Notice2023-22633
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to BNSF Railway Bridge Heavy Maintenance Project in King County, Washington
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 13, 2023
Effective
September 28, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from BNSF Railway (BNSF) for the reissuance of two consecutive, previously issued incidental harassment authorizations (IHA) with the only change being effective dates. The initial IHAs authorized take of seven species of marine mammals, by Level A and Level B harassment, incidental to construction.
Full Text
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<title>Federal Register, Volume 88 Issue 197 (Friday, October 13, 2023)</title>
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[Federal Register Volume 88, Number 197 (Friday, October 13, 2023)]
[Notices]
[Pages 70932-70934]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-22633]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD372]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to BNSF Railway Bridge Heavy
Maintenance Project in King County, Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental harassment authorization.
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SUMMARY: NMFS has received a request from BNSF Railway (BNSF) for the
reissuance of two consecutive, previously issued incidental harassment
authorizations (IHA) with the only change being effective dates. The
initial IHAs authorized take of seven species of marine mammals, by
Level A and Level B harassment, incidental to construction.
DATES: The authorizations are effective from September 28, 2023 to July
15, 2024 for Year 1 and July 16, 2024 to July 15, 2025 for Year 2.
ADDRESSES: An electronic copy of the final IHAs previously issued to
the BNSF, the initial application, and the Federal Register notices
proposing and issuing the initial IHAs may be obtained by visiting
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-bnsf-railway-railway-bridge-heavy-maintenance-project-king">https://www.fisheries.noaa.gov/action/incidental-take-authorization-bnsf-railway-railway-bridge-heavy-maintenance-project-king</a>. In case of
problems accessing these documents, please call the contact listed
below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
[[Page 70933]]
Background
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act
(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, a notice of a proposed authorization is provided to the
public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
The MMPA states that the term ``take'' means to harass, hunt,
capture, kill or attempt to harass, hunt, capture, or kill any marine
mammal.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as any act of pursuit, torment, or
annoyance, which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Summary of Request
On April 15, 2022, NMFS published final notice of our issuance of
two consecutive IHAs authorizing take of marine mammals incidental to
the Bridge 6.3 Heavy Maintenance Project in King County, Washington (87
FR 22506; April 15, 2022). The effective dates of the IHAs were from
July 16, 2022 to July 15, 2023 for Year 1 and from July 16, 2023 to
July 15, 2024 for Year 2. On August 3, 2023, BNSF informed NMFS that
the project would be delayed by one year and requested a reissuance of
the initial IHAs. None of the work identified in the initial IHAs
(e.g., pile driving and removal) has occurred. Therefore, reissuance of
the two consecutive IHAs is appropriate. The initial IHAs authorized
take of seven species of marine mammals, by Level A and Level B
harassment, incidental to construction (87 FR 22506; April 15, 2022).
The Year 1 Authorization was effective from July 16, 2022 to July 15,
2023. The Year 2 Authorization was effective from July 16, 2023 to July
15, 2024. BNSF has requested a subsequent reissuance of the IHAs. The
reissued Year 1 IHA will be effective from the date September 28, 2023
to July 15, 2024 and the reissued Year 2 IHA will be effective from
July 16, 2024 to July 15, 2025. The scope of the activities and
anticipated effects remain the same, authorized take numbers are not
changed, and the required mitigation, monitoring, and reporting remains
the same as included in the initial IHAs. NMFS is, therefore, reissuing
a two identical IHAs to cover the incidental take analyzed and
authorized in the initial IHAs.
Summary of Specified Activity and Anticipated Impacts
The planned activities (including mitigation, monitoring, and
reporting), authorized incidental take, and anticipated impacts on the
affected stocks are the same as those analyzed and authorized through
the previously issued initial IHAs.
The purpose of BNSF's Railway Bridge 6.3 Heavy Maintenance Project
is to extend the service life of the existing structure by replacing
several components of the existing movable span. The location, timing,
and nature of the activities, including the types of equipment planned
for use, are identical to those described in the initial IHAs. The
mitigation and monitoring are also as prescribed in the initial IHAs.
Species that are expected to be taken by the planned activity
include minke whale (Balaenoptera acutorostrata), common bottlenose
dolphin (Tursiops truncatus), long-beaked common dolphin (Delphinus
capensis), harbor porpoise (Phocoena phocoena), California sea lion
(Zalophus californianus), Steller sea lion (Eumetopias jubatus) and
harbor seal (Phoca vitulina). A description of the methods and inputs
used to estimate take anticipated to occur and, ultimately, the take
that was authorized is found in the documents referenced below. The
data inputs and methods of estimating take are identical to those used
in the initial IHAs. NMFS has reviewed recent Stock Assessment Reports,
information on relevant Unusual Mortality Events, and recent scientific
literature, and determined that no new information affects our original
analysis of impacts or take estimate under the initial IHAs.
We refer to the documents related to the previously issued IHAs,
which include the Federal Register notice of the issuance of the
initial IHAs (87 FR 22506; April 15, 2022) for BNSF's construction work
(87 FR 22506; April 15, 2022), BNSF's application, the Federal Register
notice of the proposed IHAs (87 FR4844; January 31, 2022), and all
associated references and documents.
Determinations
BNSF will conduct activities as analyzed in the initial IHAs. As
described above, the number of authorized takes of the same species and
stocks of marine mammals are identical to the numbers that were found
to meet the negligible impact and small numbers standards and
authorized under the initial IHA and no new information has emerged
that would change those findings. The two consecutive, reissued IHAs
include identical required mitigation, monitoring, and reporting
measures as the initial IHAs, and there is no new information
suggesting that our analysis or findings should change.
Based on the information 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; and (4) BNSF'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.
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 with respect to environmental
consequences on the human environment.
Accordingly, NMFS has determined that the reissuance of the IHAs
qualifies to be categorically excluded from further NEPA review. This
action is consistent with categories of activities
[[Page 70934]]
identified in CE B4 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. Because
the only change to the IHAs are the effective dates, the CE on record
for issuance of the initial IHAs applies to this action.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally, in this case with the Alaska Regional Office,
whenever we propose to authorize take for endangered or threatened
species.
However, 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.
Authorization
NMFS has issued two consecutive IHAs to BNSF for in-water
construction activities associated with the specified activity from the
date of issuance to July 15, 2024 for Year 1 and from July 16, 2024 to
July 15, 2025 for year 2. All previously described mitigation,
monitoring, and reporting requirements from the initial IHAs are
incorporated.
Dated: October 2, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-22633 Filed 10-12-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on October 13, 2023.
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