chief Counsel for Advocacy of the 

Small Business Administration at the 

proposed rule stage that this action will 

not have a significant economic impact 

on a substantial number of small 

entities. The Navy is the sole entity that 

will be subject to the requirements in 

these regulations, and the Navy is not a 

small governmental jurisdiction, small 

organization, or small business, as 

defined by the RFA. No comments were 

received regarding this certification or 

on the economic impacts of the rule 

more generally. As a result, a regulatory 

flexibility analysis is not required and 

none has been prepared. 

This rule does not contain a 

collection-of-information requirement 

subject to the provisions of the 

Paperwork Reduction Act because the 

applicant is a Federal agency. 

List of Subjects in 50 CFR 217 

Acoustics, Administrative practice 

and procedure, Construction, 

Endangered and threatened species, 

Marine mammals, Mitigation and 

Monitoring requirements, Reporting 

requirements, Wildlife. 

Dated: October 4, 2024. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

NMFS amends 50 CFR part 217 as 

follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 217 

continues to read as follows: 

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

otherwise noted. 

■ 2. Add subpart X to read as follows 

Subpart X—Taking and Importing Marine 

Mammals Incidental to Navy Construction 

of the Q8 Bulkhead Repair and 

Replacement Project at Naval Station 

Norfolk at Norfolk, Virginia 

Sec. 

217.230 Specified activity and geographical 

region. 

217.231 Effective dates. 

217.232 Permissible methods of taking. 

217.233 Prohibitions. 

217.234 Mitigation requirements. 

217.235 Requirements for monitoring and 

reporting. 

217.236 Letters of Authorization. 

217.237 Renewals and modifications of 

Letters of Authorization. 

Subpart X—Taking and Importing 

Marine Mammals Incidental to Navy 

Construction of the Q8 Bulkhead 

Repair and Replacement Project at 

Naval Station Norfolk at Norfolk, 

Virginia 

§ 217.230 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 related to the 

repair and replacement of the Q8 

bulkhead at Naval Station Norfolk at 

Norfolk, Virginia. 

(b) The taking of marine mammals by 

the Navy may be authorized in a Letter 

of Authorization (LOA) only if it occurs 

at Naval Station Norfolk, Norfolk, 

Virginia. 

§ 217.231 Effective dates. 

Regulations under this subpart are 

effective from January 1, 2025, through 

December 31, 2029. 

§ 217.232 Permissible methods of taking. 

Under an LOA issued pursuant to 

§§ 216.106 of this chapter and 217.236, 

the Holder of the LOA (hereinafter 

‘‘Navy’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in 

§ 217.230(b) by harassment associated 

with construction activities related to 

the repair and replacement of the Q8 

bulkhead, provided the activity is in 

compliance with all terms, conditions, 

and requirements of the regulations in 

this subpart and the applicable LOA. 

§ 217.233 Prohibitions. 

(a) Except for the takings 

contemplated in § 217.232 and 

authorized by a LOA issued under 

§§ 216.106 of this chapter and 217.236, 

it is unlawful for any person to do any 

of the following in connection with the 

activities described in § 217.230: 

(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 217.236; 

(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 after 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 after NMFS determined 

such taking results in an unmitigable 

adverse impact on the species or stock 

of such marine mammal for taking for 

subsistence uses. 

(b) [Reserved] 

§ 217.234 Mitigation requirements. 

(a) When conducting the activities 

identified in § 217.230(a), the mitigation 

measures contained in this subpart and 


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any LOA issued under §§ 216.106 of 

this chapter and 217.236 must be 

implemented by the Navy. These 

mitigation measures include: 

(1) A copy of any issued LOA must be 

in the possession of the Navy, 

supervisory construction personnel, 

lead protected species observers (PSO), 

and any other relevant designees of the 

Navy operating under the authority of 

the LOA at all times that activities 

subject to the LOA are being conducted; 

(2) The Navy must ensure that 

construction supervisors and crews, the 

monitoring team, and relevant Navy 

staff are trained prior to the start of 

activities subject to any issued LOA, so 

that responsibilities, communication 

procedures, monitoring protocols, and 

operational procedures are clearly 

understood. New personnel joining 

during the Project must be trained prior 

to commencing work; 

(3) The Navy, construction 

supervisors and crews, and relevant 

Navy staff must avoid direct physical 

interaction with marine mammals 

during construction activity. If a marine 

mammal comes within 10 meters (m) of 

such activity, operations must cease and 

vessels must reduce speed to the 

minimum level required to maintain 

steerage and safe working conditions, as 

necessary to avoid direct physical 

interaction; 

(4) The Navy must employ PSOs and 

establish monitoring locations as 

described in the NMFS-approved 

Marine Mammal Monitoring Plan. The 

Navy must monitor the Project area to 

the maximum extent possible based on 

the required number of PSOs, required 

monitoring locations, and 

environmental conditions; 

(5) For all pile driving activities, the 

Navy shall implement shutdown zones 

with radial distances as identified in a 

LOA issued under § 217.236. If a marine 

mammal is observed entering or within 

the shutdown zone, such operations 

must be delayed or halted. 

(6) Monitoring must take place from 

30 minutes prior to initiation of a pile 

driving activity (i.e., pre-start clearance 

monitoring) through 30 minutes postcompletion of a pile driving activity. 

(7) Pre-start clearance monitoring 

must be conducted during periods of 

visibility sufficient for the lead PSO to 

determine that the shutdown zones are 

clear of marine mammals. Pile driving 

may commence following 30 minutes of 

observation when the determination is 

made that the shutdown zones are clear 

of marine mammals. 

(8) If a marine mammal is observed 

entering or within the shutdown zones, 

pile driving activity must be delayed or 

halted. 

(9) If pile driving is delayed or halted 

due to the presence of a marine 

mammal, the activity may not 

commence or resume until either the 

animal has voluntarily exited and been 

visually confirmed beyond the 

shutdown zone or 15 minutes have 

passed without re-detection of the 

animal. 

(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) The Navy must use soft start 

techniques when impact pile driving. 

Soft start requires contractors to provide 

an initial set of strikes at reduced 

energy, followed by a 30-second waiting 

period, then two subsequent reducedenergy strike sets. A soft start must 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. 

(b) [Reserved] 

§ 217.235 Requirements for monitoring 

and reporting. 

(a) The Navy shall submit a Marine 

Mammal Monitoring Plan to NMFS for 

approval in advance of construction. 

Marine mammal monitoring must be 

conducted in accordance with the 

conditions in this section and the 

NMFS-approved Marine Mammal 

Monitoring Plan. 

(b) Monitoring must be conducted by 

qualified, NMFS-approved PSOs, in 

accordance with the following 

conditions: 

(1) PSOs must be independent of the 

activity contractor (e.g., employed by a 

subcontractor) and have no other 

assigned tasks during monitoring 

periods; 

(2) At least one PSO must have prior 

experience performing the duties of an 

observer during construction activity 

pursuant to a NMFS-issued incidental 

take authorization; 

(3) Other observers may substitute 

other relevant experience, education 

(i.e., degree in biological science or 

related field), or training for prior 

experience performing the duties of an 

observer during construction activity 

pursuant to a NMFS-issued incidental 

take authorization; 

(4) One observer must be designated 

as lead observer or monitoring 

coordinator. The lead observer must 

have prior experience performing the 

duties of a PSO during construction 

activity pursuant to a NMFS-issued 

incidental take authorization; 

(5) Observers must be approved by 

NMFS prior to beginning any activity 

subject to any issued LOA; 

(6) For all pile driving activities, a 

minimum of two observers shall be 

stationed at the best vantage points 

practicable. One of these observers must 

be positioned to monitor for marine 

mammals and implement shutdown/ 

delay procedures; 

(7) The Navy shall monitor the 

harassment zones to the maximum 

extent practicable and the entire 

shutdown zones. The Navy shall 

monitor at least a portion of the Level 

B harassment zone on all pile driving 

days; 

(8) The Navy shall conduct 

hydroacoustic data collection in 

accordance with an Acoustic 

Monitoring Plan that must be approved 

by NMFS in advance of construction; 

(9) The shutdown/monitoring zones 

may be modified with NMFS’ approval 

following NMFS’ acceptance of an 

acoustic monitoring report; 

(10) The Navy must submit a draft 

monitoring report to NMFS within 90 

calendar days of the completion of each 

construction year. A draft 

comprehensive five-year summary 

report must also be submitted to NMFS 

within 90 days of the end of the Project. 

The reports must detail the monitoring 

protocol and summarize the data 

recorded during monitoring. Final 

annual reports and the final 

comprehensive report must be prepared 

and submitted within 30 days following 

resolution of any NMFS comments on 

the draft report. If no comments are 

received from NMFS within 30 days of 

receipt of the draft report, the report 

must be considered final. If comments 

are received, a final report addressing 

NMFS comments must be submitted 

within 30 days after receipt of 

comments. The reports must at 

minimum contain the informational 

elements described below (as well as 

any additional information described in 

the Marine Mammal Monitoring Plan), 

including: 

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

all marine mammal monitoring; 

(ii) Construction activities occurring 

during each daily observation period, 

including the number and type of piles 

that were driven or removed and by 

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

total duration of driving time for each 

pile (vibratory) and number of strikes 

for each pile (impact); 

(iii) PSO locations during marine 

mammal monitoring; 

(iv) Environmental conditions during 

monitoring periods (at beginning and 


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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; 

(v) Upon observation of a marine 

mammal, the following information: 

(A) Name of PSO who sighted the 

animal(s) and PSO location and activity 

at time of sighting; 

(B) Time of sighting; 

(C) Identification of the animal(s) 

(e.g., genus/species, lowest possible 

taxonomic level, or unidentified), PSO 

confidence in identification, and the 

composition of the group if there is a 

mix of species; 

(D) Distance and location of each 

observed marine mammal relative to the 

pile being driven for each sighting; 

(E) Estimated number of animals 

(min/max/best estimate); 

(F) Estimated number of animals by 

cohort (adults, juveniles, neonates, 

group composition, etc.); 

(G) Animal’s closest point of approach 

and estimated time spent within the 

harassment zone; and 

(H) Description of any marine 

mammal behavioral observations (e.g., 

observed behaviors such as feeding or 

traveling), including an assessment of 

behavioral responses thought to have 

resulted from the activity (e.g., no 

response or changes in behavioral state 

such as ceasing feeding, changing 

direction, flushing, or breaching); 

(vi) Number of marine mammals 

detected within the harassment zones, 

by species; and 

(vii) Detailed information about 

implementation of any mitigation (e.g., 

shutdown and delays), a description of 

specific actions that ensued, and 

resulting changes in behavior of the 

animal(s), if any. 

(11) The Holder must submit all PSO 

data electronically in a format that can 

be queried such as a spreadsheet or 

database (i.e., digital images of data 

sheets are not sufficient); 

(12) The Navy must report 

hydroacoustic data collected as required 

by a LOA issued under §§ 216.106 of 

this chapter and 217.236 and as 

discussed in the Navy’s Acoustic 

Monitoring Plan approved by NMFS; 

(13) 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), 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. 

§ 217.236 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 § 217.236. 

(e) The LOA must 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 must be based 

on a determination that the level of 

taking must be consistent with the 

findings made for the total taking 

allowable under these regulations. 

(g) Notice of issuance or denial of an 

LOA must be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.237 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under §§ 216.106 

of this chapter and 217.236 for the 

activity identified in § 217.230(a) may 

be renewed or modified upon request by 

the applicant, provided that: 

(1) The specified activity and 

mitigation, monitoring, and reporting 

measures, as well as the anticipated 

impacts, are the same as those described 

and analyzed for these regulations; and 

(2) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under these regulations were 

implemented. 

(b) For LOA modification or renewal 

requests by the applicant that include 

changes to the activity or the mitigation, 

monitoring, or reporting that do not 

change the findings made for the 

regulations or result in no more than a 

minor change in the total estimated 

number of takes (or distribution by 

species or years), NMFS may publish a 

notice of proposed LOA in the Federal 

Register, including the associated 

analysis of the change, and solicit 

public comment before issuing the LOA. 

(c) A LOA issued under §§ 216.106 of 

this chapter and 217.236 for the activity 

identified in § 217.230(a) may be 

modified by NMFS under the following 

circumstances: 

(1) NMFS may modify (including 

augment) the existing mitigation, 

monitoring, or reporting measures (after 

consulting with Navy regarding the 

practicability of the modifications) if 

doing so creates a reasonable likelihood 

of more effectively accomplishing the 

goals of the mitigation and monitoring 

set forth in the preamble for these 

regulations; 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in a LOA: 

(A) Results from Navy’s monitoring 

from previous years; 

(B) Results from other marine 

mammal and/or sound research or 

studies; and 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent LOAs; and 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS must 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 


khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 89, No. 196 / Wednesday, October 9, 2024 / Rules and Regulations 81867 

a LOA issued pursuant to § 216.106 of 

this chapter and § 217.236, a LOA may 

be modified without prior notice or 

opportunity for public comment. 

Notification will be published in the 

Federal Register within 30 days of the 

action. 

[FR Doc. 2024–23392 Filed 10–8–24; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 240919–0246] 

RTID 0648–XR137 

Endangered and Threatened Wildlife 

and Plants; Technical Correction for 

the Coral Fimbriaphyllia paradivisa 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Direct final rule. 

SUMMARY: We, NMFS, announce the 

revised taxonomy of the coral Euphyllia 

paradivisa (no common name) under 

the Endangered Species Act of 1973, as 

amended (ESA). We are revising the 

Enumeration of threatened marine and 

anadromous species for Euphyllia 

paradivisa to reflect the scientifically 

accepted taxonomy and nomenclature of 

this species. We revise the scientific 

name of the species to Fimbriaphyllia 

paradivisa. The changes to the 

taxonomic classification and 

nomenclature do not affect the species’ 

listing status under the ESA or any 

protections and requirements arising 

from its listing. 

DATES: The rule is effective December 9, 

2024 without further action, unless 

significnt adverse comment is received 

by November 8, 2024. If significant 

adverse comments are received, the 

NMFS will publish a timely withdrawal 

of the rule in the Federal Register. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2024–0078, by the following 

method: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2024–0078 in the Search 

box. Click on the ‘‘Comment’’ 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 https://www.regulations.gov 

without change. All personal identifying 

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

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). 

FOR FURTHER INFORMATION CONTACT: 

Lance Smith, NMFS, Pacific Islands 

Regional Office, 808–725–5131, 

Lance.Smith@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Purpose of This Rule 

The purpose of our direct final rule is 

to notify the public that we are revising 

the Enumeration of threatened marine 

and anadromous species (50 CFR 

223.102(e)) to reflect the scientifically 

accepted taxonomy and nomenclature of 

one coral species, Euphyllia paradivisa, 

listed under section 4 of the ESA in 

2014 (16 U.S.C. 1531 et seq.). The 

change reflects the most recently 

accepted scientific name in accordance 

with 50 CFR 223.102(b). 

We are publishing this rule as a direct 

final rule because this is a 

noncontroversial action that reflects 

decisions already taken in the scientific 

community, such that prior notice and 

an opportunity to comment is 

unnecessary. This rule does not change 

the listing status of the species under 

the ESA and does not alter any 

protections afforded the species or any 

other legal requirements arising from 

the species’ listing under the ESA. This 

change should be undertaken in as 

timely a manner as possible. This rule 

will be effective, as published in this 

document on the effective date specified 

in DATES, unless we receive significant 

adverse comments on or before the 

comment due date specified in DATES. 

Significant adverse comments are 

comments that provide strong scientific 

justification as to why the taxonomic 

and nomenclature changes to the 

Enumeration of the listed entity should 

not be adopted or why the rule should 

be changed. Please include sufficient 

scientific information with your 

comments that will allow us to verify 

the basis for any significant adverse 

comments. 

If we receive significant adverse 

comments, we will publish a 

notification in the Federal Register 

withdrawing this rule before the 

effective date, and we will engage in 

notice and comment rulemaking under 

the applicable requirements of the 

Administrative Procedure Act to 

promulgate these changes to 50 CFR 

223.102(e). 

Background 

Under 50 CFR 223.102(b), we use the 

most recently accepted scientific name 

of any species that we have determined 

to be threatened under the ESA, relying 

to the extent practicable on the 

International Code of Zoological 

Nomenclature (ICZN). The ESA likewise 

requires that listing decisions be based 

solely on the best scientific and 

commercial data available (see 16 U.S.C. 

1533(b)(1)(A)). Using the best available 

scientific information, our direct final 

rule documents a taxonomic change 

(scientific name) to Euphyllia 

paradivisa. This change is supported by 

studies published in peer-reviewed 

journals, acceptance by the World 

Register of Marine Species, our 5-year 

Review of the species (NMFS 2024), and 

broad acceptance by scientists around 

the world. We revise the scientific name 

of Euphyllia paradivisa listed under 

section 4 of the ESA (16 U.S.C. 1531 et 

seq.) as follows: Fimbriaphyllia 

paradivisa. We make this change to the 

Enumeration of threatened marine and 

anadromous species (50 CFR 223.102(e)) 

to reflect the most recently accepted 

scientific name in accordance with 50 

CFR 223.102(b). 

Taxonomy Classification 

Fimbriaphyllia paradivisa 

Based on colony growth form, Veron 

& Pichon (1980) established two 

subgenera within the genus Euphyllia, 

namely Euphyllia and Fimbriaphyllia. 

Veron (1990) described the species 

Euphyllia paradivisa, placing it in 

Euphyllia instead of Fimbriaphyllia 

based on skeletal and tentacle 

morphological characteristics. More 

recently, molecular data showed that 

the species traditionally ascribed to the 

genus Euphyllia could be separated into 

two major lineages that were distinct 

enough to fall within two separate 

genera (Luzon et al. 2017, Arrigoni et al. 

2023). Luzon et al. (2017) demonstrated 

that these two major lineages, can be 

distinguished based on the polyp 

morphology and reproductive traits. As 

such, Luzon et al. (2017) elevated 

Fimbriaphyllia from a subgenera within 

the genus Euphyllia to a separate genus 

to be composed of five species, namely 

F. ancora, F. divisa, F. paraancora, F. 

paradivisa, and F. yaeyamensis; this 

taxonomic change was supported by the 

results of Arrigoni et al. (2023). There 

has been broad acceptance among 

scientists around the world of the 

taxonomic change suggested by these 


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