[Federal Register Volume 89, Number 42 (Friday, March 1, 2024)]
[Notices]
[Pages 15165-15168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04391]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD741]


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; 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 a renewal incidental harassment authorization 
(IHA) to Bluepoint Wind, LLC, (BPW) to incidentally harass 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.

DATES: This renewal IHA is valid from March 1, 2024, through February 
28, 2025.

ADDRESSES: Electronic copies of the original application, renewal 
request, and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, see FOR FURTHER 
INFORMATION CONTACT section.

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

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (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 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 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:

[[Page 15166]]

    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     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 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 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, 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 
(available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new) 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. The notice of the proposed 
renewal incidental harassment authorization was published for public 
comment on January 31, 2024 (89 FR 6092).

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 effort 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 planning 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 a conservative operational 
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 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 
activities have the potential to result in Level B harassment of marine 
mammals in the specified geographic region.
    This 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 authorized 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 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 take is authorized, 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

[[Page 15167]]

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

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
authorized here 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 monitoring data from the initial IHA, 
recent Stock Assessment Reports, information on relevant Unusual 
Mortality Events, other scientific literature, and the public comments, 
and determined that there is no new information 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 authorized 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.

        Table 1--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 (West North Atlantic Offshore)...............             204          62,851             0.3
Bottlenose dolphin (Northern Migratory Coastal).................             730           6,639              11
Long-finned pilot whale.........................................              50          39,215             0.1
Risso's dolphin.................................................              38          35,215             0.1
Common dolphin..................................................           3,456         172,947               2
Harbor porpoise.................................................             958          95,543               1
Gray seal.......................................................             861          27,300             3.2
Harbor seal.....................................................             861          61,366             1.4
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Description of Mitigation, Monitoring and Reporting Measures

    The 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 for this renewal include:
     Ramp-up: A ramp-up procedure would be used for geophysical 
survey equipment capable of adjusting energy levels at the start or re-
start of survey activities;
     Protected Species Observers: A minimum of one NMFS-
approved Protected Species Observer (PSO) must

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be on duty and conducting visual observations at all times during 
daylight hours (i.e., from 30 minutes prior to sunrise through 30 
minutes following sunset). Two PSOs will be on watch during nighttime 
operations;
     Pre-Operation Clearance Protocols: Prior to initiating HRG 
survey activities, BPW would implement a 30-minute pre-operation 
clearance period. If any marine mammals are detected within the 
Exclusion Zones prior to or during ramp-up, the HRG equipment would be 
shut down (as described below);
     Shutdown Zones: If an HRG source is active and a marine 
mammal is observed within or entering a relevant shutdown zone, an 
immediate shutdown of the HRG survey equipment would be required. Note 
this shutdown requirement would be waived for certain genera of small 
delphinids and pinnipeds;
     Vessel Strike Avoidance Measures: Separation distances for 
large whales (500 m for North Atlantic right whales; 100 m for sperm 
whales and all other baleen whales; 50 m for all other marine mammals); 
restricted vessel speeds and operational maneuvers; and
     Reporting: BPW will submit a marine mammal report within 
90 days following completion of the surveys.

Comments and Responses

    A notice of NMFS' proposal to issue a renewal IHA to BPW was 
published in the Federal Register on January 31, 2024 (89 FR 6092). 
That notice either described, or referenced descriptions of, BPW's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated amount and manner of take, and proposed mitigation, 
monitoring and reporting measures. NMFS received no public comments.

Determinations

    BPW's 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 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.

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 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 (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 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 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.

Renewal

    NMFS has issued a renewal IHA to BPW for the take of marine mammals 
incidental to 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.

    Dated: February 27, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-04391 Filed 2-29-24; 8:45 am]
BILLING CODE 3510-22-P