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17458 Federal Register / Vol 17458 Federal Register / Vol. 86, No. 62 / Friday, April 2, 2021 / Rules and Regulations DEPARTMENT OF COMMERCE take of marine mammals incidental to exceptions. Sections 101(a)(5)(A) and the HRCP’s construction activities (D) of the MMPA (16 U.S.C. 1361 et National Oceanic and Atmospheric associated with the HRBT. The HRBT is seq.) direct the Secretary of Commerce Administration a major road transportation (as delegated to NMFS) to allow, upon infrastructure project along the existing request, the incidental, but not 50 CFR Part 217 I–64 highway in Virginia, consisting of intentional, taking of small numbers of [Docket No. 210318–0058] roadway improvements, trestle bridges, marine mammals by U.S. citizens who and bored tunnels crossing the James engage in a specified activity (other than RIN 0648–BK21 River between Norfolk and Hampton. commercial fishing) within a specified The purpose of the project is to address geographical region if certain findings Taking Marine Mammals Incidental to severe traffic congestion at the existing are made and either regulations are the Hampton Roads Bridge Tunnel HRBT crossing by increasing traffic issued or, if the taking is limited to Expansion Project in Norfolk, Virginia capacity and upgrading lanes. harassment, a notice of a proposed incidental take authorization may be AGENCY: National Marine Fisheries Legal Authority for the Action Service (NMFS), National Oceanic and provided to the public for review. Atmospheric Administration (NOAA), Section 101(a)(5)(A) of the MMPA (16 Authorization for incidental takings Commerce. U.S.C. 1371(a)(5)(A)) directs the shall be granted if NMFS finds that the taking will have a negligible impact on ACTION: Final rule; notification of Secretary of Commerce to allow, upon the species or stock(s) and will not have issuance of Letters of Authorization. request, the incidental, but not intentional taking of small numbers of an unmitigable adverse impact on the SUMMARY: NMFS, upon request of the marine mammals by U.S. citizens who availability of the species or stock(s) for Hampton Roads Connector Partners engage in a specified activity (other than taking for subsistence uses (where (HRCP), hereby issues regulations to commercial fishing) within a specified relevant). Further, NMFS must prescribe govern the unintentional taking of geographical region for up to five years the permissible methods of taking and marine mammals incidental to if, after notice and public comment, the other ‘‘means of effecting the least construction activities associated with agency makes certain findings and practicable adverse impact’’ on the the Hampton Roads Bridge Tunnel issues regulations that set forth affected species or stocks and their Expansion Project (HRBT) in Norfolk, permissible methods of taking pursuant habitat, paying particular attention to Virginia, over the course of five years to that activity and other means of rookeries, mating grounds, and areas of (2021–2026). These regulations, which effecting the ‘‘least practicable adverse similar significance, and on the allow for the issuance of Letters of impact’’ on the affected species or availability of the species or stocks for Authorization (LOA) for the incidental stocks and their habitat (see the taking for certain subsistence uses take of marine mammals during the discussion below in the Mitigation (referred to in shorthand as described activities and specified Measures section), as well as monitoring ‘‘mitigation’’); and requirements timeframes, prescribe the permissible and reporting requirements. Section pertaining to the mitigation, monitoring methods of taking and other means of 101(a)(5)(A) of the MMPA and the and reporting of the takings are set forth. effecting the least practicable adverse implementing regulations at 50 CFR part The definitions of all applicable MMPA impact on marine mammal species or 216, subpart I provide the legal basis for statutory terms cited above are included stocks and their habitat, as well as issuing this final rule containing five- in the relevant sections below. requirements pertaining to the year regulations, and for any subsequent Summary of Request monitoring and reporting of such taking. LOAs. As directed by this legal On November 19, 2019, NMFS authority, this final rule contains DATES: Effective from April 2, 2021 received an application from HRCP mitigation, monitoring, and reporting through April 1, 2026. requesting authorization for take of requirements. ADDRESSES: A copy of HRCP’s marine mammals incidental to application and supporting documents, Summary of Major Provisions Within construction activities related to a major as well as a list of the references cited the Final Rule road transport infrastructure project in this document, may be obtained Following is a summary of the major along the existing I-64 highway in online at: https:// provisions of these regulations regarding Virginia, consisting of roadway www.fisheries.noaa.gov/action/ HRCP’s construction activities. These improvements, trestle bridges, and incidental-take-authorization-hampton- measures include: bored tunnels crossing Hampton Roads roads-bridge-tunnel-expansion-project- • Shutdown of construction activities between Norfolk and Hampton, hampton-0. In case of problems under certain circumstances to Virginia. HRCP submitted a revised accessing these documents, please call minimize injury of marine mammals; application on June 27, 2020 which the contact listed below. • Required monitoring of the included changes to construction FOR FURTHER INFORMATION CONTACT: construction areas to detect the presence methods. We determined the Robert Pauline, Office of Protected of marine mammals before beginning application was adequate and complete Resources, NMFS, (301) 427–8401. construction activities; on September 29, 2020. On October 7, SUPPLEMENTARY INFORMATION: • Soft start for impact pile driving to 2020 (85 FR 63256), we published a allow marine mammals the opportunity notice of receipt (NOR) of HRCP’s Purpose and Need for Regulatory application in the Federal Register, Action to leave the area prior to initiating impact pile driving at full power; and requesting comments and information We received an application from the • Use of bubble curtains during related to the request for thirty days. HRCP requesting five-year regulations impact driving of steel piles in The proposed rule was subsequently and authorization to take multiple appropriate circumstances. published in the Federal Register on species of marine mammals. This rule January 8, 2021 (86 FR 1588) and establishes a framework under the Background requested comments and information authority of the MMPA (16 U.S.C. 1361 The MMPA prohibits the ‘‘take’’ of from the public. Please see Comments et seq.) to allow for the authorization of marine mammals, with certain and Responses, below. VerDate Sep<11>2014 23:31 Apr 01, 2021 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\02APR2.SGM 02APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 86, No. 62 / Friday, April 2, 2021 / Rules and Regulations 17459 HRCP previously applied for an occur at variable rates, from a few boring machine (TBM), expansion of the incidental harassment authorization minutes one day to several hours the existing portal islands, and widening of (IHA) to cover initial in-water pile next. HRCP anticipates that between 1 the Willoughby Bay Trestle-Bridges, Bay driving work. That IHA was issued on to 10 piles could be installed per day, Avenue Bridges, and Oastes Creek July 10, 2020 (85 FR 48153; August 10, depending on project scheduling. Bridges. Also, upland portions of I-64 2020), and is effective until July 9, 2021. The project may incidentally expose will be widened to accommodate the Information related to this previous IHA marine mammals occurring in the additional lanes, the Mallory Street may be found online at: https:// vicinity to elevated levels of underwater Bridge will be replaced, and the I-64 www.fisheries.noaa.gov/action/ sound, thereby resulting in incidental overpass bridges will be improved. incidental-take-authorization-hampton- take, by Level A and Level B Pile installation and removal would roads-bridge-tunnel-expansion-project- harassment. occur at North Trestle, North Island, hampton-norfolk. To date, HRCP has Dates and Duration South Island, South Trestle, Willoughby adhered to all mitigation, monitoring, Spit, and Willoughby Bay (refer to and reporting requirements and has not The regulations are valid for a period Figure 1–1 in the application). Table 1 exceed authorized numbers of take. of five years (2021–2026). The specified below identifies the various project HRCP proposed to conduct in-water activities may occur at any time during design segments where in-water marine construction activities, including pile the five-year period of validity of the construction activities are planned that installation and removal, and requested regulations. HRCP expects pile driving have the potential to affect marine authorization to take five species of and removal to occur six days per week. mammals. HRCP plans to install up to marine mammals by Level A and Level The overall number of anticipated days 6,798 piles including 24- to 60-inch B harassment. Neither HRCP nor NMFS of pile installation and removal is 312 steel pipe piles, 24- to 54-inch concrete expects serious injury or mortality to each year for five years, based on a 6- piles, 16-inch timber piles, and sheet result from this activity, and none is day work week for
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