[Federal Register Volume 88, Number 197 (Friday, October 13, 2023)]
[Notices]
[Pages 70932-70934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-bnsf-railway-railway-bridge-heavy-maintenance-project-king. 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]
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