Notice2024-17454
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off New York and New Jersey in the New York Bight
Primary source
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Published
August 7, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from Attentive Energy, LLC (Attentive Energy), a company registered in Delaware, for the renewal of their previously issued incidental harassment authorization (IHA) (hereafter, 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 0538 and associated export cable route (ECR) area. Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing the initial 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 152 (Wednesday, August 7, 2024)</title>
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[Federal Register Volume 89, Number 152 (Wednesday, August 7, 2024)]
[Notices]
[Pages 64414-64420]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-17454]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE026]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off New York and New Jersey 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 Attentive Energy, LLC (Attentive
Energy), a company registered in Delaware, for the renewal of their
previously issued incidental harassment authorization (IHA) (hereafter,
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 0538 and associated export cable route (ECR) area. Pursuant
to the Marine Mammal Protection Act (MMPA), prior to issuing the
initial 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 August
22, 2024.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources, NMFS,
and should be submitted via email to <a href="/cdn-cgi/l/email-protection#b5fce1e59be5dac1d9dad6def5dbdad4d49bd2dac3"><span class="__cf_email__" data-cfemail="d49d8084fa84bba0b8bbb7bf94babbb5b5fab3bba2">[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/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0">https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0</a>. In case of problems accessing these documents, please call
the contact listed below.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, 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 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 1 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.
3. Upon review of the request for renewal, the status of the
affected
[[Page 64415]]
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
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the renewal of an IHA) with
respect to potential impacts on the human environment. 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. We will
review all comments submitted in response to this notice prior to
concluding our NEPA process or making a final decision on the request
to renew the IHA.
History of Request
On June 20, 2023, NMFS issued an IHA to Attentive Energy 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 region, specifically within the BOEM Lease Area OCS-A-0538
and associated ECR area (88 FR 41888, June 28, 2023), effective from
June 20, 2023, through June 19, 2024. On May 24, 2024, 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 were analyzed for the initial
2023 authorization, but would 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
Under the initial IHA, Attentive Energy planned to conduct 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 0538 and
associated ECR areas. 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 geo-hazard
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); <65.6 feet (ft))
vessels and a maximum of two offshore (>=20 m (>=65.6 ft)) vessels
operating concurrently.
Attentive Energy is proposing to continue to conduct these survey
activities, as per the initial IHA application, up to approximately
6,936 kilometers (km; 4,309.8 miles (mi)) of trackline. This is a
subset of the survey trackline included in the initial IHA; the initial
survey plan included 21,745 km (13,511.72 mi) across the entire project
area (maximum-case scenario), which was split up by approximately
14,025 km (8,714.7 mi) in the Lease Area and 7,720 km (4,797 mi) in the
ECR area. We note here that the Project Area is minimally expanded
(primarily to the south) in the current survey plan as compared with
the survey plan associated with the initial IHA (see figure 1);
however, per discussions with Attentive Energy, this expanded area will
not result in the need to survey additional tracklines. NMFS has
determined that this slight change to the survey area constitutes a
minor change that does not affect the previous analyses, mitigation and
monitoring requirements, or take estimates.
BILLING CODE 3510-22-P
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[GRAPHIC] [TIFF OMITTED] TN07AU24.042
BILLING CODE 3510-22-C
The survey effort in the proposed project would be conducted over
up to approximately 80 days across two vessels (in the same manner as
the initial IHA). The survey effort proposed for this renewal IHA
conservatively assumes that sparker acoustic sources, which have the
largest estimated Level B harassment area, would be used exclusively.
In reality, other sources with smaller estimated harassment areas would
be used during some proportion of survey effort.
The potential impacts of Attentive Energy's proposed activity on
marine mammals would involve acoustic stressors and are unchanged from
the impacts described in the Federal Register notice for the proposed
IHA (88 FR 41888, June 28, 2023). Acoustic stressors include effects of
the marine site characterization surveys. Underwater disturbances from
Attentive Energy's proposed activities has the
[[Page 64417]]
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 was not
completed by the expiration of the initial IHA. This proposed renewal
IHA would authorize incidental take, by Level B harassment only, of 15
species (16 stocks) of marine mammals for a subset of the initially
planned marine site characterization survey activities to be completed
in approximately 1 year, in a substantially similar area, and using the
same survey methods and acoustic sources 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 41888,
June 28, 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 41888, June 28,
2023). The location and nature of these activities, including the types
of equipment planned for use, are nearly identical to those described
in the previous notice (as referenced in the request from Attentive
Energy, available at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0">https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0</a>). The proposed renewal would be effective for a period not
exceeding 1 year from the date of the expiration of the initial IHA.
The only change to this project would be the aforementioned slight
expansion of the survey area to the south of the initial project area,
which consists of additional potential ECRs (refer back to figure 1).
However, as described above, Attentive Energy intends to maintain the
same amount of remaining trackline, using the same number of vessels,
and using the same acoustic sources as previously analyzed (i.e.,
boomers and sparkers).
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 24553, April 21, 2023). Since the publication of
the final Federal Register notice (88 FR 41888, June 28, 2023), NMFS
has reviewed the monitoring data from the initial IHA, the draft 2023
SARs, which included updates to certain stock abundances since the
initial IHA was issued, information on relevant unusual mortality
events (UME), and other scientific literature. The draft 2023 SAR
updated the population estimate (N<INF>best</INF>) 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 draft 2023 SARs include updates for additional marine mammal
species and stocks (i.e., North Atlantic right whale, fin whale, sei
whale, minke whale, sperm whale, Atlantic spotted dolphin, Atlantic
white-sided dolphin, bottlenose dolphin (Western North Atlantic--
Offshore stock), common dolphin, long-finned pilot whales, Risso's
dolphin, harbor porpoise, and gray seal), which are specifically
included in table 1 below. For species for which there has been no
change between the finalization of the final 2022 SARs to the release
of the draft 2023 SARs, NMFS has noted that below.
Table 1--Species and Stocks a Likely Impacted by the Proposed Specified Activities
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\b\ abundance survey) \c\ SI \d\
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Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Balaenidae:
North Atlantic right whale \e\. Eubalaena glacialis... Western Atlantic...... E, D, Y 340 (0, 337, 2021).... 0.7 \f\ 27.2
Family Balaenopteridae (rorquals):
Fin whale...................... Balaenoptera physalus. Western North Atlantic E, D, Y 6,802 (0.24, 5,573, 11 2.05
2021).
Humpback whale................. Megaptera novaeangliae Gulf of Maine......... ................. No changes............
Minke whale.................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 9.4
acutorostrata. Coastal. 2021).
Sei whale.......................... Balaenoptera borealis. Nova Scotia........... E, D, Y 6,292 (1.02, 3,098, 6.2 0.6
2021).
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Physeteridae:
Sperm whale.................... Physeter macrocephalus North Atlantic........ E, D, Y 5,895 (0.29, 4,639, 9.28 0.2
2021).
Family Delphinidae:
Atlantic spotted dolphin....... Stenella frontalis.... Western North Atlantic -, -, N 31,506 (0.28, 25,042, 250 0
2021).
Atlantic white-sided dolphin... Lagenorhynchus acutus. Western North Atlantic -, -, N 93,233 (0.71, 54,443, 544 28
2021).
Bottlenose dolphin............. Tursiops truncatus.... Western North -, -, N 64,587 (0.24, 52,801, 507 28
Atlantic--Offshore 2021).
\f\.
Northern Migratory ................. No changes............
Coastal.
Common dolphin................. Delphinus delphis..... Western North Atlantic -, -, N 93,100 (0.56, 59,897, 1,452 414
2021).
[[Page 64418]]
Long-finned pilot whale \g\.... Globicephala melas.... Western North Atlantic -, -, N 39,215 (0.30, 30,627, 306 5.7
2021).
Risso's dolphin................ Grampus griseus....... Western North Atlantic -, -, N 44,067 (0.19, 30,662, 307 18
2021).
Family Phocoenidae (porpoises)
Harbor porpoise................ Phocoena phocoena..... Gulf of Maine/Bay of -, -, N 85,765 (0.53, 56,420, 649 145
Fundy. 2021).
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Order Carnivora--Superfamily Pinnipedia
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Family Phocidae (earless seals):
Gray seal \h\.................. Halichoerus grypus.... Western North Atlantic -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harbor seal.................... Phoca vitulina........ Western North Atlantic ................. No changes............
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\a\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies</a>).
\b\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\c\ NMFS' marine mammal stock assessment reports can be found online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\d\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\e\ The current SAR includes an estimated population (Nbest = 340) based on sighting history through December 2021 (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>). 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).
\f\ Estimates may include sightings of the coastal form.
\g\ Key uncertainties exist in the population size estimate for this species, including uncertain separation between short-finned and long-finned pilot
whales, small negative bias due to lack of abundance estimate in the region between US and the Newfoundland/Labrador survey area, and uncertainty due
to unknown precision and accuracy of the availability bias correction factor that was applied.
\h\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 394,311. The annual M/SI value given is for the total stock.
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.
Based on the information presented above, 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 proposed (88 FR 24553, April 21, 2023) and final (88 FR 41888,
June 28, 2023) Federal Register notices.
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
Federal Register notice for the proposed IHA for the initial
authorization (88 FR 24553, April 21, 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 Federal Register
notices of the proposed (88 FR 24553, April 21, 2023) and final (88 FR
41888, June 28, 2023) IHA for the initial authorization. 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 that Attentive Energy has left to complete. The
percentage of trackline remaining, for most stocks, is approximately 32
percent. The most variation in effort exists for both the Migratory
Coastal and Offshore stocks of bottlenose dolphins as the estimated
trackline remaining is based on the estimated overlapping
[[Page 64419]]
trackline with the cutoffs for the 20-m (65.6-ft) isobath (i.e.>20-m
(>65.6-ft) isobath for the Offshore stock, <20-m (<65.6-ft) isobath for
the Migratory Coastal stock). All of these estimated takes, which
reflect the estimated remaining tracklines and survey days, are
indicated below in table 2.
Table 2--Proposed Number of Takes by Level B Harassment by Species and Stocks, and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Takes proposed
Percentage of for Percentage of
Population trackline authorization population
Common name abundance remaining in based on proposed to be
relevant remaining taken
habitat trackline
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................... 340 32 4 1.18
Fin whale....................................... 6,802 32 12 0.18
Humpback whale.................................. 1,396 32 8 0.57
Minke whale..................................... 21,968 32 57 0.26
Sei whale....................................... 6,292 32 4 0.06
Sperm whale..................................... 5,895 32 1 0.02
Atlantic spotted dolphin........................ 31,506 32 28 0.09
Atlantic white-sided dolphin.................... 93,233 32 66 0.07
Bottlenose dolphin--Western North Atlantic 64,587 28 489 0.76
Offshore.......................................
Bottlenose dolphin--Northern Migratory Coastal.. 6,639 93 362 5.45
Common dolphin.................................. 93,100 32 658 0.71
Long-finned pilot whale......................... 39,215 32 7 0.02
Risso's dolphin................................. 44,067 32 7 0.02
Harbor porpoise................................. 85,765 32 350 0.41
Gray seal....................................... 27,911 32 511 1.83
Harbor seal..................................... 61,336 32 511 0.83
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Here, NMFS have utilized the draft 2023 SARs, rather than the final
2022 SARs, as the draft 2023 SARs represent the best available science
and the most recently available data.
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 41888, June 28, 2023), and the discussion of the
least practicable adverse impact included in that document and the
Federal Register notice of the proposed IHA remains accurate (88 FR
24553, April 21, 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 (i.e., any acoustic
source with a non-binary switch) at the start or re-start of survey
activities;
<bullet> Protected Species Observers (PSOs): A minimum of one NMFS-
approved 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 would be on duty during
nighttime operations.
<bullet> Pre-Operation Clearance Protocols: Prior to initiating HRG
survey activities, Attentive Energy would be required to 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. We
note that this shutdown requirement would be waived for certain genera
of small delphinids (i.e., Delphinus, Lagenorhynchus, Stenella, or
Tursiops) and pinnipeds;
<bullet> Vessel Strike Avoidance Measures: 500 m (1,640 ft)
separation distances for North Atlantic right whales and other large
ESA-listed whales (i.e., fin whale, sei whale, and sperm whale), 100 m
(328 ft) for other non-ESA listed baleen whales (i.e., minke whale and
humpback whale), and 50 m (164 ft) for all other marine mammals); as
well as restricted vessel speeds and operational maneuvers; and
<bullet> Reporting: Attentive Energy would submit a marine mammal
report within 90 days following their completion of the surveys.
Comments and Responses
NMFS published a notice of a proposed IHA (88 FR 24553, April 21,
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 41888, June 28, 2023) and none of the comments
specifically pertained to the potential renewal of the 2023 IHA.
Preliminary Determinations
Attentive Energy'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 Attentive Energy'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. This includes consideration of the draft
2023 SAR estimated abundance of the North Atlantic right whale stock
and other stocks, as shown above in table 1. Specifically, NMFS is
proposing to authorize 4 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
[[Page 64420]]
adversely affect the stock through effects on annual rates of
recruitment or survival. Additionally, only about 1.2 percent of this
stock's abundance is proposed 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 affect the least practicable adverse
impact on marine mammal species or stocks and their habitat; (2) the
proposed takes for authorization would have a negligible impact on the
affected marine mammal species or stocks; (3) the takes proposed for
authorization represent small numbers of marine mammals relative to the
affected stock abundances; (4) Attentive Energy'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. This includes consideration of the estimated abundance of
13 stock(s) decreasing or increasing slightly, specific to each stock.
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 proposed to authorize 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 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 present any other basis to require re-initiation 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 Attentive Energy for conducting marine site
characterization surveys in coastal waters off of New York and New
Jersey in the New York Bight, from the date of issuance through June
19, 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/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0">https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0</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: August 2, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-17454 Filed 8-6-24; 8:45 am]
BILLING CODE 3510-22-P
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