[Federal Register Volume 88, Number 128 (Thursday, July 6, 2023)]
[Notices]
[Pages 43079-43082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14237]


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 Notices
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 This section of the FEDERAL REGISTER contains documents other than rules 
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  Federal Register / Vol. 88, No. 128 / Thursday, July 6, 2023 / 
Notices  

[[Page 43079]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD109]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Falls Bridge Replacement 
Project in Blue Hill, Maine

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of renewal incidental harassment 
authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued a renewal incidental harassment authorization 
(IHA) to Maine Department of Transportation (MEDOT) to incidentally 
harass marine mammals incidental to Falls Bridge Replacement Project in 
Blue Hill, Maine.

DATES: This renewal IHA is valid from July 1, 2023 through June 30, 
2024.

ADDRESSES: Electronic copies of the original application, Renewal 
request, and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed below.

FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. 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 issued or, if the taking is limited to harassment, an incidental 
harassment authorization is issued.
    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 such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time 1-year renewal IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activity section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activity and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

    On December 8, 2021, NMFS issued an IHA to MEDOT to take marine

[[Page 43080]]

mammals incidental to the Falls Bridge Replacement Project in Blue 
Hill, Maine (86 FR 71034, December 14, 2021), effective from July 1, 
2022 through June 30, 2023. On March 3, 2023, NMFS received an 
application for the renewal of that initial IHA. As described in the 
application for renewal, the activities for which incidental take is 
requested consist of activities that are covered by the initial 
authorization but will not be completed prior to its expiration. As 
required, the applicant also provided a preliminary monitoring report 
(available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-maine-department-transportation-falls-bridge-project-blue-hill) which confirms that the applicant has implemented the 
required mitigation and monitoring, and which also shows that no 
impacts of a scale or nature not previously analyzed or authorized have 
occurred as a result of the activities conducted. The notice of the 
proposed renewal incidental harassment authorization was published on 
June 9, 2023 (88 FR 37864).

Description of the Specified Activities and Anticipated Impacts

    The MEDOT construction project consists of creating a temporary 
bridge for vehicle traffic during work on the Falls Bridge, which was 
expected to require the installation (and then removal when the project 
is complete) of 15 24-inch steel pipe piles. Work on the main bridge 
deck was not expected to incidentally harass marine mammals, however in 
order to facilitate that work, MEDOT planned to place one or two large 
trestles (up to 100 foot by 125 foot (30.5 by 38 meters) long) in the 
water next to the bridge. These trestles were expected to require the 
installation of up to 60 24-inch diameter steel pipe piles. In addition 
to the temporary work trestles and temporary bridge, MEDOT anticipated 
the need for four temporary support towers during the demolition and 
removal of the existing bridge superstructure. The temporary support 
towers were to be placed at the corners of the tied arch, approximately 
20 feet (6.1 meters) in from the existing bridge abutments. The 
temporary support towers were expected to require up to 5 24-inch steel 
pipe piles to support each of the towers, for a total of 20 24-inch 
steel pipe piles.
    In total the initial project plans included the installation and 
removal of 95 24-inch diameter steel pipe piles. It was expected that 
all 95 piles would be installed in rock sockets (holes) in the bedrock 
created by down-the-hole (DTH) equipment. Impact pile driving would be 
used to seat the piles and potentially drive them through softer 
substrates. For piles driven in the center of the channel under the 
bridge (mostly for the trestles), additional lateral stability may 
require the use of rebar tension anchors drilled deeper into the 
substrate in the center of the piles and connected to the piles once 
installed. This would be accomplished by using an 8-inch diameter DTH 
bit. It was expected that no more than 65 of the 95 piles would require 
these tension anchors. Once the work on the bridge was complete, all 95 
piles would be removed using a vibratory hammer. The DTH and impact 
hammer installation and vibratory extraction of the piles was expected 
to take up to 80 days of in-water work.
    MEDOT subsequently updated its construction plans by reducing the 
number of driven piles from the previously estimated 95 piles down to a 
total of 12 piles. Pile size was also reduced from 24-inch steel pipe 
piles to 14-inch steel pipe piles. MEDOT completed all pile driving 
with the use of an impact hammer, and the DTH method was not used by 
MEDOT. All project related pile installation activities conducted under 
the initial IHA, which were limited to installation of 12 14-inch steel 
piles, were completed over a 2-day period in October and November 2022.
    This renewal request is to cover the subset of the activities 
covered in the initial IHA that will not be completed during the 
effective IHA period. MEDOT plans to remove all 12 14-inch steel pipe 
piles through vibratory means between October and December of 2023. 
MEDOT estimates it will take 30 minutes to remove a single pile, with 
up to six piles removed per day.
    The likely or possible impacts of MEDOT's planned activity on 
marine mammals could involve both non-acoustic and acoustic stressors 
and are unchanged from the impacts described in the initial IHA. 
Potential non-acoustic stressors could result from the physical 
presence of the equipment, vessels, and personnel; however, any impacts 
to marine mammals are expected to primarily be acoustic in nature. 
Acoustic stressors include effects of heavy equipment operation during 
pile installation and removal. The effects of underwater and in-air 
noise and visual disturbance from the MEDOT's planned activities have 
the potential to result in Level B harassment of marine mammals in the 
action area.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is authorized here may be found in the notices of the proposed and 
final IHAs for the initial authorization (86 FR 61164, November 5, 
2021; 86 FR 71034, December 14, 2021). As previously mentioned, this 
request is for a subset of the activities authorized in the initial IHA 
that would not be completed prior to its expiration. The location, 
timing, and nature of the activities, including the types of equipment 
planned for use, are identical to those described in the previous 
notice for the initial IHA. Changes to the initial scope include the 
reduction of pile size and number of piles required. The initial scope 
planned for the installation and removal of 95 24-inch steel pipe 
piles. In total, 12 14-inch piles were installed. MEDOT is requesting a 
renewal IHA for vibratory removal of 12 14-inch steel pipe piles. The 
renewal IHA would be effective from July 1, 2023 through June 30, 2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized here, including information on abundance, 
status, distribution, and hearing, may be found in the notice of the 
proposed IHA for the initial authorization (86 FR 61164, November 5, 
2021). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects which species or 
stocks have the potential to be affected or the pertinent information 
in the Description of the Marine Mammals in the Area of Specified 
Activities contained in the supporting documents for the initial IHA 
(86 FR 61164, November 5, 2021).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
authorized here may be found in the notice of the proposed IHA for the 
initial authorization (86 FR 61164, November 5, 2021). NMFS has 
reviewed the monitoring data from the initial IHA, recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and other scientific literature, and determined that neither this nor 
any other new information affects our initial analysis of impacts on 
marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the

[[Page 43081]]

specified activity are found in the notices of the proposed and final 
IHAs for the initial authorization (86 FR 61164, November 5, 2021; 86 
FR 71034, December 14, 2021). Specifically, days of operation, area or 
space within which harassment is likely to occur, and marine mammal 
occurrence data applicable to this authorization remain unchanged from 
the initial IHA. Similarly, the stocks taken, methods of take, daily 
take estimates and types of take remain unchanged from the initial IHA. 
The number of takes authorized in this renewal are a subset of the 
initial authorized takes that better represent the amount of activity 
left to complete. These takes, which reflect the lower number of 
remaining days of work, are indicated below in Table 1.

       Table 1--Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                 Species                              Stock                  Take           Percent of stock
----------------------------------------------------------------------------------------------------------------
Harbor porpoise..........................  Gulf Maine/Bay of Fundy....              20  <0.1
Atlantic white-sided dolphin.............  Western North Atlantic.....              20  <0.1
Common dolphin...........................  Western North Atlantic.....              80  0.1
Harbor seal..............................  Western North Atlantic.....             198  0.3
Gray seal................................  Western North Atlantic.....               8  <0.1
Harp seal................................  Western North Atlantic.....               1  <0.1
Hooded seal..............................  Western North Atlantic.....               1  UNK
----------------------------------------------------------------------------------------------------------------

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are almost identical to those 
included in the Federal Register (FR) notice announcing the issuance of 
the initial IHA, and the discussion of the least practicable adverse 
impact included in that document remains accurate (86 FR 71034, 
December 14, 2021). In the renewal IHA, the pile size and the amount of 
piles removed per day has been updated to reflect what occurred under 
the initial IHA. MEDOT's original shutdown zones were based on removal 
of three 24-inch steel piles per day. However, due to the reduced pile 
size used in the initial IHA, MEDOT plans to remove six 14-in steel 
piles per day, resulting in larger estimated Level A harassment 
isopleths. The estimated Level A harassment isopleth for high frequency 
cetaceans increases from 25 meters to 62 meters. However, the shutdown 
zone for phocids remains the same. As a result, MEDOT proposed to 
increase the shutdown zone for cetaceans from 50 meters to 100 meters. 
This update is reflected in Table 2 below and in the IHA renewal.
    The following mitigation, monitoring, and reporting measures are 
planned for this renewal:
     The MEDOT must avoid direct physical interaction with 
marine mammals during construction activity. If a marine mammal comes 
within 10 meters of such activity, operations must cease and vessels 
must reduce speed to the minimum level required to maintain steerage 
and safe working conditions, as necessary to avoid direct physical 
interaction.
     Conduct training between construction supervisors and 
crews and the marine mammal monitoring team and relevant MEDOT staff 
prior to the start of all pile driving activity and when new personnel 
join the work, so that responsibilities, communication procedures, 
monitoring protocols, and operational procedures are clearly 
understood.
     Pile driving activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within the 
harassment zone.
     MEDOT will establish and implement the shutdown zones. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of the activity would occur upon sighting of a marine mammal 
(or in anticipation of an animal entering the defined area). Shutdown 
zones typically vary based on the activity type and marine mammal 
hearing group. To simplify implementation of shutdown zones, MEDOT has 
planned to implement shutdown zones for two groups of marine mammals, 
cetaceans and pinnipeds, with the shutdown zone in each group being the 
largest of the shutdown zones for any of the hearing groups contained 
within that group. MEDOT has also voluntarily proposed to increase 
shutdown sizes above those we would typically require in order to be 
precautionary and protective to marine mammals. Due to the modification 
of pile size and duration as discussed above, the updated shutdown 
zones for the IHA renewal are in Table 2.

                Table 2--Minimum Required Shutdown Zones
------------------------------------------------------------------------
                                                  Shutdown distance (m)
                   Activity                    -------------------------
                                                 Cetaceans    Pinnipeds
------------------------------------------------------------------------
Vibratory Removal.............................         100           50
------------------------------------------------------------------------

     Monitoring must take place from 30 minutes prior to 
initiation of construction activity (i.e., pre-start clearance 
monitoring) through 30 minutes post-completion of construction 
activity.
     Pre-start clearance monitoring must be conducted during 
periods of visibility sufficient for the lead Protected Species 
Observer (PSO) to determine the shutdown zones clear of marine mammals. 
Construction may commence when the determination is made.
     If construction is delayed or halted due to the presence 
of a marine mammal, the activity may not commence or resume until 
either the animal has voluntarily exited and been visually confirmed 
beyond the shutdown zone or 15 minutes have passed without re-detection 
of the animal.
     MEDOT must use soft start techniques. Soft start requires 
contractors and equipment to slowly approach the work site creating a 
visual disturbance allowing animals in close proximity to construction 
activities a chance to leave the area prior to stone resetting or new 
stone placement. Contractors shall avoid walking or driving equipment 
through the seal haulout. A soft start must be implemented at the start 
of each day's construction activity and at any time following cessation 
of activity for a period of 30 minutes or longer.

[[Page 43082]]

     The MEDOT must employ at least one PSO to monitor the 
shutdown and Level B harassment zones.
     Monitoring will be conducted 30 minutes before, during, 
and 30 minutes after construction activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from construction activity.
     The MEDOT must submit a draft report detailing all 
monitoring within 90 calendar days of the completion of marine mammal 
monitoring or 60 days prior to the issuance of any subsequent IHA for 
this project, whichever comes first.
     The MEDOT must prepare and submit final report within 30 
days following resolution of comments on the draft report from NMFS.
     The MEDOT must submit all PSO datasheets and/or raw 
sighting data (in a separate file from the Final Report referenced 
immediately above).
     The MEDOT must report injured or dead marine mammals.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to MEDOT was 
published in the Federal Register June 9, 2023 (88 FR 37864). That 
notice either described, or referenced descriptions of, the MEDOT's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated amount and manner of take, and mitigation, monitoring and 
reporting measures. NMFS received no public comments.

Determinations

    The renewal request consists of a subset of activities analyzed 
through the initial authorization described above. In analyzing the 
effects of the activities for the initial IHA, NMFS determined that the 
MEDOT's activities would have a negligible impact on the affected 
species or stocks and that authorized take numbers of each species or 
stock were small relative to the relevant stocks (e.g., less than one-
third the abundance of all stocks). The mitigation measures and 
monitoring and reporting requirements as described above are identical 
to the initial IHA.
    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. Based on the information and analysis contained here and 
in the referenced documents, NMFS has determined the following: (1) the 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the authorized takes represent small 
numbers of marine mammals relative to the affected stock abundances; 
(4) MEDOT's activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no relevant subsistence uses of 
marine mammals are implicated by this action, and; (5) appropriate 
monitoring and reporting requirements are included.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA 
renewal) with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 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 determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has determined that the application of this categorical 
exclusion remains appropriate for this renewal IHA.

Endangered Species Act

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Renewal

    NMFS has issued a renewal IHA to MEDOT for the take of marine 
mammals incidental to conducting Falls Bridge Replacement Project in 
Blue Hill, Maine, from July 1, 2023 through June 30, 2024.

    Dated: June 29, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-14237 Filed 7-5-23; 8:45 am]
BILLING CODE 3510-22-P