Notice2024-01856
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the New York Bight
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Published
January 31, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 21 (Wednesday, January 31, 2024)</title>
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[Federal Register Volume 89, Number 21 (Wednesday, January 31, 2024)]
[Notices]
[Pages 6092-6096]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
<a href="/cdn-cgi/l/email-protection#1e574a4e30767f6c727f7d767b6c5e70717f7f30797168"><span class="__cf_email__" data-cfemail="e0a9b4b0ce8881928c8183888592a08e8f8181ce878f96">[email protected]</span></a>.
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 <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> 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: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. 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:
<bullet> 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
<bullet> 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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. 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
(N<INF>best</INF>) 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:
<bullet> 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;
<bullet> 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;
<bullet> 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);
<bullet> 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;
<bullet> 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
<bullet> 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 <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. 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
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