Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Falls Bridge Replacement Project in Blue Hill, Maine, 71034-71043 [2021-27038]

Download as PDF 71034 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF COMMERCE Katie Denman, Office of National Marine Sanctuaries, 1305 East West Highway, Silver Spring, Maryland 20910 (Phone: 240–533–0702; Email: katie.denman@noaa.gov). National Oceanic and Atmospheric Administration [RTID 0648- XB631] ONMS serves as the trustee for a network of underwater parks encompassing more than 620,000 square miles of marine and Great Lakes waters from Washington State to the Florida Keys, and from Lake Huron to American Samoa. The network includes a system of 15 national marine sanctuaries and Papaha¯naumokua¯kea and Rose Atoll marine national monuments. National marine sanctuaries protect our Nation’s most vital coastal and marine natural and cultural resources, and through active research, management, and public engagement, sustain healthy environments that are the foundation for thriving communities and stable economies. One of the many ways ONMS ensures public participation in the designation and management of national marine sanctuaries is through the formation of advisory councils. The Sanctuary System Business Advisory Council (council) has been formed to provide advice and recommendations to the Director regarding the relationship of ONMS with the business community. Additional information on the council can be found at https://sanctuaries.noaa.gov/ management/bac/. Matters to be discussed: The meeting will include updates from ONMS, a presentation from a sanctuary site, updates from all working groups, and an officer election. For a complete agenda, including times and topics, please visit https://sanctuaries.noaa.gov/ management/bac/meetings.html. Authority: 16 U.S.C. Sections 1431, et seq. SUPPLEMENTARY INFORMATION: John Armor, Director, Office of National Marine Sanctuaries, National Ocean Service, National Oceanic and Atmospheric Administration. [FR Doc. 2021–27010 Filed 12–13–21; 8:45 am] jspears on DSK121TN23PROD with NOTICES1 BILLING CODE 3510–NK–P VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Falls Bridge Replacement Project in Blue Hill, Maine National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of an incidental harassment authorization. AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the Maine Department of Transportation (MEDOT) to incidentally harass, by Level A and B harassment only, marine mammals during construction activities associated with the Falls Bridge Replacement Project in Blue Hill, Maine. DATES: This authorization is effective from July 1, 2022 through June 30, 2023. FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of Protected Resources, NMFS, (301) 427– 8401. Electronic copies of the application and supporting documents, 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-undermarine-mammal-protection-act. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: SUMMARY: 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, a notice of a proposed incidental take authorization may be provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 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 the species or stocks for taking for certain subsistence uses (referred to in shorthand as ‘‘mitigation’’); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below. Summary of Request On October 7, 2021, NMFS received an application from MEDOT requesting an IHA to take small numbers of seven species (harbor seal (Phoca vitulina), gray seal (Halichoerus grypus), harp seal (Pagophilus groenlandicus), hooded seal (Cystophora cristata), harbor porpoise (Phocoena phocoena), Atlantic whitesided dolphin (Lagenorhynchus acutus) and common dolphin (Delphinus delphis)) of marine mammals incidental to pile driving and removal associated with the project. The application was deemed adequate and complete on October 20, 2021. MEDOT’s request is for take of a small number of these species by Level B harassment and a small amount of Level A harassment take for harbor seals. Neither MEDOT nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. Description of the Specified Activity The purpose of the project is to address the structural deficiency of the Falls Bridge and improve public safety. In-water pile driving is needed to create temporary work trestles and support towers and a temporary bridge for vehicle traffic during construction. The work in this application involves the installation of up to 95 24-inch diameter steel piles and then the removal of all piles at the conclusion of the project. The project will take no more than 80 days of in-water pile work. A detailed description of the planned project is provided in the Federal Register notice for the proposed IHA (86 FR 61164; November, 5, 2021). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please E:\FR\FM\14DEN1.SGM 14DEN1 71035 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices refer to that Federal Register notice for the description of the specific activity. Comments and Responses A notice of NMFS’s proposal to issue an IHA to MEDOT was published in the Federal Register on November 5, 2021 (86 FR 61164). That notice described, in detail, MEDOT’s activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received no public comments. Changes From the Proposed IHA to Final IHA There have been no changes from the proposed to the final IHA. Description of Marine Mammals in the Area of Specified Activities Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS’s Stock Assessment Reports (SARs; https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-stock-assessments) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS’s website (https:// www.fisheries.noaa.gov/find-species). Table 1 lists all species with expected potential for occurrence in the project area and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2021). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS’s SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats. Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS’s stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS’s 2021 U.S. Atlantic Draft SARs (e.g., Hayes et al., 2021). TABLE 1—SPECIES THAT SPATIALLY CO-OCCUR WITH THE ACTIVITY TO THE DEGREE THAT TAKE IS REASONABLY LIKELY TO OCCUR Common name Scientific name ESA/ MMPA status; strategic (Y/N) 1 Stock Stock abundance (CV, Nmin, most recent abundance survey) 2 PBR Annual M/SI 3 Order Cetartiodactyla—Cetacea Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Atlantic white-sided dolphin Lagenorhynchus acutus ............ Western North Atlantic .............. -, -; N Common dolphin ................ Delphinus delphis ..................... Western North Atlantic .............. -, -; N Family Phocoenidae (porpoises): Harbor porpoise .................. Phocoena phocoena ................. Gulf of Maine/Bay of Fundy ...... -, -; N 93,233 (0.71, 54,443, See SAR). 172,8974 (0.21, 145,216, 2016). 95,543 (0.31; 74,034; 2016). 544 26 1452 399 851 217 1,729 339 1,389 4,453 426,000 178,573 UNK 1,680 jspears on DSK121TN23PROD with NOTICES1 Order Carnivora—Superfamily Pinnipedia Family Phocidae (earless seals): Harbor seal ......................... Phoca vitulina ........................... Western North Atlantic .............. -; N Gray seal 4 .......................... Halichoerus grypus ................... Western North Atlantic .............. -; N Harp seal ............................ Pagophilus groenlandicus ......... Western North Atlantic .............. -; N Hooded seal ....................... Cystophora cristata ................... Western North Atlantic .............. -; N 61,336 (0.08; 57,637, 2018). 27,300 (0.22, 22,785, 2018). 7,600,000 (UNK, 7,100,000, 2019). UNK (UNK, UNK, See SAR). 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. 3 These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 4 The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 505,000. The PBR value is estimated for the U.S. population, while the M/SI estimate is provided for the entire gray seal stock (including animals in Canada). Harbor seal, gray seal, harbor porpoise, Atlantic white-sided dolphin and common dolphin spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 have proposed authorizing take of these species. Harp seal and hooded seal are rare in the project area but could occur and we have proposed authorizing take of these species. All species that could PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 potentially occur in the proposed survey areas are included in the MEDOT’s IHA application (see application, Section 3). Humpback whale, North Atlantic right whale, minke whale, sei whale and fin E:\FR\FM\14DEN1.SGM 14DEN1 71036 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices whale could potentially occur in the area. However the spatial and temporal occurrence of these species is very rare, typically further offshore, the species are readily observed, and the applicant would shut down pile driving if they enter the project area (see Monitoring and Reporting section). Thus take is not expected to occur, and they are not discussed further. A detailed description of the of the species likely to be affected by the project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (86 FR 61164; November 5, 2021); since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please also refer to NMFS’ website (https:// www.fisheries.noaa.gov/find-species) for generalized species accounts. jspears on DSK121TN23PROD with NOTICES1 Potential Effects of Specified Activities on Marine Mammals and Their Habitat The effects of underwater noise from MEDOT’s construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the survey area. The notice of proposed IHA (86 FR 61164; November 5, 2021) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from MEDOT’s construction on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to the notice of proposed IHA (86 FR 61164; November 5, 2021). Estimated Take This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS’ consideration of ‘‘small numbers’’ and the negligible impact determination. Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines ‘‘harassment’’ as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 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). Authorized takes would primarily be by Level B harassment, as use of the acoustic sources has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for Level A harassment to result, primarily for phocids because predicted auditory injury zones are larger than for other groups and harbor seals are common. Auditory injury is unlikely to occur for other species/groups. The mitigation and monitoring measures are expected to minimize the severity of the taking to the extent practicable. As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated. Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (e.g., previous monitoring results or average group size). Due to the lack of marine mammal density data available for this location, NMFS relied on local occurrence data and group size to estimate take for some species. Below, we describe the factors considered here in more detail and present the proposed take estimate. Acoustic Thresholds NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Level B Harassment for non-explosive sources—Though significantly driven by PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 decibels (dB) re 1 microPascal (mPa) (root mean square (rms)) for continuous (e.g., vibratory pile-driving) and above 160 dB re 1 mPa (rms) for non-explosive impulsive (e.g., impact pile driving) or intermittent (e.g., scientific sonar) sources. MEDOT’s proposed activity includes the use of continuous (vibratory hammer and Down-the-Hole (DTH) systems) and impulsive (impact piledriving) sources, and therefore the 120 and 160 dB re 1 mPa (rms) thresholds are applicable. Level A harassment for non-explosive sources—NMFS’ Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or nonimpulsive). MEDOT’s activity includes the use of impulsive (impact piledriving and DTH) and non-impulsive (vibratory hammer and DTH) sources. These thresholds are provided in Table 2. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-acoustic-technical-guidance. E:\FR\FM\14DEN1.SGM 14DEN1 71037 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices TABLE 2—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT PTS onset acoustic thresholds * (received level) Hearing group Impulsive Low-Frequency (LF) Cetaceans ...................................... Mid-Frequency (MF) Cetaceans ...................................... High-Frequency (HF) Cetaceans ..................................... Phocid Pinnipeds (PW) (Underwater) ............................. Otariid Pinnipeds (OW) (Underwater) ............................. Cell Cell Cell Cell Cell 1: 3: 5: 7: 9: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: Lpk,flat: 219 230 202 218 232 dB; dB; dB; dB; dB; Non-impulsive LE,LF,24h: 183 dB ......................... LE,MF,24h: 185 dB ........................ LE,HF,24h: 155 dB ........................ LE,PW,24h: 185 dB ....................... LE,OW,24h: 203 dB ....................... Cell Cell Cell Cell Cell 2: LE,LF,24h: 199 dB. 4: LE,MF,24h: 198 dB. 6: LE,HF,24h: 173 dB. 8: LE,PW,24h: 201 dB. 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient. The sound field in the project area is the existing background noise plus additional construction noise from the proposed project. Marine mammals are expected to be affected via sound generated by the primary components of the project (i.e., impact and vibratory pile driving, and DTH). In order to calculate distances to the Level A harassment and Level B harassment sound thresholds for the methods and piles being used in this project, NMFS used acoustic monitoring data from other locations to develop source levels for the various pile types, sizes and methods (Table 3). TABLE 3—PROJECT SOUND SOURCE LEVELS Estimated noise levels (dB) Method DTH—24-inch impulsive (Level A) ..................................... DTH—8-inch impulsive (Level A) ....................................... DTH—non-impulsive (Level B) All sizes ............................ Impact—24-inch .................................................................. Vibratory—24-inch .............................................................. 154 144 166 203 165 Source SELss .......................................................................... SELss .......................................................................... dB RMS ...................................................................... Pk, 177 SEL ................................................................ RMS ............................................................................ Denes et al. (2016). Reyff (2020). Denes et al. (2016). Caltrans (2015). Caltrans (2015). Note: SEL = single strike sound exposure level; RMS = root mean square. Level B Harassment Zones Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is: TL = B * Log10 (R1/R2), where: TL = transmission loss in dB B = transmission loss coefficient; for practical spreading equals 15 R1 = the distance of the modeled SPL from the driven pile, and R2 = the distance from the driven pile of the initial measurement The recommended TL coefficient for most nearshore environments is the practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for MEDOT’s proposed activity in the absence of specific modelling. MEDOT determined underwater noise would fall below the behavioral effects threshold of 160 dB RMS for impact driving at 1,585 m and the 120 dB rms threshold for vibratory driving at 10,000 m and all diameters of holes created by DTH at 11,660 m (Table 4). It should be noted that based on the bathymetry and geography of the project area, sound will not reach the full distance of the harassment isopleths in all directions (see Application Figures 6–3 and 6–4). jspears on DSK121TN23PROD with NOTICES1 TABLE 4—LEVEL A AND LEVEL B ISOPLETHS (METERS) FOR EACH METHOD Piles per day Method DTH—24-inch .......................................................................................... 1 2 3 1 2 DTH—8-inch ............................................................................................ VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 PO 00000 Frm 00036 Fmt 4703 MF Sfmt 4703 HF 6 10 13 2 2 E:\FR\FM\14DEN1.SGM Phocid 199 315 413 43 68 14DEN1 89 142 186 20 31 Level B 11,660 71038 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices TABLE 4—LEVEL A AND LEVEL B ISOPLETHS (METERS) FOR EACH METHOD—Continued Piles per day Method MF HF Phocid Level B 3 3 89 40 Impact—24-inch ....................................................................................... 1 2 3 1 2 3 35 56 73 16 25 33 1,585 Vibratory—24-inch ................................................................................... 3 2 25 11 10,000 Level A Harassment Zones When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of take by Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as pile driving or removal and DTH using any of the methods discussed above, NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. We used the User Spreadsheet to determine the Level A harassment isopleths. Inputs used in the User Spreadsheet or models are reported in Table 5 and the resulting isopleths are reported in Table 4 for each of the construction methods and scenarios. TABLE 5—USER SPREADSHEET INPUTS Method Piles per day DTH—24-inch .................................................................................................................................................... DTH—8-inch ...................................................................................................................................................... Impact—24-inch ................................................................................................................................................. Vibratory—24-inch ............................................................................................................................................. jspears on DSK121TN23PROD with NOTICES1 Marine Mammal Occurrence and Take Calculation and Estimation In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Here we describe how the information provided above is brought together to produce a quantitative take estimate. The main information used to inform take calculations is the Shaw Institute (2018) monitoring study commissioned for this project. Density of animals from that study was calculated for either side of the bridge and was applied to the size of the Level B harassment zones (see Application Section 6.3 for full details). A summary of proposed take is in Table 6. Atlantic White-Sided Dolphin Density data for this species in the project vicinity do not exist as no Atlantic white-sided dolphin were seen in the Shaw Institute (2018) study. Atlantic white-sided dolphins do not generally occur in the shallow, inland bays and estuaries of Maine. However, some could occur in rare circumstances. VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 To be precautionary, we authorize take for two groups of 20 animals over the course of the project. Therefore, we authorize 40 Level B harassment takes of Atlantic white-sided dolphins. No takes by Level A harassment are expected or authorized because we expect MEDOT will effectively shutdown for Atlantic white-sided dolphins at the full extent of the very small Level A harassment zones. Common Dolphin Density data for this species in the project vicinity do not exist as no common dolphin were seen in the Shaw Institute (2018) study. Common dolphins do not generally occur in the shallow, inland bays and estuaries of Maine. However, some could occur in rare circumstances. As with Atlantic white-sided dolphins above, to be precautionary, we authorize take for two groups of 20 animals over the course of the project. Therefore, we authorize 40 Level B harassment takes of common dolphins. No takes by Level A harassment are expected or authorized because we expect MEDOT will PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 1–3 1–3 1–3 3 Strikes per pile or duration (min) 54,000 54,000 20 30 effectively shutdown for common dolphins at the full extent of the very small Level A harassment zones. Harbor Porpoise The peak month of observation from Shaw Institute (2018) was May when the equivalent of 40 harbor porpoise per day would be observed in the Level B harassment zone for DTH. With 80 days of in-water work for the project we estimate potential Level B harassment take events at 3,200 for harbor porpoise. No takes by Level A harassment are expected authorized because we expect MEDOT will effectively shutdown for harbor porpoises at the full extent of the small Level A harassment zones. Harbor Seal The peak month of observation from Shaw Institute (2018) was August when the equivalent of 99 seals per day would be observed in the Level B harassment zone for DTH. With 80 days of in-water work for the project we estimate potential Level B harassment zone exposures for harbor seals at 7,920. E:\FR\FM\14DEN1.SGM 14DEN1 71039 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices Because of the larger size of the Level A harassment zones for 24-inch DTH and the abundance of harbor seals, we authorize 2 of the above assumed 99 takes per day by Level A harassment for the 48 days of possible DTH activity. Thus of the 7,920 assumed harbor seal exposures we authorize 96 Level A harassment takes and 7,824 Level B harassment takes. Gray Seal The peak month of observation from Shaw Institute (2018) was July when the equivalent of 4 seals per day would be observed in the Level B harassment zone for DTH. With 80 days of in-water work for the project we estimate potential Level B harassment takes for gray seals at 320. No takes by Level A harassment are expected or authorized because we expect MEDOT will effectively shutdown for gray seals at the full extent of the small Level A harassment zones. Harp Seal Density data for this species in the project vicinity do not exist as no harp seals were seen in the Shaw Institute (2018) study. Most sightings on record in Maine occur during the winter months when transient individuals extend their range south in search of food. To be precautionary, we authorize 1 take per month of harp seals. The project has 80 days of in water work equivalent to 16 5-day work weeks or 4 months. Therefore, we authorize 4 Level B harassment takes of harp seals. No takes by Level A harassment are expected or authorized because we expect MEDOT will effectively shutdown for harp seals at the full extent of the small Level A harassment zones. Hooded Seal Density data for this species in the project vicinity also do not exist as no hooded seals were seen in the Shaw Institute (2018) study. Most sightings on record in Maine occur during the winter months when transient individuals extend their range south in search of food. As with harp seals, above, to be precautionary, we authorize 1 take per month of hooded seals. Therefore, we authorize 4 Level B harassment takes of hooded seals. No takes by Level A harassment are expected or authorized because we expect MEDOT will effectively shutdown for hooded seals at the full extent of the small Level A harassment zones. TABLE 6—AUTHORIZED AMOUNT OF TAKING, BY LEVEL A HARASSMENT AND LEVEL B HARASSMENT, BY SPECIES AND STOCK AND PERCENT OF TAKE BY STOCK Common name Scientific name Stock Level A Harbor porpoise ..................... Atlantic white-sided dolphin ... Common dolphin .................... Harbor seal ............................ Gray seal ................................ Harp seal ................................ Hooded seal ........................... Phocoena phocoena ....................... Lagenorhynchus acutus .................. Delphinus delphis ............................ Phoca vitulina .................................. Halichoerus grypus ......................... Pagophilus groenlandicus ............... Cystophora cristata ......................... Gulf Maine/Bay of Fundy ...... Western North Atlantic .......... Western North Atlantic .......... Western North Atlantic .......... Western North Atlantic .......... Western North Atlantic .......... Western North Atlantic .......... Level B 0 0 0 96 0 0 0 3,200 40 40 7,824 320 4 4 Percent of stock 3.3 <0.1 <0.1 12.8 <0.1 <0.1 NA NA—not available as there is no official stock size estimate. jspears on DSK121TN23PROD with NOTICES1 Mitigation In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors: VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. The following mitigation measures are in the IHA: • Avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions; • 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 and DTH 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 indicated in Table 7. 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 E:\FR\FM\14DEN1.SGM 14DEN1 71040 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices hearing group. To simplify implementation of shutdown zones MEDOT has proposed 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. They have proposed to round-up shutdown zone sizes to the next highest 50 m from the distances in Table 4. For comparison purposes, Table 7 shows both the minimum shutdown zones we would normally require and the shutdown zones MEDOT proposes to implement. NMFS proposes to include the latter in the requested IHA; • Employ Protected Species Observers (PSOs) and establish monitoring locations as described in the Marine Mammal Monitoring Plan and Section 5 of the IHA. MEDOT must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions. For all DTH, pile driving and removal at least one PSO must be used. The PSO will be stationed as close to the activity as possible; • The placement of the PSOs during all pile driving and removal and DTH activities will ensure that the entire shutdown zone is visible during pile installation. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone will not be visible (e.g., fog, heavy rain), pile driving and removal must be delayed until the PSO is confident marine mammals within the shutdown zone could be detected; • Monitoring must take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine the shutdown zones clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made; • If pile driving 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; and • MEDOT must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reducedenergy strike sets. A soft start must be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer; TABLE 7—MINIMUM REQUIRED SHUTDOWN ZONES (METERS) BY HEARING GROUP AND VOLUNTARY PLANNED SHUTDOWN ZONES FOR CETACEANS AND PINNIPEDS FOR EACH METHOD Piles per day Method DTH—24-inch .................................................................. DTH—8-inch .................................................................... Impact—24-inch ............................................................... Vibratory—24-inch ........................................................... MF 1 2 3 1 2 3 1 2 3 3 HF 10 10 20 10 10 10 10 10 10 10 Phocid 200 320 420 50 70 90 40 60 80 30 90 150 190 20 40 40 20 30 40 20 Cetacean 200 350 450 100 100 100 50 100 100 50 Pinniped 100 200 200 50 50 50 50 50 50 50 Note: First three columns are what NMFS would consider appropriate in this circumstance, and the last two are what the applicant has proposed and what NMFS includes in the IHA. jspears on DSK121TN23PROD with NOTICES1 Based on our evaluation of the applicant’s proposed measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring and Reporting In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring. Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following: • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density); • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas); • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors; • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks; • Effects on marine mammal habitat (e.g., marine mammal prey species, E:\FR\FM\14DEN1.SGM 14DEN1 jspears on DSK121TN23PROD with NOTICES1 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices acoustic habitat, or other important physical components of marine mammal habitat); and • Mitigation and monitoring effectiveness. a vibratory hammer or DTH is used a second PSO must be located in the Level B harassment zone at one of two shoreline stations east of the bridge (see map in application Figure 13–1). Visual Monitoring • Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following: PSOs must be independent (i.e., not construction personnel) and have no other assigned tasks during monitoring periods. At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization. Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training. PSOs must be approved by NMFS prior to beginning any activity subject to this IHA; • PSOs must record all observations of marine mammals as described in the Section 5 of the IHA and the Marine Mammal Monitoring Plan, regardless of distance from the pile being driven or DTH activity. PSOs shall document any behavioral reactions in concert with distance from piles being driven or removed; PSOs must have the following additional qualifications: • Ability to conduct field observations and collect data according to assigned protocols; • Experience or training in the field identification of marine mammals, including the identification of behaviors; • Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; • Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and • Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary; • MEDOT must establish the following monitoring locations. For all pile driving and DTH activities, a minimum of one PSO must be assigned to the active pile driving or DTH location to monitor the shutdown zones and as much of the Level A and Level B harassment zones as possible. When Reporting VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 A draft marine mammal monitoring report will be submitted to NMFS within 90 days after the completion of pile driving and removal activities, or 60 days prior to a requested date of issuance of any future IHAs for projects at the same location, whichever comes first. The report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include: • Dates and times (begin and end) of all marine mammal monitoring; • Construction activities occurring during each daily observation period, including the number and type of piles driven or removed and by what method (i.e., impact or cutting) and the total equipment duration for cutting for each pile or total number of strikes for each pile (impact driving); • PSO locations during marine mammal monitoring; • Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance; • Upon observation of a marine mammal, the following information: Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; Time of sighting; Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species; Distance and bearing of each marine mammal observed relative to the pile being driven for each sighting (if pile driving was occurring at time of sighting); Estimated number of animals (min/max/best estimate); Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.); Animal’s closest point of approach and estimated time spent within the harassment zone; Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity (e.g., no response or changes in behavioral state PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 71041 such as ceasing feeding, changing direction, flushing, or breaching); • Number of marine mammals detected within the harassment zones, by species; and • Detailed information about any implementation of any mitigation triggered (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. Reporting Injured or Dead Marine Mammals In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the IHA-holder must immediately cease the specified activities and report the incident to the Office of Protected Resources (OPR) (PR.ITP.MonitoringReports@noaa.gov), NMFS and to Greater Atlantic Regional Stranding Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, MEDOT must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the IHA. The IHA-holder must not resume their activities until notified by NMFS. The report must include the following information: • Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); • Species identification (if known) or description of the animal(s) involved; • Condition of the animal(s) (including carcass condition if the animal is dead); • Observed behaviors of the animal(s), if alive; • If available, photographs or video footage of the animal(s); and • General circumstances under which the animal was discovered. Negligible Impact Analysis and Determination NMFS has defined negligible impact 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 (50 CFR 216.103). A negligible impact E:\FR\FM\14DEN1.SGM 14DEN1 jspears on DSK121TN23PROD with NOTICES1 71042 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., populationlevel effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ‘‘taken’’ through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS’s implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). Pile driving and removal and DTH activities have the potential to disturb or displace marine mammals. Specifically, the project activities may result in take, in the form of Level B harassment from underwater sounds generated from pile driving and removal and DTH for all species and a small amount of Level A harassment take for harbor seals. Potential takes could occur if individuals are present in the ensonified zone when these activities are underway. To avoid repetition, the discussion of our analyses applies to all the species listed in Table 6, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity. The takes from Level A and Level B harassment would be due to potential behavioral disturbance, TTS, and PTS. No serious injury or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for harassment is minimized through the construction method and the implementation of the planned mitigation measures (see Proposed Mitigation section). VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 Many of the Level A harassment zones identified in Table 6 are based upon an animal exposed to pile driving or DTH multiple piles per day. Considering the short duration to impact drive or DTH each pile and breaks between pile installations (to reset equipment and move pile into place), this means an animal would have to remain within the area estimated to be ensonified above the Level A harassment threshold for multiple hours. This is highly unlikely given marine mammal movement throughout the area. If an animal was exposed to accumulated sound energy, the resulting PTS would likely be small (e.g., PTS onset) at lower frequencies where pile driving energy is concentrated, and unlikely to result in impacts to individual fitness, reproduction, or survival. The nature of the pile driving project precludes the likelihood of serious injury or mortality. For all species and stocks, take would occur within a limited, confined area (adjacent to the Falls Bridge) of the stock’s range. Level A and Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein. Further the amount of take authorized is small when compared to stock abundance. Behavioral responses of marine mammals to pile driving at the project site, if any, are expected to be mild and temporary. Marine mammals within the Level B harassment zone may not show any visual cues they are disturbed by activities (as noted during modification to the Kodiak Ferry Dock) or could become alert, avoid the area, leave the area, or display other mild responses that are not observable such as changes in vocalization patterns. Given the short duration of noise-generating activities per day, any harassment would be temporary. There are no other areas or times of known biological importance for any of the affected species. In addition, it is unlikely that minor noise effects in a small, localized area of habitat would have any effect on the stocks’ ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts. In summary and as described above, the following factors primarily support our determination that the impacts PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival: • No mortality is anticipated or authorized; • Authorized Level A harassment of harbor seals would be very small amounts and of low degree; • No important habitat areas have been identified within the project area; • For all species, the project is a very small and peripheral part of their range; • MEDOT would implement mitigation measures such as soft-starts, and shut downs. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks. Small Numbers As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. The amount of take NMFS authorizes is below one third of the estimated stock abundance for all species and stocks (in fact, take of individuals is less than 10 percent of the abundance of the affected stocks except for harbor seals where take is 12.8 percent, see Table 6). This is likely a conservative estimate because they assume all takes are of different individual animals which is likely not the case. Some individuals may return multiple times in a day, but PSOs would count them as separate takes if they cannot be individually identified. In summary and as described above, the following factors primarily support our determination regarding the E:\FR\FM\14DEN1.SGM 14DEN1 Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices incidental take of small numbers of a species or stock: • The take of marine mammal stocks authorized for take comprises less than 10 percent of any stock abundance (with the exception of harbor seals); and • Many of the takes would be repeats of the same animal and it is likely that a number of individual animals could be taken 10 or more times. Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks. Unmitigable Adverse Impact Analysis and Determination There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. jspears on DSK121TN23PROD with NOTICES1 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) with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs 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 has determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review. Endangered Species Act Section 7(a)(2) of the 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 VerDate Sep<11>2014 18:24 Dec 13, 2021 Jkt 256001 ESA compliance for the issuance of IHAs, NMFS consults internally whenever we propose to authorize take for endangered or threatened species. 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 an IHA to MEDOT for the potential harassment of small numbers of seven marine mammal species incidental to the Falls Bridge Replacement Project in Blue Hill, Maine, provided the previously mentioned mitigation, monitoring and reporting requirements are followed. Dated: December 9, 2021. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2021–27038 Filed 12–13–21; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Agency Information Collection Activities; Submission to the Office of Management and Budget (OMB) for Review and Approval; Comment Request; Pacific Islands Logbook Family of Forms National Marine Fisheries Service (NMFS), National Oceanic & Atmospheric Administration (NOAA), Commerce. ACTION: Notice of information collection, request for comment. AGENCY: The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public’s reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB. DATES: To ensure consideration, comments regarding this proposed information collection must be received on or before February 14, 2022. ADDRESSES: Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at adrienne.thomas@noaa.gov. Please reference OMB Control Number 0648– SUMMARY: PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 71043 0214 in the subject line of your comments. Do not submit Confidential Business Information or otherwise sensitive or protected information. FOR FURTHER INFORMATION CONTACT: Requests for additional information or specific questions related to collection activities should be directed to Walter Ikehara, Fishery Information Specialist, NMFS Pacific Islands Regional Office, walter.ikehara@noaa.gov or (808) 725– 5175. SUPPLEMENTARY INFORMATION: I. Abstract This request is for revision of a currently approved information collection. The revision will merge the logbook and transshipment log from the currently approved collection 0648– 0462 Pacific Islands Coral Reef Ecosystems Logbook and Reporting and the logbook from the currently approved collection 0648–0577 Non-commercial Permit and Reporting Requirements in the Main Hawaiian Islands Bottomfish Fishery into the 0648–0214 information collection that includes logbook and reporting from other Federally-managed fisheries in the Pacific Islands Region (PIR). After this revision is approved, 0648–0462 and 0648–0577 will be discontinued. Vessel operators or owners in Federally-managed fisheries in the PIR are required to provide certain information about their fishing activities, catch, and interactions with protected species by submitting reports to NMFS, per 50 CFR part 665.14. These data are needed to determine the condition of fish stocks and whether current management measures are having the intended effects, to evaluate the benefits and costs of changes in management measures, and to monitor and respond to accidental takes of endangered and threatened species, including seabirds, sea turtles, and marine mammals. The reports are submitted using paper logbooks or electronic logbooks (computer tablets or other devices) to the NMFS Pacific Islands Fisheries Science Center. The Hawaii pelagic longline fishery and large vessels (50 ft or longer) in the American Samoa pelagic longline fishery will submit reports using electronic logbooks, although paper logbooks will be used if there are equipment or transmission failures. Electronic logbooks collect the same information as paper logbooks. All other PIR fisheries use only paper logbooks. Longline vessel operators are also required to submit pre-trip notifications, including information on trip type, E:\FR\FM\14DEN1.SGM 14DEN1

Agencies

[Federal Register Volume 86, Number 237 (Tuesday, December 14, 2021)]
[Notices]
[Pages 71034-71043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27038]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648- XB631]


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 an 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 an incidental harassment authorization (IHA) to 
the Maine Department of Transportation (MEDOT) to incidentally harass, 
by Level A and B harassment only, marine mammals during construction 
activities associated with the Falls Bridge Replacement Project in Blue 
Hill, Maine.

DATES: This authorization is effective from July 1, 2022 through June 
30, 2023.

FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., Office of 
Protected Resources, NMFS, (301) 427-8401. Electronic copies of the 
application and supporting documents, 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 above.

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, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    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 the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On October 7, 2021, NMFS received an application from MEDOT 
requesting an IHA to take small numbers of seven species (harbor seal 
(Phoca vitulina), gray seal (Halichoerus grypus), harp seal (Pagophilus 
groenlandicus), hooded seal (Cystophora cristata), harbor porpoise 
(Phocoena phocoena), Atlantic white-sided dolphin (Lagenorhynchus 
acutus) and common dolphin (Delphinus delphis)) of marine mammals 
incidental to pile driving and removal associated with the project. The 
application was deemed adequate and complete on October 20, 2021. 
MEDOT's request is for take of a small number of these species by Level 
B harassment and a small amount of Level A harassment take for harbor 
seals. Neither MEDOT nor NMFS expects serious injury or mortality to 
result from this activity and, therefore, an IHA is appropriate.

Description of the Specified Activity

    The purpose of the project is to address the structural deficiency 
of the Falls Bridge and improve public safety. In-water pile driving is 
needed to create temporary work trestles and support towers and a 
temporary bridge for vehicle traffic during construction. The work in 
this application involves the installation of up to 95 24-inch diameter 
steel piles and then the removal of all piles at the conclusion of the 
project. The project will take no more than 80 days of in-water pile 
work. A detailed description of the planned project is provided in the 
Federal Register notice for the proposed IHA (86 FR 61164; November, 5, 
2021). Since that time, no changes have been made to the planned 
activities. Therefore, a detailed description is not provided here. 
Please

[[Page 71035]]

refer to that Federal Register notice for the description of the 
specific activity.

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to MEDOT was published 
in the Federal Register on November 5, 2021 (86 FR 61164). That notice 
described, in detail, MEDOT's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received no 
public comments.

Changes From the Proposed IHA to Final IHA

    There have been no changes from the proposed to the final IHA.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species with expected potential for occurrence in 
the project area and summarizes information related to the population 
or stock, including regulatory status under the MMPA and Endangered 
Species Act (ESA) and potential biological removal (PBR), where known. 
For taxonomy, we follow Committee on Taxonomy (2021). PBR is defined by 
the MMPA as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population (as described in NMFS's SARs). While no mortality is 
anticipated or authorized here, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's 2021 U.S. Atlantic Draft SARs (e.g., Hayes et al., 2021).

                    Table 1--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Order Cetartiodactyla--Cetacea
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -; N             93,233 (0.71, 54,443,         544         26
                                                                                                             See SAR).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -; N             172,8974 (0.21,              1452        399
                                                                                                             145,216, 2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -; N             95,543 (0.31; 74,034;         851        217
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -; N                61,336 (0.08; 57,637,       1,729        339
                                                                                                             2018).
    Gray seal \4\...................  Halichoerus grypus.....  Western North Atlantic.  -; N                27,300 (0.22, 22,785,       1,389      4,453
                                                                                                             2018).
    Harp seal.......................  Pagophilus               Western North Atlantic.  -; N                7,600,000 (UNK,           426,000    178,573
                                       groenlandicus.                                                        7,100,000, 2019).
    Hooded seal.....................  Cystophora cristata....  Western North Atlantic.  -; N                UNK (UNK, UNK, See            UNK      1,680
                                                                                                             SAR).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 505,000. The PBR value is
  estimated for the U.S. population, while the M/SI estimate is provided for the entire gray seal stock (including animals in Canada).

    Harbor seal, gray seal, harbor porpoise, Atlantic white-sided 
dolphin and common dolphin spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we have proposed 
authorizing take of these species. Harp seal and hooded seal are rare 
in the project area but could occur and we have proposed authorizing 
take of these species. All species that could potentially occur in the 
proposed survey areas are included in the MEDOT's IHA application (see 
application, Section 3). Humpback whale, North Atlantic right whale, 
minke whale, sei whale and fin

[[Page 71036]]

whale could potentially occur in the area. However the spatial and 
temporal occurrence of these species is very rare, typically further 
offshore, the species are readily observed, and the applicant would 
shut down pile driving if they enter the project area (see Monitoring 
and Reporting section). Thus take is not expected to occur, and they 
are not discussed further.
    A detailed description of the of the species likely to be affected 
by the project, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (86 FR 
61164; November 5, 2021); since that time, we are not aware of any 
changes in the status of these species and stocks; therefore, detailed 
descriptions are not provided here. Please refer to that Federal 
Register notice for these descriptions. Please also refer to NMFS' 
website (https://www.fisheries.noaa.gov/find-species) for generalized 
species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from MEDOT's construction 
activities have the potential to result in behavioral harassment of 
marine mammals in the vicinity of the survey area. The notice of 
proposed IHA (86 FR 61164; November 5, 2021) included a discussion of 
the effects of anthropogenic noise on marine mammals and the potential 
effects of underwater noise from MEDOT's construction on marine mammals 
and their habitat. That information and analysis is incorporated by 
reference into this final IHA determination and is not repeated here; 
please refer to the notice of proposed IHA (86 FR 61164; November 5, 
2021).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of 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).
    Authorized takes would primarily be by Level B harassment, as use 
of the acoustic sources has the potential to result in disruption of 
behavioral patterns for individual marine mammals. There is also some 
potential for Level A harassment to result, primarily for phocids 
because predicted auditory injury zones are larger than for other 
groups and harbor seals are common. Auditory injury is unlikely to 
occur for other species/groups. The mitigation and monitoring measures 
are expected to minimize the severity of the taking to the extent 
practicable. As described previously, no mortality is anticipated or 
authorized for this activity. Below we describe how the take is 
estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which marine mammals will be behaviorally harassed or 
incur some degree of permanent hearing impairment; (2) the area or 
volume of water that will be ensonified above these levels in a day; 
(3) the density or occurrence of marine mammals within these ensonified 
areas; and, (4) and the number of days of activities. We note that 
while these basic factors can contribute to a basic calculation to 
provide an initial prediction of takes, additional information that can 
qualitatively inform take estimates is also sometimes available (e.g., 
previous monitoring results or average group size). Due to the lack of 
marine mammal density data available for this location, NMFS relied on 
local occurrence data and group size to estimate take for some species. 
Below, we describe the factors considered here in more detail and 
present the proposed take estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 decibels (dB) re 1 microPascal ([mu]Pa) (root 
mean square (rms)) for continuous (e.g., vibratory pile-driving) and 
above 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., 
impact pile driving) or intermittent (e.g., scientific sonar) sources.
    MEDOT's proposed activity includes the use of continuous (vibratory 
hammer and Down-the-Hole (DTH) systems) and impulsive (impact pile-
driving) sources, and therefore the 120 and 160 dB re 1 [mu]Pa (rms) 
thresholds are applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). MEDOT's activity includes the use of 
impulsive (impact pile-driving and DTH) and non-impulsive (vibratory 
hammer and DTH) sources.
    These thresholds are provided in Table 2. The references, analysis, 
and methodology used in the development of the thresholds are described 
in NMFS 2018 Technical Guidance, which may be accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

[[Page 71037]]



                     Table 2--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa\2\s. In this Table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the proposed project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the project (i.e., impact and vibratory pile 
driving, and DTH).
    In order to calculate distances to the Level A harassment and Level 
B harassment sound thresholds for the methods and piles being used in 
this project, NMFS used acoustic monitoring data from other locations 
to develop source levels for the various pile types, sizes and methods 
(Table 3).

                                      Table 3--Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
                Method                    Estimated noise levels (dB)                    Source
----------------------------------------------------------------------------------------------------------------
DTH--24-inch impulsive (Level A)......  154 SELss.....................  Denes et al. (2016).
DTH--8-inch impulsive (Level A).......  144 SELss.....................  Reyff (2020).
DTH--non-impulsive (Level B) All sizes  166 dB RMS....................  Denes et al. (2016).
Impact--24-inch.......................  203 Pk, 177 SEL...............  Caltrans (2015).
Vibratory--24-inch....................  165 RMS.......................  Caltrans (2015).
----------------------------------------------------------------------------------------------------------------
Note: SEL = single strike sound exposure level; RMS = root mean square.

Level B Harassment Zones

    Transmission loss (TL) is the decrease in acoustic intensity as an 
acoustic pressure wave propagates out from a source. TL parameters vary 
with frequency, temperature, sea conditions, current, source and 
receiver depth, water depth, water chemistry, and bottom composition 
and topography. The general formula for underwater TL is:

TL = B * Log10 (R1/R2),

where:

TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most appropriate 
assumption for MEDOT's proposed activity in the absence of specific 
modelling.
    MEDOT determined underwater noise would fall below the behavioral 
effects threshold of 160 dB RMS for impact driving at 1,585 m and the 
120 dB rms threshold for vibratory driving at 10,000 m and all 
diameters of holes created by DTH at 11,660 m (Table 4). It should be 
noted that based on the bathymetry and geography of the project area, 
sound will not reach the full distance of the harassment isopleths in 
all directions (see Application Figures 6-3 and 6-4).

                         Table 4--Level A and Level B Isopleths (Meters) for Each Method
----------------------------------------------------------------------------------------------------------------
                                                  Piles per
                     Method                          day           MF           HF         Phocid      Level B
----------------------------------------------------------------------------------------------------------------
DTH--24-inch...................................            1            6          199           89       11,660
                                                           2           10          315          142
                                                           3           13          413          186
DTH--8-inch....................................            1            2           43           20
                                                           2            2           68           31

[[Page 71038]]

 
                                                           3            3           89           40
----------------------------------------------------------------------------------------------------------------
Impact--24-inch................................            1            1           35           16        1,585
                                                           2            2           56           25
                                                           3            3           73           33
----------------------------------------------------------------------------------------------------------------
Vibratory--24-inch.............................            3            2           25           11       10,000
----------------------------------------------------------------------------------------------------------------

Level A Harassment Zones

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of take by Level A harassment. However, these tools offer 
the best way to predict appropriate isopleths when more sophisticated 
3D modeling methods are not available, and NMFS continues to develop 
ways to quantitatively refine these tools, and will qualitatively 
address the output where appropriate. For stationary sources such as 
pile driving or removal and DTH using any of the methods discussed 
above, NMFS User Spreadsheet predicts the closest distance at which, if 
a marine mammal remained at that distance the whole duration of the 
activity, it would not incur PTS. We used the User Spreadsheet to 
determine the Level A harassment isopleths. Inputs used in the User 
Spreadsheet or models are reported in Table 5 and the resulting 
isopleths are reported in Table 4 for each of the construction methods 
and scenarios.

                    Table 5--User Spreadsheet Inputs
------------------------------------------------------------------------
                                                        Strikes per pile
                Method                  Piles per day  or duration (min)
------------------------------------------------------------------------
DTH--24-inch.........................             1-3             54,000
DTH--8-inch..........................             1-3             54,000
Impact--24-inch......................             1-3                 20
Vibratory--24-inch...................               3                 30
------------------------------------------------------------------------

Marine Mammal Occurrence and Take Calculation and Estimation

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations. Here we describe how the information provided above is 
brought together to produce a quantitative take estimate. The main 
information used to inform take calculations is the Shaw Institute 
(2018) monitoring study commissioned for this project. Density of 
animals from that study was calculated for either side of the bridge 
and was applied to the size of the Level B harassment zones (see 
Application Section 6.3 for full details). A summary of proposed take 
is in Table 6.

Atlantic White-Sided Dolphin

    Density data for this species in the project vicinity do not exist 
as no Atlantic white-sided dolphin were seen in the Shaw Institute 
(2018) study. Atlantic white-sided dolphins do not generally occur in 
the shallow, inland bays and estuaries of Maine. However, some could 
occur in rare circumstances. To be precautionary, we authorize take for 
two groups of 20 animals over the course of the project. Therefore, we 
authorize 40 Level B harassment takes of Atlantic white-sided dolphins. 
No takes by Level A harassment are expected or authorized because we 
expect MEDOT will effectively shutdown for Atlantic white-sided 
dolphins at the full extent of the very small Level A harassment zones.

Common Dolphin

    Density data for this species in the project vicinity do not exist 
as no common dolphin were seen in the Shaw Institute (2018) study. 
Common dolphins do not generally occur in the shallow, inland bays and 
estuaries of Maine. However, some could occur in rare circumstances. As 
with Atlantic white-sided dolphins above, to be precautionary, we 
authorize take for two groups of 20 animals over the course of the 
project. Therefore, we authorize 40 Level B harassment takes of common 
dolphins. No takes by Level A harassment are expected or authorized 
because we expect MEDOT will effectively shutdown for common dolphins 
at the full extent of the very small Level A harassment zones.

Harbor Porpoise

    The peak month of observation from Shaw Institute (2018) was May 
when the equivalent of 40 harbor porpoise per day would be observed in 
the Level B harassment zone for DTH. With 80 days of in-water work for 
the project we estimate potential Level B harassment take events at 
3,200 for harbor porpoise. No takes by Level A harassment are expected 
authorized because we expect MEDOT will effectively shutdown for harbor 
porpoises at the full extent of the small Level A harassment zones.

Harbor Seal

    The peak month of observation from Shaw Institute (2018) was August 
when the equivalent of 99 seals per day would be observed in the Level 
B harassment zone for DTH. With 80 days of in-water work for the 
project we estimate potential Level B harassment zone exposures for 
harbor seals at 7,920.

[[Page 71039]]

    Because of the larger size of the Level A harassment zones for 24-
inch DTH and the abundance of harbor seals, we authorize 2 of the above 
assumed 99 takes per day by Level A harassment for the 48 days of 
possible DTH activity. Thus of the 7,920 assumed harbor seal exposures 
we authorize 96 Level A harassment takes and 7,824 Level B harassment 
takes.

Gray Seal

    The peak month of observation from Shaw Institute (2018) was July 
when the equivalent of 4 seals per day would be observed in the Level B 
harassment zone for DTH. With 80 days of in-water work for the project 
we estimate potential Level B harassment takes for gray seals at 320. 
No takes by Level A harassment are expected or authorized because we 
expect MEDOT will effectively shutdown for gray seals at the full 
extent of the small Level A harassment zones.

Harp Seal

    Density data for this species in the project vicinity do not exist 
as no harp seals were seen in the Shaw Institute (2018) study. Most 
sightings on record in Maine occur during the winter months when 
transient individuals extend their range south in search of food. To be 
precautionary, we authorize 1 take per month of harp seals. The project 
has 80 days of in water work equivalent to 16 5-day work weeks or 4 
months. Therefore, we authorize 4 Level B harassment takes of harp 
seals. No takes by Level A harassment are expected or authorized 
because we expect MEDOT will effectively shutdown for harp seals at the 
full extent of the small Level A harassment zones.

Hooded Seal

    Density data for this species in the project vicinity also do not 
exist as no hooded seals were seen in the Shaw Institute (2018) study. 
Most sightings on record in Maine occur during the winter months when 
transient individuals extend their range south in search of food. As 
with harp seals, above, to be precautionary, we authorize 1 take per 
month of hooded seals. Therefore, we authorize 4 Level B harassment 
takes of hooded seals. No takes by Level A harassment are expected or 
authorized because we expect MEDOT will effectively shutdown for hooded 
seals at the full extent of the small Level A harassment zones.

  Table 6--Authorized Amount of Taking, by Level A Harassment and Level B Harassment, by Species and Stock and
                                            Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                                                                      Percent of
           Common name              Scientific name           Stock          Level A      Level B       stock
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.................  Phocoena phocoena..  Gulf Maine/Bay of             0        3,200          3.3
                                                        Fundy.
Atlantic white-sided dolphin....  Lagenorhynchus       Western North                 0           40         <0.1
                                   acutus.              Atlantic.
Common dolphin..................  Delphinus delphis..  Western North                 0           40         <0.1
                                                        Atlantic.
Harbor seal.....................  Phoca vitulina.....  Western North                96        7,824         12.8
                                                        Atlantic.
Gray seal.......................  Halichoerus grypus.  Western North                 0          320         <0.1
                                                        Atlantic.
Harp seal.......................  Pagophilus           Western North                 0            4         <0.1
                                   groenlandicus.       Atlantic.
Hooded seal.....................  Cystophora cristata  Western North                 0            4           NA
                                                        Atlantic.
----------------------------------------------------------------------------------------------------------------
NA--not available as there is no official stock size estimate.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The following mitigation measures are in the IHA:
     Avoid direct physical interaction with marine mammals 
during construction activity. If a marine mammal comes within 10 m of 
such activity, operations must cease and vessels must reduce speed to 
the minimum level required to maintain steerage and safe working 
conditions;
     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 and DTH 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 
indicated in Table 7. 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

[[Page 71040]]

hearing group. To simplify implementation of shutdown zones MEDOT has 
proposed 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. They have proposed to 
round-up shutdown zone sizes to the next highest 50 m from the 
distances in Table 4. For comparison purposes, Table 7 shows both the 
minimum shutdown zones we would normally require and the shutdown zones 
MEDOT proposes to implement. NMFS proposes to include the latter in the 
requested IHA;
     Employ Protected Species Observers (PSOs) and establish 
monitoring locations as described in the Marine Mammal Monitoring Plan 
and Section 5 of the IHA. MEDOT must monitor the project area to the 
maximum extent possible based on the required number of PSOs, required 
monitoring locations, and environmental conditions. For all DTH, pile 
driving and removal at least one PSO must be used. The PSO will be 
stationed as close to the activity as possible;
     The placement of the PSOs during all pile driving and 
removal and DTH activities will ensure that the entire shutdown zone is 
visible during pile installation. Should environmental conditions 
deteriorate such that marine mammals within the entire shutdown zone 
will not be visible (e.g., fog, heavy rain), pile driving and removal 
must be delayed until the PSO is confident marine mammals within the 
shutdown zone could be detected;
     Monitoring must take place from 30 minutes prior to 
initiation of pile driving activity through 30 minutes post-completion 
of pile driving activity. Pre-start clearance monitoring must be 
conducted during periods of visibility sufficient for the lead PSO to 
determine the shutdown zones clear of marine mammals. Pile driving may 
commence following 30 minutes of observation when the determination is 
made;
     If pile driving 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; and
     MEDOT must use soft start techniques when impact pile 
driving. Soft start requires contractors to provide an initial set of 
three strikes at reduced energy, followed by a 30-second waiting 
period, then two subsequent reduced-energy strike sets. A soft start 
must be implemented at the start of each day's impact pile driving and 
at any time following cessation of impact pile driving for a period of 
30 minutes or longer;

   Table 7--Minimum Required Shutdown Zones (Meters) by Hearing Group and Voluntary Planned Shutdown Zones for
                                     Cetaceans and Pinnipeds for Each Method
----------------------------------------------------------------------------------------------------------------
                                     Piles per
              Method                    day           MF           HF         Phocid      Cetacean     Pinniped
----------------------------------------------------------------------------------------------------------------
DTH--24-inch......................            1           10          200           90          200          100
                                              2           10          320          150          350          200
                                              3           20          420          190          450          200
DTH--8-inch.......................            1           10           50           20          100           50
                                              2           10           70           40          100           50
                                              3           10           90           40          100           50
Impact--24-inch...................            1           10           40           20           50           50
                                              2           10           60           30          100           50
                                              3           10           80           40          100           50
Vibratory--24-inch................            3           10           30           20           50           50
----------------------------------------------------------------------------------------------------------------
Note: First three columns are what NMFS would consider appropriate in this circumstance, and the last two are
  what the applicant has proposed and what NMFS includes in the IHA.

    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
mitigation measures provide the means effecting the least practicable 
impact on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species,

[[Page 71041]]

acoustic habitat, or other important physical components of marine 
mammal habitat); and
     Mitigation and monitoring effectiveness.

Visual Monitoring

     Monitoring must be conducted by qualified, NMFS-approved 
PSOs, in accordance with the following: PSOs must be independent (i.e., 
not construction personnel) and have no other assigned tasks during 
monitoring periods. At least one PSO must have prior experience 
performing the duties of a PSO during construction activity pursuant to 
a NMFS-issued incidental take authorization. Other PSOs may substitute 
other relevant experience, education (degree in biological science or 
related field), or training. PSOs must be approved by NMFS prior to 
beginning any activity subject to this IHA;
     PSOs must record all observations of marine mammals as 
described in the Section 5 of the IHA and the Marine Mammal Monitoring 
Plan, regardless of distance from the pile being driven or DTH 
activity. PSOs shall document any behavioral reactions in concert with 
distance from piles being driven or removed;
    PSOs must have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary;
     MEDOT must establish the following monitoring locations. 
For all pile driving and DTH activities, a minimum of one PSO must be 
assigned to the active pile driving or DTH location to monitor the 
shutdown zones and as much of the Level A and Level B harassment zones 
as possible. When a vibratory hammer or DTH is used a second PSO must 
be located in the Level B harassment zone at one of two shoreline 
stations east of the bridge (see map in application Figure 13-1).

Reporting

    A draft marine mammal monitoring report will be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities, or 60 days prior to a requested date of issuance of any 
future IHAs for projects at the same location, whichever comes first. 
The report will include an overall description of work completed, a 
narrative regarding marine mammal sightings, and associated PSO data 
sheets. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including the number and type of piles driven or 
removed and by what method (i.e., impact or cutting) and the total 
equipment duration for cutting for each pile or total number of strikes 
for each pile (impact driving);
     PSO locations during marine mammal monitoring;
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance;
     Upon observation of a marine mammal, the following 
information: Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting; Time of sighting; Identification of the 
animal(s) (e.g., genus/species, lowest possible taxonomic level, or 
unidentified), PSO confidence in identification, and the composition of 
the group if there is a mix of species; Distance and bearing of each 
marine mammal observed relative to the pile being driven for each 
sighting (if pile driving was occurring at time of sighting); Estimated 
number of animals (min/max/best estimate); Estimated number of animals 
by cohort (adults, juveniles, neonates, group composition, etc.); 
Animal's closest point of approach and estimated time spent within the 
harassment zone; Description of any marine mammal behavioral 
observations (e.g., observed behaviors such as feeding or traveling), 
including an assessment of behavioral responses thought to have 
resulted from the activity (e.g., no response or changes in behavioral 
state such as ceasing feeding, changing direction, flushing, or 
breaching);
     Number of marine mammals detected within the harassment 
zones, by species; and
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the IHA-holder must 
immediately cease the specified activities and report the incident to 
the Office of Protected Resources (OPR) 
([email protected]), NMFS and to Greater Atlantic 
Regional Stranding Coordinator as soon as feasible. If the death or 
injury was clearly caused by the specified activity, MEDOT must 
immediately cease the specified activities until NMFS is able to review 
the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the IHA. The IHA-holder must not resume their activities until 
notified by NMFS. The report must include the following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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 (50 CFR 216.103). A 
negligible impact

[[Page 71042]]

finding is based on the lack of likely adverse effects on annual rates 
of recruitment or survival (i.e., population-level effects). An 
estimate of the number of takes alone is not enough information on 
which to base an impact determination. In addition to considering 
estimates of the number of marine mammals that might be ``taken'' 
through harassment, NMFS considers other factors, such as the likely 
nature of any responses (e.g., intensity, duration), the context of any 
responses (e.g., critical reproductive time or location, migration), as 
well as effects on habitat, and the likely effectiveness of the 
mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    Pile driving and removal and DTH activities have the potential to 
disturb or displace marine mammals. Specifically, the project 
activities may result in take, in the form of Level B harassment from 
underwater sounds generated from pile driving and removal and DTH for 
all species and a small amount of Level A harassment take for harbor 
seals. Potential takes could occur if individuals are present in the 
ensonified zone when these activities are underway.
    To avoid repetition, the discussion of our analyses applies to all 
the species listed in Table 6, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. There is little information about the nature or severity of 
the impacts, or the size, status, or structure of any of these species 
or stocks that would lead to a different analysis for this activity.
    The takes from Level A and Level B harassment would be due to 
potential behavioral disturbance, TTS, and PTS. No serious injury or 
mortality is anticipated given the nature of the activity and measures 
designed to minimize the possibility of injury to marine mammals. The 
potential for harassment is minimized through the construction method 
and the implementation of the planned mitigation measures (see Proposed 
Mitigation section).
    Many of the Level A harassment zones identified in Table 6 are 
based upon an animal exposed to pile driving or DTH multiple piles per 
day. Considering the short duration to impact drive or DTH each pile 
and breaks between pile installations (to reset equipment and move pile 
into place), this means an animal would have to remain within the area 
estimated to be ensonified above the Level A harassment threshold for 
multiple hours. This is highly unlikely given marine mammal movement 
throughout the area. If an animal was exposed to accumulated sound 
energy, the resulting PTS would likely be small (e.g., PTS onset) at 
lower frequencies where pile driving energy is concentrated, and 
unlikely to result in impacts to individual fitness, reproduction, or 
survival.
    The nature of the pile driving project precludes the likelihood of 
serious injury or mortality. For all species and stocks, take would 
occur within a limited, confined area (adjacent to the Falls Bridge) of 
the stock's range. Level A and Level B harassment will be reduced to 
the level of least practicable adverse impact through use of mitigation 
measures described herein. Further the amount of take authorized is 
small when compared to stock abundance.
    Behavioral responses of marine mammals to pile driving at the 
project site, if any, are expected to be mild and temporary. Marine 
mammals within the Level B harassment zone may not show any visual cues 
they are disturbed by activities (as noted during modification to the 
Kodiak Ferry Dock) or could become alert, avoid the area, leave the 
area, or display other mild responses that are not observable such as 
changes in vocalization patterns. Given the short duration of noise-
generating activities per day, any harassment would be temporary. There 
are no other areas or times of known biological importance for any of 
the affected species.
    In addition, it is unlikely that minor noise effects in a small, 
localized area of habitat would have any effect on the stocks' ability 
to recover. In combination, we believe that these factors, as well as 
the available body of evidence from other similar activities, 
demonstrate that the potential effects of the specified activities will 
have only minor, short-term effects on individuals. The specified 
activities are not expected to impact rates of recruitment or survival 
and will therefore not result in population-level impacts.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality is anticipated or authorized;
     Authorized Level A harassment of harbor seals would be 
very small amounts and of low degree;
     No important habitat areas have been identified within the 
project area;
     For all species, the project is a very small and 
peripheral part of their range;
     MEDOT would implement mitigation measures such as soft-
starts, and shut downs.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
proposed activity will have a negligible impact on all affected marine 
mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, where estimated numbers are 
available, NMFS compares the number of individuals taken to the most 
appropriate estimation of abundance of the relevant species or stock in 
our determination of whether an authorization is limited to small 
numbers of marine mammals. When the predicted number of individuals to 
be taken is fewer than one third of the species or stock abundance, the 
take is considered to be of small numbers. Additionally, other 
qualitative factors may be considered in the analysis, such as the 
temporal or spatial scale of the activities.
    The amount of take NMFS authorizes is below one third of the 
estimated stock abundance for all species and stocks (in fact, take of 
individuals is less than 10 percent of the abundance of the affected 
stocks except for harbor seals where take is 12.8 percent, see Table 
6). This is likely a conservative estimate because they assume all 
takes are of different individual animals which is likely not the case. 
Some individuals may return multiple times in a day, but PSOs would 
count them as separate takes if they cannot be individually identified.
    In summary and as described above, the following factors primarily 
support our determination regarding the

[[Page 71043]]

incidental take of small numbers of a species or stock:
     The take of marine mammal stocks authorized for take 
comprises less than 10 percent of any stock abundance (with the 
exception of harbor seals); and
     Many of the takes would be repeats of the same animal and 
it is likely that a number of individual animals could be taken 10 or 
more times.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

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) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs 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 has determined 
that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review.

Endangered Species Act

    Section 7(a)(2) of the 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 whenever 
we propose to authorize take for endangered or threatened species.
    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 an IHA to MEDOT for the potential harassment of 
small numbers of seven marine mammal species incidental to the Falls 
Bridge Replacement Project in Blue Hill, Maine, provided the previously 
mentioned mitigation, monitoring and reporting requirements are 
followed.

    Dated: December 9, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-27038 Filed 12-13-21; 8:45 am]
BILLING CODE 3510-22-P