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Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations
both haulouts could result in double counting of the same animals. Further, the nearby HRBT project began pile installation in September, and no seals have been sighted during five months of construction under the projects Marine Mammal Monitoring and Mitigation Program. Therefore, the best available information indicates that the take estimate included in the proposed rule is already conservative, and it is not appropriate to increase the take estimate as suggested by the Commission.
Therefore, NMFS does not concur with the Commissions recommendation and does not adopt it.
Comment 2: The Commission recommended that NMFS require the Navy to 1 conduct sound source and sound propagation measurements of vibratory and impact installation of at least 10 high-density polyethylene HDPE, 10 hollow-core fiberglass, and 3
concrete piles using near-field and farfield hydrophones placed mid-water column and 2 include certain specific elements in its hydroacoustic monitoring report.
The Commission also recommended that NMFS require the Navy to increase the sizes of the shut-down zones and Level B harassment zones if the measured data indicate that the modelestimated zones were underestimated.
Response: Since publication of the proposed rule, the Navy has determined that sound source verification SSV
may not be feasible given budget constraints associated with the individual, small-scale projects planned. Therefore, NMFS did not adopt the Commissions recommendation to require sound source and sound propagation measurements for the number of piles it indicated, and NMFS has removed the SSV requirement from this final rule.
However, subject to funding availability, the Navy may conduct a SSV study for pile types other than timber piles prioritizing composite pile types. As noted in the proposed rule, composite piles may be either HDPE or hollowcore fiberglass; the Navy will not necessarily install both types.
If funding is available for a SSV study, the Navy will develop an acoustic monitoring plan. The acoustic monitoring plan would follow accepted methodologies regarding source level measurements and propagation measurements. NMFS generally agrees with the elements that the Commission has suggested that the Navy report, though the exact reporting requirements would be outlined in an acoustic monitoring plan, which would be available at a later date, and would be
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reviewed and approved by NMFS prior to implementation.
If the Navy conducts hydroacoustic monitoring, and the results suggest that the Level A or Level B harassment zones were underestimated in this final rule, NMFS will work with the Navy to update the Level A and Level B
harassment zone sizes and the associated shutdown zones, as appropriate.
Comment 3: The Commission recommends generally that NMFS
require the use of shutdown zones that encompass the extent of the associated Level A harassment zone. Specifically, the Commission recommends that NMFS require the Navy to implement a shutdown zone of 55 m rather than 50
m for low-frequency LF cetaceans during impact installation of 24-inch in concrete piles.
Response: NMFS does not agree with the Commissions rationale for this recommendation. Generally speaking, given the duration component associated with actual occurrence of Level A harassment take, it is not necessary to require a shutdown zone equivalent to the estimated Level A
harassment zone to avoid permanent threshold shift PTS, i.e., Level A
harassment take. Regardless, in this case, the proposed 50 m shutdown zone is essentially equivalent to the estimated 52 m Level A harassment zone.
Nevertheless, the Navy has agreed to implement the 55 m shutdown zone recommended by the Commission.
Comment 4: The Commission recommended that NMFS require the Navy to use at least three PSOs to monitor for marine mammals during vibratory pile installation and removal at Pier 3, Pier 12, and Craney Island and four PSOs for Lamberts Point positioned sufficiently in the far field to monitor the largest extents of the respective Level B harassment zones.
Response: NMFS concurs with the Commissions recommendation and has adopted it. This final rule requires the Navy to employ at least three PSOs during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs during vibratory pile driving at Lamberts Point, though the exact locations are not stipulated. For all other pile driving activities, a minimum of two PSOs will be used, as stated in the proposed rule 85 FR 83001;
December 21, 2020.
Comment 5: The Commission recommended that NMFS make available to the public for review and comment all monitoring plans, hydroacoustic and marine mammalrelated, contemporaneously with any proposed rule or proposed incidental
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harassment authorization that NMFS
publishes in the Federal Register.
Response: NMFS agrees that it is important to ensure adequate review of monitoring plans, including hydroacoustic and marine mammalrelated monitoring plans, before they are implemented by applicants. NMFS will review the Navys proposed marine mammal monitoring plan prior to the start of construction, and therefore prior to the implementation of the plan. If funding is available for a SSV study, the Navy will develop an acoustic monitoring plan, and NMFS will review and approve the plan prior to its implementation. It is important to provide the objectives of proposed monitoring for review by the public.
However, as is the case here, methodological details follow widely accepted practices and, therefore, it is unnecessary to provide these plans for public review. To do so would necessitate development of standalone plans at an earlier stage than is ideal or, in some cases, possible.
While the Navy initially expected to submit a standalone marine mammal monitoring and mitigation plan in association with the application, it has since indicated that it is unable to do so given restrictions on funding allocation between NEPA and associated analyses/
consultations such as this MMPA
authorization and separate construction project funding. The construction project funding must be used for further development of site/project-specific monitoring plans at a later stage of project development. All monitoring requirements in the Navys LOA
application, this final rule, and any subsequent LOAs will be incorporated into the construction contractors monitoring plan.
Comment 6: The Commission recommended that NMFS include the requirement, which it deems standard, that the Navy conduct pile driving and removal activities during daylight hours only either in section 218.5 of the final rule or in any LOA issued under the final rule.
Response: We do not concur with the Commissions recommendations, or with their underlying justification, and did not adopt them. While the Navy has no intention of conducting pile driving activities at night, it is unnecessary to preclude such activity should the need arise e.g., on an emergency basis or to complete driving of a pile begun during daylight hours, should the construction operator deem it necessary to do so.
Further, while acknowledging that prescribed mitigation measures for any specific action and an associated determination that the prescribed
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