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Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Rules and Regulations effecting the least practicable adverse impact on the affected species or stocks and their habitat see the discussion below in the Mitigation Measures section, as well as monitoring and reporting requirements. Section 101a5A of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this final rule containing fiveyear regulations, and for any subsequent LOAs. As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements.
Summary of Major Provisions Within the Final 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.

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Background Section 101a5A of the MMPA 16
U.S.C. 1361 et seq. directs 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, regulations are issued, and notice is provided to the public.
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stocks and will not have an unmitigable adverse impact on the availability of the species or stocks 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 as mitigation; and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth.

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The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
Summary of Request In February 2020, NMFS received a request from the Navy for an LOA to take marine mammals incidental to construction activities including marine structure maintenance, pile replacement, and select waterfront improvements at NAVSTA Norfolk.
NMFS reviewed the Navys application, and the Navy provided an updated version addressing NMFS questions and comments on May 22, 2020. The application was deemed adequate and complete and published for public review and comment on June 9, 2020
85 FR 35267. We did not receive substantive comments on the notice of the receipt of the Navys application.
We subsequently published a proposed rule in the Federal Register on December 21, 2020 85 FR 83001.
Comments received during the public comment period on the proposed regulations are addressed in the Comments and Responses section of this final rule.
The Navy plans to conduct construction activities at NAVSTA
Norfolk and nearby facilities off the lower Chesapeake Bay. Among other activities, the planned project will include both vibratory pile driving and removal, and impact pile driving. The use of both vibratory and impact pile driving is expected to produce underwater sound at levels that have the potential to result in harassment of marine mammals. The Navy requested authorization to take a small number of five species of marine mammals by Level B harassment only. Neither the Navy nor NMFS expect serious injury or mortality to result from this activity.
The regulations are valid for five years 20212026.
Description of the Specified Activity The Navy is proposing to conduct construction activities at NAVSTA
Norfolk on the Naval Station, and at nearby facilities off the lower Chesapeake Bay. The Navys planned activities include pile replacement at the Morale, Welfare and Recreation Marina, and installation of two new floating docks at the V-area. Both areas are located on the Naval Station. The Navy also proposes to conduct maintenance/repair activities at the Naval Station and neighboring Defense Fuel Supply Point Craney Island and Lamberts Point Deperming Station see Figure 1 of the proposed rule; 85 FR
83001; December 21, 2020. The Navy has indicated specific projects where
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existing needs have been identified, as well as estimates for expected emergent or emergency repairs. The planned project will include both vibratory pile driving and removal, and impact pile driving hereafter, collectively referred to as pile driving over approximately 574 days over five years 20212026, with the greatest amount of work occurring during Year 1 approximately 208 days. The Navy plans to conduct all work during daylight hours.
A detailed description of the planned construction project is provided in the proposed rule 85 FR 83001; December 21, 2020. Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to the proposed rule for the description of the specific activity.
Comments and Responses We published a proposed rule in the Federal Register on December 21, 2020
85 FR 83001. During the 30-day comment period, we received a letter from the Marine Mammal Commission Commission, and a comment from the general public. Summaries of all substantive comments, and our responses to these comments, are provided here. Please see the comment letter, available online at: https
www.fisheries.noaa.gov/action/
incidental-take-authorization-us-navyconstruction-naval-station-norfolknorfolk-virginia, for full detail regarding the comments received.
Comment 1: The Commission recommended that NMFS re-estimate the numbers of Level B harassment takes of harbor seals based on up to 21
rather than 14 seals potentially being taken on the various days of proposed activities.
Response: In the proposed rule, NMFS calculated takes based on haulout data from the CBBT 14 Level B harassment takes per day. See the Estimated Take section of the proposed rule; 85 FR 83001; December 21, 2020.
The CBBT is approximately 19 km kilometers; 12 miles mi from the project site, and the ES haulout is approximately 48 km 30 mi from the project site. While some seals tagged at ES haulouts entered the Chesapeake Bay Ampela et al. 2019, even if a seal enters the Chesapeake Bay, it does not necessarily enter the project area. The Level B harassment zones are <50 m for all impact pile driving, and given the shoreline, Level B harassment zones during vibratory pile driving would be truncated in many directions.
Additionally, some seals move between the CBBT and ES haulout sites Jones et al. 2018; therefore, including seals from
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