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

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 240621-0172]</DEPDOC> <RIN>RIN 0648-BM74</RIN> <SUBJECT>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</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule, request for comment. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS has received a request from the U.S. Navy (Navy) for authorization to take 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 ( <E T="03">i.e.,</E> 2025-2029) (the Project). Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. Agency responses will be included in the notice of the final decision. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than August 2, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> 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: <E T="03">https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navys-construction-activities-q8-bulkhead-naval-station.</E> In case of problems accessing these documents, please call the contact listed below (see <E T="02">FOR FURTHER INFORMATION CONTACT</E> ). Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to <E T="03">https://www.regulations.gov</E> and enter NOAA-NMFS-2024-0055 in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments. <E T="03">Instructions:</E> 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 records and will generally be posted for public viewing on <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Craig Cockrell, Office of Protected Resources, NMFS, (301) 427-8401 or <E T="03">craig.cockrell@noaa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Purpose and Need for Regulatory Action</HD> This proposed rule would establish a framework under the authority of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ) to allow for the authorization of take of marine mammals incidental to the Navy's construction activities including pile driving at NAVSTA Norfolk. We received an application from the Navy requesting 5-year regulations and authorization to take multiple species of marine mammals. Take would occur by Level B harassment, incidental to impact and vibratory pile driving. Please see Background below for definitions of harassment. <HD SOURCE="HD1">Legal Authority for the Proposed Action</HD> 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 Proposed 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 proposed rule containing 5-year regulations, and for any subsequent letters of authorization (LOAs). As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements. <HD SOURCE="HD1">Summary of Major Provisions Within the Proposed Rule</HD> Following is a summary of the major provisions of this proposed rule regarding Navy construction activities. These measures include: • Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities; • Shutdown of construction activities under certain circumstances to avoid injury of marine mammals; 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. <HD SOURCE="HD1">Background</HD> 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 <E T="03">et seq.</E> ) 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 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. <HD SOURCE="HD1">National Environmental Policy Act</HD> To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 <E T="03">et seq.</E> ) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action ( <E T="03">i.e.,</E> the issuance of regulations) with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 ( <E T="03">i.e.,</E> incidental harassment authorizations (IHAs) with no anticipated serious injury or mortality) of the Companion Manual for NAO 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed regulations and LOA qualifies to be categorically excluded from further NEPA review. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on final regulations and the final LOA. <HD SOURCE="HD1">Summary of Request</HD> On September 14, 2024, 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 <E T="04">Federal Register</E> on March 14, 2024 (89 FR 18605). No comments were received on the application during the 30-day comment period. 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 proposed regulations would be valid for 5 years (2025-2029). <HD SOURCE="HD1">Description of Proposed Activity</HD> <HD SOURCE="HD2">Overview</HD> The Navy proposes to repair and replace the Q8 bulkhead at NAVSTA Norfolk, originally constructed in 1957, that has failed in multiple locations, creating sinkholes and unsafe conditions. Work on the bulkhead would be conducted from Piers 12 and 14 to restore function of this Navy dock system. Vibratory and impact hammers would 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 in the form of behavioral harassment. The Q8 bulkhead consists of an approximately 2,583 feet (ft) (787.30 meters (m) long anchored concrete sheet pile wall, begi ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 141k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━