Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Invenergy Wind Offshore, LLC's Marine Site Characterization Surveys in the New York Bight, 68595-68600 [2024-19219]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 166 (Tuesday, August 27, 2024)]
[Notices]
[Pages 68595-68600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19219]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE143]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Invenergy Wind Offshore, LLC's 
Marine Site Characterization Surveys in the New York Bight

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

ACTION: Notice; issuance of renewal incidental harassment 
authorization.

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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 
Invenergy Wind Offshore, LLC (IWO) for the renewal of their 2023 IHA to 
take marine mammals incidental to marine site characterization surveys 
in waters off of New Jersey and New York in the New York Bight.

DATES: This authorization is effective from August 21, 2024 through 
July 30, 2025.

ADDRESSES: Electronic copies of the initial IHA application, Renewal 
IHA request, Renewal IHA, and supporting documents, including Federal 
Register notices of the initial proposed and final authorizations, the 
initial IHA, and the proposed IHA Renewal, 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: Austin Demarest, 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 
incidental harassment authorization 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 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 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: (a) 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
    (b) 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
    4. 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.

History of Request

    On July 19, 2023, NMFS issued the 2023 IHA (hereinafter, the 2023 
IHA is referred to as the ``initial IHA'' and the 2024 IHA is referred 
to as the ``Renewal IHA'') to IWO to take small numbers of marine 
mammals incidental to site characterization surveys off the coast of 
New York and New Jersey in the New

[[Page 68596]]

York Bight (88 FR 47846, July 25, 2023), effective from July 31, 2023 
through July 30, 2024. On May 3, 2024, NMFS received a request for the 
renewal of the initial IHA, which was deemed adequate and complete on 
May 24, 2024. As described in the application for renewal IHA, the 
specified activities for which incidental take is requested are 
identical to those included in the initial authorization. As required, 
IWO provided a preliminary monitoring report, which shows that it has 
implemented the required mitigation and monitoring measures and no 
impacts of a scale or nature not previously analyzed or authorized have 
occurred as a result of the activities conducted. The notice of the 
proposed renewal incidental harassment authorization was published for 
public comment on July 17, 2024 (89 FR 58124).

Description of the Specified Activity and Anticipated Impacts

    IWO plans to conduct an additional year of marine site 
characterization surveys, including high-resolution geophysical (HRG) 
surveys, in waters off the coast of New Jersey and New York 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 (OCS) Lease Area OCS-A 0542 
and the associated Export Cable Route (ECR) Area. Hereafter, both the 
areas are referred to as the Survey Area.
    The purpose of IWO's proposed surveys is to provide sufficient data 
to meet BOEM guidelines and support the development of offshore wind 
facilities in the Survey Area. Specifically, data collected would 
support site characterization, siting, and engineering design of 
offshore wind facilities including turbine generators, offshore 
substations, submarine cables and data necessary for project review 
requirements. IWO will have a maximum of three vessels surveying 
concurrently. Underwater sounds produced from sparkers and boomers 
during IWO's surveys has the potential to result in Level B harassment 
of 15 species (comprising 16 stocks) of marine mammals. The specified 
activities that may result in take of marine mammals are identical in 
scope, effort, potential harassment to marine mammals, and mitigation 
measures as the Initial IHA (88 FR 47846).

Detailed Description of the Activity

    A detailed description of the surveys for which incidental take is 
proposed here may be found in the Federal Register notice of the 
initial Proposed IHA (88 FR 32735, May 22, 2023). The location, 
duration, and nature of the activities, including the types of 
equipment planned for use, are identical to those described in the 
notice referenced above. The IHA is effective from August 21, 2024 
through July 30, 2025.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to IWO was 
published in the Federal Register on July 17, 2024 (89 FR 58124). That 
notice described, in detail, or referenced descriptions of IWO's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated number and manner of take, and proposed mitigation, 
monitoring and reporting measures. NMFS received a total of five public 
comment letters. Four of these comment letters were from private 
citizens and one was from a non-governmental organization (Clean Ocean 
Action (COA)). The public comments expressed general opposition to the 
underlying associated activities. These comments do not raise 
significant points for NMFS to consider or are out of the scope of this 
activity.
    We reiterate here that NMFS' proposed action concerns only the 
authorization of marine mammal take incidental to the planned surveys--
NMFS' authority under the MMPA does not extend to the surveys 
themselves or to wind energy development more generally. The public 
comments requested that NMFS not issue any IHAs related to wind energy 
development and/or expressed opposition for wind energy development 
generally. We do not specifically address these comments because they 
are out of scope of the proposed Renewal IHA (89 FR 58124, July 17, 
2024) or do not raise significant points for NMFS to consider.
    All substantive comments and NMFS' responses are provided below, 
and all comment letters are available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-invenergy-wind-offshore-llcs-site-characterization-surveys-new.
    Comment 1: Several commenters expressed a concern that the proposed 
IHA and its associated specified activities would lead to mortality 
(death) of marine mammals.
    Response: The public commenters did not provide any scientific 
evidence to support their claim that the proposed IHA and specific 
activities would lead to mortality of marine mammal. NMFS emphasizes 
that there is no credible scientific evidence available suggesting that 
mortality and/or serious injury is a potential outcome of the planned 
survey activity. NMFS notes there has never been a report of any 
serious injuries or mortalities of a marine mammal associated with site 
characterization surveys.
    The best available science indicates that Level B harassment (i.e., 
disruption of behavioral patterns may occur as a result of IWO's 
specified activities. We also refer to the Greater Atlantic Regional 
Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds 
that these survey activities are in general not likely to adversely 
affect Endangered Species Act (ESA)-listed marine mammal species. That 
document is found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation.
    Comment 2: COA stated that marine mammal species experiencing 
Unusual Mortality Events (UMEs), such as North Atlantic right whales, 
humpback whales, and minke whales should be protected more carefully.
    Response: NMFS appreciates COAs concern for marine mammals 
experiencing UMEs. However, COA did not suggest any additional 
mitigation measures that NMFS should consider incorporating into the 
IHA.
    Comment 3: COA states the use of a Categorical Exclusion (CE) under 
National Environmental Policy Act (NEPA) should not apply and further 
analysis should be conducted while considering cumulative effects of 
the proposed IHA relative to other authorized takes in the area, 
including takes under the 2023 IHA.
    Response: NMFS disagrees. A CE is a category of actions that an 
agency has determined does not individually or cumulatively have a 
significant effect on the quality of the human environment and is 
appropriately applied for such categories of actions so long as there 
are no extraordinary circumstances present that would indicate that the 
effects of the action may be significant. Extraordinary circumstances 
are situations for which NOAA has determined further NEPA analysis is 
required because they are circumstances in which a normally excluded 
action may have significant effects. A determination of whether an 
action that is normally excluded requires additional evaluation because 
of extraordinary circumstances focuses on the action's potential 
effects and considers the significance of those

[[Page 68597]]

effects in terms of both context (consideration of the affected region, 
interests, and resources) and intensity (severity of impacts). 
Potential extraordinary circumstances relevant to this action include: 
(1) adverse effects on species or habitats protected by the MMPA that 
are not negligible; (2) highly controversial environmental effects; (3) 
environmental effects that are uncertain, unique, or unknown; and (4) 
the potential for significant cumulative impacts when the proposed 
action is combined with other past, present, and reasonably foreseeable 
future actions.
    The relevant NOAA CE associated with issuance of incidental take 
authorizations is CE B4, ``Issuance of incidental harassment 
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the 
incidental, but not intentional, take by harassment of marine mammals 
during specified activities and for which no serious injury or 
mortality is anticipated.'' This action falls within CE B4. In 
determining whether a CE is appropriate for a given incidental take 
authorization, NMFS considers the applicant's specified activity and 
the potential extent and magnitude of takes of marine mammals 
associated with that activity along with the extraordinary 
circumstances listed in the Companion Manual for NOAA Administrative 
Order (NAO) 216-6A and summarized above.
    The evaluation of whether extraordinary circumstances (if present) 
have the potential for significant environmental effects is limited to 
the decision NMFS is responsible for, which is issuance of the 
incidental take authorization. Potential effects of NMFS' action are 
limited to those that would occur due to the authorization of 
incidental take of marine mammals. NMFS prepared numerous EAs analyzing 
the environmental impacts of the categories of activities encompassed 
by CE B4, which resulted in Findings of No Significant Impacts (FONSIs) 
and, in particular, numerous EAs prepared in support of issuance of 
IHAs related to similar survey actions are part of NMFS' administrative 
record supporting CE B4. These EAs demonstrate the issuance of a given 
incidental harassment authorization does not affect other aspects of 
the human environment because the action only affects the marine 
mammals that are the subject of the incidental harassment 
authorization.
    Specifically for this action, NMFS independently evaluated the use 
of the CE for issuance of IWO's IHA, which included consideration of 
extraordinary circumstances. As part of that analysis, NMFS considered 
whether this IHA issuance would result in cumulative impacts that could 
be significant. In particular, the issuance of an IHA to IWO is 
expected to result in minor, short-term behavioral effects on marine 
mammal species due to exposure to underwater sound from site 
characterization survey activities. Behavioral disturbance is possible 
to occur intermittently in the vicinity of IWO's survey area during the 
1-year timeframe. Level B harassment will be reduced through use of 
mitigation measures described herein. Additionally, as discussed 
elsewhere, NMFS has determined that IWO's activities fall within the 
scope of activities analyzed in GARFO's programmatic consultation 
regarding geophysical surveys along the U.S. Atlantic coast in the 
three Atlantic Renewable Energy Regions (completed June 29, 2021; 
revised September 2021), which concluded surveys such as those planned 
by IWO are not likely to adversely affect ESA-listed species or 
adversely modify or destroy critical habitat. Accordingly, NMFS has 
determined that the issuance of this IHA will result in no more than 
negligible (as that term is defined by the Companion Manual for NAO 
216-6A) adverse effects on species protected by the ESA and the MMPA.
    Further, the issuance of this IHA will not result in highly 
controversial environmental effects or result in environmental effects 
that are uncertain, unique, or unknown because numerous entities have 
been engaged in site characterization surveys that result in Level B 
harassment of marine mammals in the United States. This type of 
activity is well documented; prior authorizations and analysis 
demonstrates issuance of an IHA for this type of action only affects 
the marine mammals that are the subject of the specific authorization 
and, thus, no potential for significant cumulative impacts are 
expected, regardless of past, present, or reasonably foreseeable 
actions, even though the impacts of the action may not be significant 
by itself. Based on this evaluation, we concluded that the issuance of 
the IHA qualifies to be categorically excluded from further NEPA 
review.
    Comment 4: COA states there is considerable uncertainty regarding 
the effect of preconstruction surveying on marine mammals.
    Response: NMFS disagrees. NMFS has issued IHAs for marine site 
characterization surveys and HRG surveys since 2014 and marine mammal 
behavioral responses, or lack thereof, from these activities are well 
documented. Marine mammal monitoring reports from authorized surveys 
and the best available science indicates that only Level B harassment 
(i.e.,temporary disruption of behavioral patterns) may occur. No 
mortality or serious injury is expected to occur as a result of IWOs 
planned surveys, and there is no scientific evidence indicating that 
any marine mammal could experience these as a direct result of noise 
from geophysical survey activity.
    Comment 5: COA asserted that NMFS should reject IWOs application 
until the cumulative impacts of every incidental take authorization on 
marine mammals are considered. COA also stated that NMFS must fully 
consider the discrete effects of each activity and the cumulative 
effects of the suite of approved, proposed, and potential offshore wind 
activities on marine mammals and ensure that the cumulative effects are 
not excessive before issuing or renewing an IHA.
    Response: NMFS is required to authorize the requested incidental 
take if it finds the incidental take by harassment of small numbers of 
marine mammals by U.S. citizens ``while engaging in that [specified] 
activity'' within a specified geographic region will have a negligible 
impact on such species or stock and where appropriate, will not have an 
unmitigable adverse impact on the availability of such species or stock 
for subsistence uses (16 U.S.C. 1371(a)(5)(D)). Negligible impact is 
defined 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). Neither the MMPA nor 
NMFS' implementing regulations require consideration of other unrelated 
activities and their impacts on marine mammal populations in the 
negligible impact determination. Additionally, NMFS' implementing 
regulations require applicants to include in their request a detailed 
description of the specified activity or class of activities that can 
be expected to result in incidental taking of marine mammals (50 CFR 
216.104(a)(1)). Thus, the ``specified activity'' for which incidental 
take coverage is being sought under section 101(a)(5)(D) is generally 
defined and described by the applicant. Consistent with the preamble of 
NMFS' implementing regulations (54 FR 40338, September 29, 1989), the 
impacts from other past and ongoing anthropogenic activities are 
factored into the baseline, which is used in the negligible impact 
analysis. Here, NMFS has factored into its negligible impact analysis 
the impacts of other past and ongoing anthropogenic activities via 
their

[[Page 68598]]

impacts on the baseline (e.g., as reflected in the density, 
distribution and status of the species, population size and growth 
rate, and other relevant stressors).
    The preamble of NMFS' implementing regulations (54 FR 40338, 
September 29, 1989) also addresses cumulative effects from future, 
unrelated activities. Such effects are not considered in making the 
negligible impact determination under MMPA section 101(a)(5). NMFS 
considers (1) cumulative effects that are reasonably foreseeable when 
preparing a NEPA analysis, and (2) reasonably foreseeable cumulative 
effects under section 7 of the ESA for listed species, as appropriate. 
Accordingly, NMFS has written Environmental Assessments (EA) that 
addressed cumulative impacts related to substantially similar 
activities in similar locations (e.g., the 2019 Avangrid EA for survey 
activities offshore North Carolina and Virginia; the 2017 Ocean Wind, 
LLC EA for site characterization surveys off New Jersey; and the 2018 
Deepwater Wind EA for survey activities offshore Delaware, 
Massachusetts, and Rhode Island). Cumulative impacts regarding issuance 
of IHAs for site characterization survey activities such as those 
planned by IWO have been adequately addressed under NEPA in prior 
environmental analyses that support NMFS' determination that this 
action is appropriately categorically excluded from further NEPA 
analysis. NMFS independently evaluated the use of a CE for issuance of 
IWO's IHA, which included consideration of extraordinary circumstances.
    Separately, the cumulative effects of substantially similar 
activities in the northwest Atlantic Ocean have been analyzed in the 
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion 
(BiOp) for BOEM Lease and Site Assessment Rhode Island, Massachusetts, 
New York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities 
include those for which NMFS issued previous IHAs (82 FR 31562, July 7, 
2017; 83 FR 28808, June 21, 2018; 83 FR 36539, July 30, 2018; and 86 FR 
26465, May 10, 2021), which are similar to those planned by IWO under 
this current IHA request. This BiOp determined that NMFS' issuance of 
IHAs for site characterization survey activities associated with 
leasing, individually and cumulatively, are not likely to adversely 
affect listed marine mammals. NMFS notes that, while issuance of this 
IHA is covered under a different consultation, this BiOp remains valid.
    Comment 6: A commenter stated that Letters of Authorizations (LOA) 
would be more appropriate than IHAs and IHA renewals when time to 
complete proposed activities are unclear.
    Response: Under section 101(a)(5)(D)(i) of the MMPA, the Secretary 
of Commerce, as delegated to NMFS, shall authorize the requested 
incidental, but not intentional, taking by harassment of small numbers 
of marine mammals by the requestor while engaged in the specified 
activities if NMFS finds the harassment (1) will have a negligible 
impact of such species or stock and (2) will not have an unmitigable 
adverse impact on the availability of such stocks for the taking for 
subsistence uses, if applicable. IWO requested an IHA for specified 
activities that could reasonably be completed within 1 year, and NMFS 
has made the required findings.

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 IHAs (88 FR 32735, May 22, 
2023) for the initial IHA. NMFS has reviewed the monitoring data from 
the initial IHA, the draft 2023 Stock Assessment Reports (SARs), which 
included updates to certain stock abundances since the initial IHA was 
issued, information on relevant UME, and other scientific literature. 
The draft 2023 SAR updated the population estimate (Nbest) 
of North Atlantic right whales from 338 to 340 and annual mortality and 
serious injury from 31.2 to 27.2. The updated population estimate in 
the draft 2023 SAR is based upon sighting history through December 2021 
(89 FR 5495, January 29, 2024). Total annual average observed North 
Atlantic right whale mortality during the period 2017-2021 was 7.1 
animals and annual average observed fishery mortality was 4.6 animals, 
however, estimates of 27.2 total mortality and 17.6 fishery mortality 
account for undetected mortality and serious injury (89 FR 5495, 
January 29, 2024). 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).
    The population estimates (Nbest) also increased for the 
North Atlantic stock of Sperm whales, the Western North Atlantic 
Offshore stock of Common bottlenose dolphins, Western North Atlantic 
stocks of Risso's dolphins, Atlantic spotted dolphins, and Gray seals. 
However, abundance estimates slightly decreased for the Western North 
Atlantic stocks of Common dolphins and Harbor Porpoises. NMFS has 
determined there is no new information that affects which species or 
stocks have the potential to be affected or the pertinent information 
in the Description of the Marine Mammals in the Area of Specified 
Activities contained in the supporting documents for the initial IHA.

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 IHA is 
proposed here may be found in the notice of the proposed IHA (88 FR 
32735, May 22, 2023) for the initial IHA. NMFS has reviewed the 
monitoring data from the initial IHA, recent draft SARs, information on 
relevant UME's, 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. Therefore, that 
information is not repeated here; please refer to the Federal Register 
notice (88 FR 32735, May 22, 2023).

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
notice of the Final IHA (88 FR 47846, July 25, 2023) for the initial 
IHA. Specifically, the source levels, days of operation, and marine 
mammal density/occurrence data applicable to this authorization remain 
unchanged from the initial IHA. Similarly, the stocks taken, methods of 
take, and type of take remain unchanged from the initial IHA, as do the 
number of takes, which are indicated below in table 1.

[[Page 68599]]



                 Table 1--Estimated Take Number and Total Authorized Take by Level B Harassment
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                                                      Density
             Species                Ensonified       (animals/    Estimated take    Total take      Percent of
                                   area (km\2\)       km\2\)                        authorized       abundance
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......           3,615        0.001748               6               6        \A\ 1.76
Humpback whale..................           3,615        0.003657              13              13            0.93
Fin whale.......................           3,615        0.004856              18              18            0.26
Sei whale.......................           3,615        0.001813               7               7            0.11
Minke whale.....................           3,615        0.025476              92              92            0.42
Sperm whale.....................           3,615        0.000371               1               2        \A\ 0.03
Risso's dolphin.................           3,615        0.002841              10              10        \A\ 0.02
Long-finned pilot whale.........           3,615        0.003363              12              15            0.03
Atlantic white-sided dolphin....           3,615        0.027836             101             101            0.11
Common dolphin..................           3,615        0.245719             888             888        \A\ 0.95
Atlantic spotted dolphin........           3,615        0.011683              42              42        \A\ 0.13
Harbor porpoise.................           3,615        0.262904             950             950        \A\ 1.11
Common bottlenose dolphin                  3,164        0.193127             611             611        \A\ 0.95
 (Offshore Stock) \B\...........
Common bottlenose dolphin                    452        1.758553             795             795           11.97
 (Northern Migratory Coastal
 Stock) \C\.....................
Gray seal.......................           3,615    \D\ 0.262904             950             950    \A\ \E\ 0.26
Harbor seal.....................           3,615    \D\ 0.262904             950             950            1.55
----------------------------------------------------------------------------------------------------------------
Note: Take request based on average group size using sightings data from (CETAP, 1982, Palka et al., 2017, Palka
  et al., 2021) (see Attachment 3 of the application for the initial IHA).
\A\ Based on the 2023 draft marine mammal stock assessment reports (SAR).
\B\ The ensonified area for the offshore stock is for greater than 20 m water depth includes all the lease area
  and portions of the ECR.
\C\ The ensonified area for the migratory coastal stock is only the areas of less than 20 m water depth (found
  only in portions of the ECR).
\D\ These each represent 50 percent of a generic seal density value.
\E\ This abundance estimate is based on the total stock abundance (including animals in Canada). The NMFS stock
  abundance estimate for U.S. population is 27,911.

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in the IHA are identical to those included in the Federal 
Register notice announcing the issuance of the initial IHA (88 FR 
47846, July 25, 2023) and the discussion of the least practicable 
adverse impact determination included in that document remains 
applicable and accurate. The following measures required in this 
renewal IHA:
     Protected Species Observers (PSO): A minimum of one visual 
PSO must be on duty on each source vessel and conducting visual 
observations at all times during daylight hours (i.e., from 30 minutes 
(min) prior to sunrise through 30 min following sunset). A minimum of 
two PSOs must be on duty on each source vessel during nighttime hours;
     Pre-Start Clearance Protocols: Prior to activating sparker 
systems, IWO must implement a 30-minute pre-start clearance observation 
period. If any marine mammals are detected within the shutdown zones 
prior to or during ramp-up, the sparker system equipment must be 
shutdown (as described above). Pre-start clearance is waived for 
certain genera of small delphinids and pinnipeds;
     Ramp-up: A ramp-up procedure must be used for the 
activation of sparker systems by gradually increasing source levels at 
the start or re-start of survey activities (when technically feasible);
     Shutdown Zones: If a sparker system is active and a marine 
mammal is observed within or entering a relevant shutdown zone, an 
immediate shutdown of the sparker system equipment is required. 
Shutdown requirements are waived for certain genera of small delphinids 
and pinnipeds;
     Vessel strike avoidance measures: Minimum separation 
distances must be maintained for marine mammals (500 m for North 
Atlantic right whales, baleen whales (except humpback and minke), sperm 
whales, and unidentified large whales; 100 m for humpback and minke 
whales; 50 m for all other marine mammals); restricted vessel speeds 
and operational maneuvers; and
     Reporting: IWO must submit a marine mammal monitoring 
report within 90 days of completion of the surveys.

Determinations

    NMFS is authorizing the incidental take of small numbers of marine 
mammals from specified activities identical to those analyzed in the 
initial IHA and is requiring identical mitigation, monitoring, and 
reporting measures as those specified in the initial IHA. The number of 
takes by Level B harassment authorized is equal to that authorized in 
the initial IHA. In the initial IHA, NMFS determined that IWO's 
specified activities would have a negligible impact on the affected 
species and/or stocks and the authorized take for each stock would be 
small relative to individual stock abundance (less than one third).
    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. This includes consideration of the estimated abundance of 
seven stocks decreasing/increasing slightly. Specifically, NMFS is 
authorizing six takes of North Atlantic right whales by Level B 
harassment only, and the impacts resulting from the project's 
activities are neither reasonably expected nor reasonably likely to 
adversely affect the stock through effects on annual rates of 
recruitment or survival. Additionally, approximately 1.76 percent of 
the stock abundance is authorized for take by Level B harassment.
    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 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) IWO's activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no

[[Page 68600]]

relevant subsistence uses of marine mammals are implicated by this 
action, and; (5) appropriate monitoring and reporting requirements are 
included.

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 to be categorically excluded from further NEPA 
review. NMFS has determined that the application of this categorical 
exclusion remains appropriate for this renewal IHA.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (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.
    NMFS' Office of Protected Resources has authorized take of four 
species of marine mammals that are listed under the ESA (i.e., North 
Atlantic Right Whale, fin whale, sei whale, and sperm whale) and has 
determined these activities fall within the scope of activities 
analyzed in the NMFS GARFO programmatic 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 Renewal IHA neither provides new information about the 
effects of the action nor 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.

Renewal IHA

    NMFS has issued a renewal IHA to IWO for conducting marine site 
characterization with HRG surveys off the coast of New York and New 
Jersey in the New York Bight in BOEM Lease Area OCS-A 0542 and the 
associated Export ECR Area from August 21, 2024 through July 30, 2025.

    Dated: August 22, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-19219 Filed 8-26-24; 8:45 am]
BILLING CODE 3510-22-P