Document headings vary by document type but may contain the following:
See the Document Drafting Handbook for more details.
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-navys-construction-activities-q8-bulkhead-naval-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 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 non-negligible 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 depth-averaged 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 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-technical-guidance ), 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/marine-mammal-stock-assessments.
Table 1—Species Likely Impacted by the Specified Activities
| Common name | Scientific name | Stock | ESA/MMPA status; strategic (Y/N) | Stock abundance (CV, N min , most recent abundance survey) | PBR | Annual M/SI |
|---|---|---|---|---|---|---|
| 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 |
| 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/ ). | ||||||
| ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. | ||||||
| NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports/ . CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. | ||||||
| These 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. |
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. |
| 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). |
Table 3—Thresholds Identifying the Onset of Auditory Injury
[NMFS 2018]
Table 4—Updated Thresholds Identifying the Onset of Auditory Injury (AUD INJ)
[NMFS 2024]
Table 5—Proxy Sound Source Levels for Pile Sizes and Driving Methods
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
Table 9—Calculated Level A and Level B Harassment Isopleths for Concurrent Activities
Table 10—Takes by Level B Harassment by Species and Stock in Comparison to Stock Abundance
Table 11—Shutdown and Monitoring Zones for Individual Activities
Table 12—Shutdown and Monitoring Zones for Concurrent Activities
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 |