Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Interstate Bridge Replacement Project on Interstate 5 Between Portland, Oregon and Vancouver, WA

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 217</CFR> <DEPDOC>[Docket No. 250814-0142]</DEPDOC> <RIN>RIN 0648-BN34</RIN> <SUBJECT>Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Interstate Bridge Replacement Project on Interstate 5 Between Portland, Oregon and Vancouver, WA</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> Interstate Bridge Replacement Program (IBRP) applied for authorization to take small numbers of marine mammals incidental to the Interstate Bridge Replacement Project (IBR) on Interstate 5 (I-5) between Portland, Oregon, and Vancouver, Washington over the course of 5 years from the date of issuance. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations setting forth permissible methods of taking, other means of effecting the least practicable adverse impact on such marine mammal stocks ( <E T="03">i.e.,</E> mitigation measures), and requirements pertaining to monitoring and reporting such takes and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the promulgation of the requested MMPA regulations, and NMFS's responses to public comments will be summarized in the final notice of our decision. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than September 18, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this proposed rule is available at <E T="03">https://www.regulations.gov/docket/NOAA-NMFS-2025-0273.</E> You may submit comments on this document, identified by NOAA-NMFS-2025-0273, by any of the following methods: • <E T="03">Electronic Submission:</E> Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to <E T="03">https://www.regulations.gov</E> and type NOAA-NMFS-2025-0273 in the Search box (note: copying and pasting the FDMS Docket Number directly from this document may not yield search results). Click on the “Comment” icon, complete the required fields, and enter or attach your comments. • <E T="03">Mail:</E> Submit written comments to: Permits and Conservation Division, Office of Protected Resources, 1315 East-West Highway, F/PR1 Room 13805, Silver Spring, MD 20910. <E T="03">Instructions:</E> Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, <E T="03">etc.</E> ), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). 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: <E T="03">https://www.fisheries.noaa.gov/action/incidental-take-authorization-interstate-bridge-replacement-programs-interstate-bridge.</E> In case of problems accessing these documents, please call the contact listed below. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Cara Hotchkin, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Purpose of Regulatory Action</HD> These proposed regulations, promulgated under the authority of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ), would provide a framework for authorizing the take of marine mammals incidental to construction activities associated with the IBR project, including impact and vibratory pile driving. NMFS received an application from the IBRP requesting 5-year regulations and a letter of authorization issued thereunder to take individuals of three species, comprising three stocks of marine mammals by Level A harassment and Level B harassment incidental to the IBRP's activities. No serious injury or mortality is anticipated or proposed for authorization. Please see Background below for definitions of harassment. The proposed regulations include mitigation, monitoring, and reporting requirements. These requirements, which were proposed by IBRP, are expected to minimize the number and/or intensity of incidents of marine mammal take, as well as to provide information to better understand the impacts of the action and document compliance. IBRP has agreed that all of the mitigation measures are practicable. As required by the MMPA, NMFS concurred that these measures are sufficient to achieve the least practicable adverse impact on the affected marine mammal species or stocks and their habitat. <HD SOURCE="HD2">Legal Authority for the Proposed Action</HD> Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce 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 for up to 5 years if, after notice and public comment, the agency makes certain findings and promulgates regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Proposed Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing 5-year regulations and for any subsequent letters of authorization (LOAs). <HD SOURCE="HD2">Summary of Major Provisions Within the Proposed Rule</HD> Following is a summary of the major provisions of this proposed rule regarding the IBRP's activities. These measures include: • Prescribing permissible methods of taking of small numbers of marine mammals by Level A harassment and/or Level B harassment incidental to the IBR project; • Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities; • Establishment of shutdown zones; • Bubble curtains required for impact driving of steel piles except as necessary to verify bubble curtain effectiveness during hydroacoustic monitoring; • Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power; • Submittal of monitoring reports including a summary of marine mammal species and behavioral observations, construction shutdowns or delays, and construction work completed; and • Hydroacoustic monitoring to verify effectiveness of noise attenuation devices and sound source level assumptions for modeling. Through adaptive management, the proposed regulations would allow NMFS Office of Protected Resources to modify ( <E T="03">e.g.,</E> remove, revise, or add to) the existing mitigation, monitoring, or reporting measures summarized above and required by the LOA. <HD SOURCE="HD1">Background</HD> The MMPA prohibits the “take” of marine mammals, with certain exceptions. Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 <E T="03">et seq.</E> ) directs the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are proposed or, if the taking is limited to harassment, a notice of a proposed IHA is 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 monitoring and reporting of the takings. The definitions of all applicable MMPA statutory terms used above are included in the relevant sections below and can be found in section 3 of the MMPA (16 U.S.C. 1362) and NMFS regulations at 50 CFR 216.103. <HD SOURCE="HD1">National Environmental Policy Act</HD> To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 <E T="03">et seq.</E> ) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action ( <E T="03">i.e.,</E> the issuance of incidental take regulations and an LOA) with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (ITAs with no anticipated serious injury or mortality) of the Companion Manual for NAO 216-6A, which do not individually or cumulatively h ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 237k characters. 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