Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the New York Bight, 6092-6096 [2024-01856]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 21 (Wednesday, January 31, 2024)]
[Notices]
[Pages 6092-6096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01856]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD655]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys in the New York Bight

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; request for comments on proposed renewal incidental 
harassment authorization.

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SUMMARY: NMFS received a request from Bluepoint Wind, LLC (BPW) for the 
renewal of their currently active incidental harassment authorization 
(IHA) (hereinafter, the ``initial IHA'') to take marine mammals 
incidental to marine site characterization surveys in coastal waters 
off of New York and New Jersey in the New York Bight, specifically 
within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (Lease) Area OCS-A 0537 and associated export cable 
route (ECR) area. BPW's activities will not be completed prior to the 
IHA's expiration. Pursuant to the Marine Mammal Protection Act (MMPA), 
prior to issuing the currently active IHA, NMFS requested comments on 
both the proposed IHA and the potential for renewing the initial 
authorization if certain requirements were satisfied. The renewal 
requirements have been satisfied, and NMFS is now providing an 
additional 15-day comment period to allow for any additional comments 
on the proposed renewal not previously provided during the initial 30-
day comment period.

DATES: Comments and information must be received no later than February 
15, 2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, and should be submitted via email to 
[email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word, Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information. Electronic copies of the original application, renewal 
request, and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), 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 below.

FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected 
Resources, NMFS (301) 427-8401.

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 promulgated or, if the taking is limited to harassment, an IHA is 
issued.
    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

[[Page 6093]]

availability of such species or stocks for taking for certain 
subsistence uses (referred to here as ``mitigation measures''). NMFS 
must also prescribe requirements pertaining to monitoring and reporting 
of such takings. The definition of key terms such as ``take,'' 
``harassment,'' and ``negligible impact'' can be found in the MMPA and 
the NMFS's implementing regulations (see 16 U.S.C. 1362; 50 CFR 
216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity, and requested 
public comment on a potential renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year 
renewal of an IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2); the activities as described in the 
Description of the Specified Activities and Anticipated Impacts section 
of the initial IHA issuance notice would not be completed by the time 
the initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA);
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take); and
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized; and
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any comments received on the potential renewal, along with 
relevant comments on the initial IHA, have been considered in the 
development of this proposed IHA renewal, and a summary of agency 
responses to applicable comments is included in this notice. NMFS will 
consider any additional public comments prior to making any final 
decision on the issuance of the requested renewal, and agency responses 
will be summarized in the final notice of our decision.

National Environmental Policy Act

    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations 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 determined that the issuance of the 
initial IHA qualified for categorical exclusion from further NEPA 
review. NMFS has preliminarily determined that the application of this 
categorical exclusion remains appropriate for this renewal IHA.

History of Request

    On February 28, 2023, NMFS issued an IHA to BPW to take marine 
mammals incidental to conducting marine site characterization surveys 
in coastal waters off of New York and New Jersey in the New York Bight, 
specifically within the BOEM Lease Area OCS-A 0537 and associated ECR 
area (88 FR 13783, March 6, 2023), effective from March 1, 2023 through 
February 29, 2024. On December 21, 2023, NMFS received an application 
for the renewal of that initial IHA. As described in the application 
for renewal IHA, the activities for which incidental take is requested 
consist of activities that are covered by the initial authorization but 
will not be completed prior to its expiration. As required, the 
applicant also provided a preliminary monitoring report which confirms 
that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted.

Description of the Specified Activities and Anticipated Impacts

    BPW's initial IHA included conducting marine site characterization 
surveys, including high-resolution geophysical (HRG) surveys, in 
coastal waters off of New Jersey and New York in the New York Bight, 
specifically within the BOEM Lease Area OCS-A 0537 and associated ECR 
area. Challenges and delays with procurement, mobilization, and 
downtime contributed to less survey being completed during the initial 
IHA period than anticipated.
    The surveys were designed to obtain data sufficient to meet BOEM 
guidelines for providing geophysical, geotechnical, and geohazard 
information for site assessment plan surveys and/or construction and 
operations plan development. The objective of the surveys was to 
support the site characterization, siting, and engineering design of 
offshore wind project facilities including wind turbine generators, 
offshore substations, and submarine cables within the Lease Area. At 
least two survey vessels would operate as part of the planned surveys 
with a maximum of two nearshore (<20 meters (m)) vessels and a maximum 
of two offshore (>=20 m) vessels operating concurrently.
    BPW is proposing to continue to conduct survey activities as per 
the initial IHA application up to approximately 17,008 kilometers (km) 
of trackline, which would be conducted over up to approximately 335 
days across multiple vessels (in the same manner as the initial IHA). 
This is a subset of the survey trackline included in the initial IHA. 
The initial survey plan included 13,268 km of trackline in the ECR 
survey area and 9,923 km in the Lease Area (total of 23,191 km) using 
the sparker for all survey activities as

[[Page 6094]]

the worst-case-scenario. Through the expiration of the initial IHA, BPW 
expects to survey 6,183 km of trackline, leaving 17,008 km remaining 
from the initial request (up to 10,299 km in the ECR survey area and 
6,709 km in the Lease Area).
    The potential impacts of BPW's proposed activity on marine mammals 
could involve acoustic stressors and are unchanged from the impacts 
described in the Notice of the proposed IHA (88 FR 2325, January 13, 
2023). Acoustic stressors include effects of the marine site 
characterization surveys. The effects of underwater disturbance from 
the BPW's proposed activities have the potential to result in Level B 
harassment of marine mammals in the specified geographic region.
    This proposed renewal IHA is for the remainder of work that will 
not be completed by the expiration of the initial IHA. The renewal IHA 
would authorize incidental take, by Level B harassment only (in the 
form of behavioral disturbance), of 15 species (16 stocks) of marine 
mammals for a subset of marine site characterization survey activities 
to be completed in 1 year, in the same area, using survey methods 
identical to those described in the initial IHA application. Therefore, 
the anticipated effects on marine mammals and the affected stocks also 
remain the same. All mitigation, monitoring, and reporting measures 
would remain exactly as described in the Federal Register notice of the 
issued initial IHA (88 FR 13783, March 6, 2023).

Detailed Description of the Activity

    A detailed description of the marine site characterization survey 
activities for which incidental take is proposed here may be found in 
the Federal Register notice of the proposed IHA (88 FR 2325, January 
13, 2023) for the initial authorization. The location and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the previous notices. The proposed 
renewal would be effective for a period not exceeding 1 year from the 
date of expiration of the initial IHA.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice of the proposed IHA for the initial 
authorization (88 FR 2325, January 13, 2023). NMFS has reviewed the 
finalized 2022 Stock Assessment Reports (SARs), which included updates 
to certain stock abundances since the initial IHA was issued, 
information on relevant Unusual Mortality Events, and other scientific 
literature. In August 2023 after the initial IHA was issued, NMFS 
released its final 2022 SARs, which updated the population estimate 
(Nbest) of North Atlantic right whales from 368 to 338 and 
annual mortality and serious injury increased from 8.1 to 31.2. This 
large increase in annual serious injury/mortality is a result of NMFS 
including undetected annual mortality and serious injury in the total 
annual serious injury/mortality, which had not been previously included 
in the SARs. The population estimate is slightly lower than the North 
Atlantic Right Whale Consortium's 2022 Report Card, which identifies 
the population estimate as 340 individuals (Pettis et al., 2023). The 
2022 SAR and NARWC estimates are based on sighting history through 
November 2020 (Hayes et al., 2023). In October 2023, NMFS released a 
technical report identifying that the North Atlantic right whale 
population size based on sighting history through 2022 was 356 whales, 
with a 95 percent credible interval ranging from 346 to 363 (Linden, 
2023). NMFS has determined that neither this nor any other new 
information affects which species or stocks have the potential to be 
affected or any other pertinent information in the Description of the 
Marine Mammals in the Area of Specified Activities contained in the 
supporting documents for the initial IHA.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered North 
Atlantic right whales from vessel collisions, which are a leading cause 
of the species' decline and a primary factor in an ongoing Unusual 
Mortality Event (87 FR 46921, August 1, 2022). Should a final vessel 
speed rule be issued and become effective during the effective period 
of this proposed Renewal IHA (or any other MMPA incidental take 
authorization), the authorization holder would be required to comply 
with any and all applicable requirements contained within the final 
rule. Specifically, where measures in any final vessel speed rule are 
more protective or restrictive than those in this or any other MMPA 
authorization, authorization holders would be required to comply with 
the requirements of the rule. Alternatively, where measures in this or 
any other MMPA authorization are more restrictive or protective than 
those in any final vessel speed rule, the measures in the MMPA 
authorization would remain in place. These changes would become 
effective immediately upon the effective date of any final vessel speed 
rule and would not require any further action on NMFS's part.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which an 
authorization of incidental take is proposed here may be found in the 
Notice of the Proposed IHA for the initial authorization (88 FR 2325, 
January 13, 2023). NMFS has reviewed the monitoring data from the 
initial IHA, recent draft SAR, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
there is no new information that affects our initial analysis of 
impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Notices of the 
Proposed and Final IHAs for the initial authorization (88 FR 2325, 
January 13, 2023; 88 FR 13783, March 6, 2023). Specifically, the source 
levels, days of operation, and marine mammal density/occurrence data 
applicable to this authorization remain unchanged from the previously 
issued IHA. Similarly, the stocks taken, methods of take, and types of 
take remain unchanged from the previously issued IHA. The number of 
takes proposed for authorization in this renewal IHA are a subset of 
the initial authorized takes that better represent the amount of 
activity BPW has left to complete. These estimated takes, which reflect 
the remaining survey days, are indicated below in table 1.

[[Page 6095]]



    Table 1--Proposed Number of Takes by Level B Harassment by Species and Stock and Percent of Take by Stock
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                                                                    Authorized      Population      Percent of
                           Common name                                 take          abundance      population
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North Atlantic right whale......................................              11             338             3.3
Fin whale.......................................................              63           6,802             0.9
Sei whale.......................................................              15           6,292             0.2
Minke whale.....................................................             149          21,968             0.7
Humpback whale..................................................              27           1,396             1.9
Sperm whale.....................................................               5           4,349             0.1
Atlantic white-sided dolphin....................................             316          93,233             0.3
Atlantic spotted dolphin........................................             162          39,921             0.4
Bottlenose dolphin (W.N. Atlantic Offshore).....................             204          62,851             0.3
Bottlenose dolphin (Northern Migratory Coastal).................             730           6,639            11.0
Long-finned pilot whale.........................................              50          39,215             0.1
Risso's dolphin.................................................              38          35,215             0.1
Common dolphin..................................................           3,456         172,947             2.0
Harbor porpoise.................................................             958          95,543             1.0
Gray seal.......................................................             861          27,300             3.2
Harbor seal.....................................................             861          61,366             1.4
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the Federal Register notice announcing the issuance of the 
initial IHA (88 FR 13783, March 6, 2023), and the discussion of the 
least practicable adverse impact included in that document and the 
Notice of the proposed IHA remains accurate (88 FR 2325, January 13, 
2023). The following measures are proposed for this renewal:
     Ramp-up: A ramp-up procedure would be used for geophysical 
survey equipment capable of adjusting energy levels at the start or re-
start of survey activities;
     Protected Species Observers: A minimum of one NMFS-
approved Protected Species Observer (PSO) must be on duty and 
conducting visual observations at all times during daylight hours 
(i.e., from 30 minutes prior to sunrise through 30 minutes following 
sunset). Two PSOs will be on watch during nighttime operations;
     Pre-Operation Clearance Protocols: Prior to initiating HRG 
survey activities, BPW would implement a 30-minute pre-operation 
clearance period. If any marine mammals are detected within the 
Exclusion Zones prior to or during ramp-up, the HRG equipment would be 
shut down (as described below);
     Shutdown Zones: If an HRG source is active and a marine 
mammal is observed within or entering a relevant shutdown zone, an 
immediate shutdown of the HRG survey equipment would be required. Note 
this shutdown requirement would be waived for certain genera of small 
delphinids and pinnipeds;
     Vessel strike avoidance measures: Separation distances for 
large whales (500 m North Atlantic right whales; 100 m for sperm whales 
and all other baleen whales; 50 m all other marine mammals); restricted 
vessel speeds and operational maneuvers; and
     Reporting: BPW will submit a marine mammal report within 
90 days following completion of the surveys.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (88 
FR 2325, January 13, 2023) and solicited public comments on both our 
proposal to issue the initial IHA for marine site characterization 
surveys and on the potential for a renewal IHA, should certain 
requirements be met. All public comments were addressed in the notice 
announcing the issuance of the initial IHA (88 FR 13783, March 6, 2023) 
and none of the comments specifically pertained to the potential 
renewal of the 2023 IHA.

Preliminary Determinations

    BPW's proposed activities consist of a subset of activities 
analyzed in the initial IHA. In analyzing the effects of the activities 
for the initial IHA, NMFS determined that BPW's activities would have a 
negligible impact on the affected species or stocks and that authorized 
take numbers of each species or stock were small relative to the 
relevant stocks (e.g., less than one-third the abundance of all 
stocks). The mitigation measures and monitoring and reporting 
requirements as described above are identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) the required mitigation measures will effect the least 
practicable adverse impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) BPW's activities will not have an unmitigable 
adverse impact on taking for subsistence purposes as no relevant 
subsistence uses of marine mammals are implicated by this action; and 
(5) appropriate monitoring and reporting requirements are included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take for endangered or threatened species.
    NMFS Office of Protected Resources has authorized the incidental 
take of four species of marine mammals which are listed under the ESA 
(the North Atlantic right, fin, sei, and sperm whale) and has 
determined that these activities fall within the scope of activities 
analyzed in GARFO's programmatic

[[Page 6096]]

consultation regarding geophysical surveys along the U.S. Atlantic 
coast in the three Atlantic Renewable Energy Regions (completed June 
29, 2021; revised September 2021). The proposed Renewal IHA provides no 
new information about the effects of the action, nor does it change the 
extent of effects of the action, or any other basis to require 
reinitiation of consultation with NMFS GARFO; therefore, the ESA 
consultation has been satisfied for the initial IHA and remains valid 
for the Renewal IHA.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to BPW for conducting marine site characterization 
surveys in coastal waters off of New York and New Jersey in the New 
York Bight, from March 1, 2024 through February 28, 2025, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed and final initial IHA can be 
found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment 
on our analyses, the proposed renewal IHA, and any other aspect of this 
notice. Please include with your comments any supporting data or 
literature citations to help inform our final decision on the request 
for MMPA authorization.

    Dated: January 25, 2024.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-01856 Filed 1-30-24; 8:45 am]
BILLING CODE 3510-22-P