[Federal Register Volume 89, Number 137 (Wednesday, July 17, 2024)]
[Notices]
[Pages 58124-58128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15706]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE042]


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

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

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

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SUMMARY: NMFS received a request from Invenergy Wind Offshore, LLC 
(IWO) 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 the New 
York Bight, specifically within the Bureau of Ocean Energy Management 
(BOEM) Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0542 
(Lease Area) and associated Export Cable Route (ECR) survey area (ECR 
Area) . IWO's specified activities are identical to those included in 
the initial IHA. The initial IHA expires on July 30, 2024. Pursuant to 
the Marine Mammal Protection Act, 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 
1, 2024.

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

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

SUPPLEMENTARY INFORMATION: 

Background

    The 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). 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 216.3; 50 CFR 216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity and requested public 
comment on a potential renewal under those circumstances. Specifically, 
on a case-by-case basis, NMFS may issue a one-time 1-year renewal of an 
IHA following notice to the public providing an additional 15 days for 
public comments when (1) up to another year of identical, or nearly 
identical, activities as described in the Detailed Description of 
Specified Activities section of the initial IHA issuance notice is 
planned or (2) the activities as described in the Description of the 
Specified Activities and Anticipated Impacts section of the initial IHA 
issuance notice would not be completed by the time the initial IHA 
expires and a renewal would allow for completion of the activities 
beyond that described in the DATES section of the notice of issuance of 
the initial IHA, provided all of the following conditions are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA);
    2. The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the

[[Page 58125]]

activities analyzed under the initial IHA, are a subset of the 
activities, or include changes so minor (e.g., reduction in pile size) 
that the changes do not affect the previous analyses, mitigation and 
monitoring requirements, or take estimates (with the exception of 
reducing the type or amount of take); and
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized; and
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. 
Any comments received on the potential renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA renewal and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS determined that the issuance of the 
initial IHA qualified to be categorically excluded 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 July 19, 2023, NMFS issued the initial IHA to IWO to take small 
numbers of marine mammals incidental to site characterization surveys 
off the coast of New York and New Jersey in the New York Bight (88 FR 
47846, July 25, 2023), effective from July 31, 2023 through July 30, 
2024. On May 3, 2024, NMFS received a request for the renewal of the 
initial IHA, which was deemed adequate and complete on May 24, 2024. As 
described in the application for renewal IHA, the specified activities 
for which incidental take is requested are identical to those included 
in the initial authorization. As required, IWO provided a preliminary 
monitoring report, which shows that it has implemented the required 
mitigation and monitoring measures and no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted.

Description of the Specified Activities and Anticipated Impacts

    IWO requested to conduct an additional year of marine site 
characterization surveys with high-resolution geophysical (HRG) surveys 
and geotechnical sampling from July 31, 2024 through July 30, 2025. 
Only HRG surveys are expected to have the potential to cause incidental 
take of small numbers of marine mammals. The survey will consist of up 
to 12,818 km of trackline in waters off the coast of New Jersey and New 
York in the New York Bight, which is within the Bureau of Ocean Energy 
Management (BOEM) lease area OCS-A 0542 and the associated Export Cable 
Route (ECR) Area. Hereafter, both the areas are referred to as the 
Survey Area.
    The purpose of IWO's proposed surveys is to provide sufficient data 
to meet BOEM guidelines and support the development of offshore wind 
facilities in the Survey Area. Specifically, data collected would 
support site characterization, siting, and engineering design of 
offshore wind facilities including turbine generators, offshore 
substations, submarine cables and data necessary for project review 
requirements. IWO will have a maximum of 3 vessels surveying 
concurrently. Underwater sounds produced from sparkers and boomers 
during IWO's surveys has the potential to result in Level B harassment 
of 15 species and 16 stocks of marine mammals. Activities proposed for 
the IHA renewal are identical in scope, effort, potential harassment to 
marine mammals, and mitigation measures as the final proposed IHA (88 
FR 47846, July 25, 2023).

Detailed Description of the Activity

    A detailed description of the surveys for which incidental take is 
proposed here may be found in the Federal Register Notices of the 
initial Proposed IHA (88 FR 32735, May 22, 2023). The location, 
duration, and nature of the activities, including the types of 
equipment planned for use, are identical to those described in the 
previous notices. The proposed renewal would be effective for a period 
not exceeding 1 year from July 30, 2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice of the proposed IHAs (88 FR 32735, May 22, 
2023) for the initial IHA. NMFS has reviewed the monitoring data from 
the initial IHA, the draft 2023 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 
(Nbest) of North Atlantic right whales from 338 to 340 and 
annual mortality and serious injury from 31.2 to 27.2. The updated 
population estimate in the draft 2023 SAR is based upon sighting 
history through December 2021 (89 FR 5495, January 29, 2024). Total 
annual average observed North Atlantic right whale mortality during the 
period 2017-2021 was 7.1 animals and annual average observed fishery 
mortality was 4.6 animals, however, estimates of 27.2 total mortality 
and 17.6 fishery mortality account for undetected mortality and serious 
injury (89 FR 5495, January 29, 2024). In October 2023, NMFS released a 
technical report identifying that the North Atlantic right whale 
population size based on sighting history through 2022 was 356 whales, 
with a 95 percent credible interval ranging from 346 to 363 (Linden, 
2023).
    The population estimates (Nbest) also increased for the 
North Atlantic stock of sperm whales, the Western North Atlantic 
Offshore stock of common bottlenose dolphins, Western North Atlantic 
stocks of Risso's dolphins, Atlantic spotted dolphins, and gray seals. 
However, abundance estimates slightly decreased for the Western North

[[Page 58126]]

Atlantic stocks of common dolphins and harbor porpoises. NMFS has 
determined there is no new information that affects which species or 
stocks have the potential to be affected or the pertinent information 
in the Description of the Marine Mammals in the Area of Specified 
Activities contained in the supporting documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which an IHA is 
proposed here may be found in the Notice of the proposed IHA (88 FR 
32735, May 22, 2023) for the initial IHA. NMFS has reviewed the 
monitoring data from the initial IHA, recent draft stock assessment 
reports, information on relevant UMEs 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 
Notice of the Final IHA (88 FR 47846, July 25, 2023) for the initial 
IHA. Specifically, the source levels, days of operation, and marine 
mammal density/occurrence data applicable to this authorization remain 
unchanged from the initial IHA. Similarly, the stocks taken, methods of 
take, and type of take remain unchanged from the initial IHA, as do the 
number of takes, which are indicated below in table 1.

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

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this proposed IHA are identical to those 
included in the Federal Register notice announcing the issuance of the 
initial IHA (88 FR 47846, July 25, 2023) and the discussion of the 
least practicable adverse impact determination included in that 
document remains applicable and accurate.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (88 
FR 32735; May 22, 2023) and solicited public comments on both our 
proposal to issue the initial IHA for marine site characterization 
surveys off the coast of New York and New Jersey in the New York Bight 
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 47846, July 25, 2023). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
renewal of the 2024 IHA.
    Comment: Oceana raised objections to NMFS' proposed renewal process 
for potential extension of the 1-year IHA with an abbreviated 15-day 
public comment period. Oceana recommended that an additional 30-day 
public comment period is necessary for any IHA renewal request.
    Response: NMFS' IHA renewal process meets all statutory 
requirements. In prior responses to comments about IHA renewals (e.g., 
84 FR 52464, October 2, 2019; 85 FR 53342, August 28, 2020), NMFS 
explained the IHA renewal process is consistent with the statutory 
requirements contained in section 101(a)(5)(D) of the MMPA, and 
further, promotes NMFS' goals of improving conservation of marine 
mammals and increasing efficiency in the MMPA compliance process. 
Therefore, we intend to continue to implement the existing renewal 
process.
    All IHAs issued, whether an initial IHA or a renewal, are valid for 
a period of not more than 1 year. The public has 30 days to comment on 
proposed IHAs, with a cumulative total of 45 days for IHA renewals. The 
notice of the proposed IHA published in the Federal Register on May 22, 
2023 (88 FR 32735) provided a 30-day public comment period and made 
clear that NMFS was seeking comment on the proposed IHA and the 
potential issuance of an IHA renewal for this survey. As detailed in 
the Federal Register notice for the proposed IHA and on the agency's 
website, eligibility for renewal is determined on a case-by-case basis, 
renewals are subject to an additional 15-day public comment period, and 
the renewal is limited to up to another year of identical or nearly 
identical activities

[[Page 58127]]

as described in the Description of Proposed Activities section of the 
proposed IHA notice or the activities described in the Description of 
Proposed Activities section of the proposed IHA notice would not be 
completed by the time the IHA expires and a renewal would allow for 
completion of the activities beyond that described in the Dates and 
Duration section of this notice. NMFS' analysis of the anticipated 
impacts on marine mammals caused by the applicant's activities covers 
both the initial IHA period and the possibility of a 1-year renewal. 
Therefore, a member of the public considering commenting on a proposed 
initial IHA also knows exactly what activities (or subset of 
activities) would be included in a proposed renewal IHA, the potential 
impacts of those activities, the maximum amount and type of take that 
could be caused by those activities, the mitigation and monitoring 
measures that would be required, and the basis for the agency's 
negligible impact determinations, least practicable adverse impact 
findings, small numbers findings, and (if applicable) the no 
unmitigable adverse impact on subsistence use finding--all the 
information needed to provide complete and meaningful comments on a 
possible renewal at the time of considering the proposed initial IHA. 
Reviewers have the information needed to meaningfully comment on both 
the immediate proposed IHA and a possible 1-year renewal, should the 
IHA holder choose to request one.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
would also contain a preliminary monitoring report, in order to verify 
that effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15- day public comment 
period, which includes NMFS' direct notice to anyone who commented on 
the proposed initial IHA, provides the public an opportunity to review 
these few documents, provide any additional pertinent information, and 
comment on whether they think the criteria for a renewal have been met. 
Combined together, the 30-day public comment period on the initial IHA 
and the additional 15-day public comment period on the renewal of the 
same or nearly identical activities, provides the public with a total 
of 45 days to comment on the potential for renewal of the IHA.
    In addition to the IHA renewal process being consistent with all 
requirements under section 101(a)(5)(D) of the MMPA, it is also 
consistent with Congress' intent for issuance of IHAs to the extent 
reflected in statements in the legislative history of the MMPA. Through 
the description of the process and express invitation to comment on 
specific potential renewals in the Request for Public Comments section 
of each proposed IHA, the description of the process on NMFS' website, 
further elaboration on the process through responses to comments such 
as these, posting of substantive documents on the agency's website, and 
provision of 30 or 45 days for public review and comment on all 
proposed initial IHAs and renewals respectively, NMFS has ensured that 
the public is ``invited and encouraged to participate fully in the 
agency's decision-making process,'' as Congress intended.
    For more information, NMFS has published a description of the 
Renewal process on our website (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals).

Preliminary Determinations

    NMFS proposes to authorize incidental take of small numbers of 
marine mammals from specified activities that are identical to those 
analyzed in the initial IHA and to require mitigation, monitoring, and 
reporting measures that are also identical to those in the initial IHA. 
The number of takes by Level B harassment proposed is equal to that 
authorized in the initial IHA. In the initial IHA, NMFS determined that 
IWO's specified activities would have a negligible impact on the 
affected species and/or stocks and the authorized take for each stock 
would be small relative to individual stock abundance (less than one 
third).
    NMFS has 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 
estimated abundance of seven stocks decreasing/increasing slightly. 
Specifically, NMFS is proposing to authorize six takes of North 
Atlantic right whales by Level B harassment only, and the impacts 
resulting from the project's activities are neither reasonably expected 
nor reasonably likely to adversely affect the stock through effects on 
annual rates of recruitment or survival. Additionally, approximately 
1.76 percent of the stock abundance is 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 effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the authorized takes represent small 
numbers of marine mammals relative to the affected stock abundances; 
(4) IWO's activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no 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 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS' Office of Protected Resources is proposing to authorize take 
of four species of marine mammals that are listed under the ESA (i.e., 
North Atlantic right whale, fin whale, sei whale, and sperm whale) and 
has determined these activities fall within the scope of activities 
analyzed in the NMFS GARFO programmatic consultation regarding 
geophysical surveys along the U.S. Atlantic coast in the 3 Atlantic 
renewable energy regions (completed June 29, 2021; revised September 
2021).

[[Page 58128]]

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to IWO for conducting marine site characterization 
with HRG surveys off the coast of New York and New Jersey in the New 
York Bight from July 31, 2024, through July 30, 2025, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed and final initial IHA can be 
found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment 
on our analyses, the proposed renewal IHA, and any other aspect of this 
notice. Please include with your comments any supporting data or 
literature citations to help inform our final decision on the request 
for MMPA authorization.

    Dated: July 12, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-15706 Filed 7-16-24; 8:45 am]
BILLING CODE 3510-22-P