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

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 241003-0261]</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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 ( <E T="03">i.e.,</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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective from January 1, 2025, through December 31, 2029. </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. <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 rule establishes a framework under the authority of the Marine Mammal Protection Act (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 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. <HD SOURCE="HD1">Legal Authority for the 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 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. <HD SOURCE="HD1">Summary of Major Provisions Within the Rule</HD> 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. <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">Summary of Request</HD> 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 <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. On July 3, 2024, NMFS published a notice of proposed rulemaking in the <E T="04">Federal Register</E> (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. <HD SOURCE="HD1">Description of the Activity</HD> 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 <E T="04">Federal Register</E> 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 <E T="04">Federal Register</E> notice for the description of the specific activity. <HD SOURCE="HD1">Comments and Responses</HD> NMFS' notice of proposed rulemaking was published in the <E T="04">Federal Register</E> 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: <E T="03">https://www.regulations.gov/document/NOAA-NMFS-2024-0055-0001/comment.</E> <E T="03">Comment 1:</E> 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. <E T="03">Resp ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 127k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━