Federal Register / Vol. 89, No. 184 / Monday, September 23, 2024 / Notices 77479 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XE194] 

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; issuance of renewal 

incidental harassment authorization. 

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 Attentive Energy, LLC 

(Attentive Energy), associated with 

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. 

DATES: This renewal IHA is effective 

from September 18, 2024 through June 

19, 2025. 

ADDRESSES: Electronic copies of the 

original application, renewal request, 

and supporting documents (including 

the Federal Register notices of the 

original proposed and final 

authorizations, and the previously 

issued and renewal IHA), as well as 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-otherenergy-activities-renewable. 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 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 caseby-case basis, NMFS may issue a onetime 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: 

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-authorizationrenewals. 

History of Request 

On June 20, 2023, NMFS issued an 

IHA to Attentive Energy, a company 

registered in the state of Delaware, 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 region, 

specifically within 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 from Attentive Energy for 

the renewal of the 2023 IHA. As 

described in the application for renewal 

IHA, the activities for which incidental 

take was requested consisted of 

activities that were analyzed for the 

initial 2023 authorization, but were not 

able to be completed prior to its 

expiration. As required, Attentive 


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Energy also provided a final monitoring 

report (available at https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable) which confirms 

that Attentive Energy had implemented 

the required mitigation and monitoring, 

and also showed 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 August 7, 2024 

(89 FR 64414). There are no changes 

from the proposed authorization to this 

final authorization. 

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 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 plans 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 in the proposed 

renewal Federal Register notice); 

however, this expansion of the survey 

area will not result in any increase to 

the amount of planned survey trackline 

distance. 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. 

The potential impacts of Attentive 

Energy’s planned activities on marine 

mammals involve potential acoustic 

stressors and are unchanged from the 

impacts described in the Federal 

Register notice for the proposed 2023 

IHA (88 FR 24553, April 21, 2023). 

Underwater sound, resulting from 

particular components of Attentive 

Energy’s HRG survey activities, has the 

potential to result in incidental take of 

marine mammals, in the form of Level 

B harassment only, in the specified 

geographic region. 

This renewal IHA is for the remainder 

of work that was not completed by the 

expiration date of the 2023 IHA. The 

renewal IHA authorizes incidental take, 

by Level B harassment only, of 15 

species (comprising 16 stocks) of marine 

mammals for a subset of marine site 

characterization survey activities to be 

completed in less than 1 year (i.e., by 

June 19, 2025), in the same general area, 

using survey methods identical to those 

conducted under the initial 2023 IHA. 

Neither Attentive Energy nor NMFS 

expects serious injury or mortality to 

result from this activity and, therefore, 

an IHA is appropriate. Take by Level A 

harassment (injury) is unlikely, even 

absent mitigation, based on the 

characteristics of the signals produced 

by the acoustic sources planned for use. 

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 for the 

issued 2023 IHA (88 FR 41888, June 28, 

2023). 

Detailed Description of the Specified 

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 2023 IHA (88 FR 

24553, April 21, 2023). The specific 

geographic region and specified 

activities, including the types of survey 

equipment and number of survey 

vessels planned for use, are identical to 

those described in the previous notices, 

with the exception of a minor increase 

in in the size of the survey area to the 

south to accommodate expanded survey 

options for the ECR. 

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 stock assessment reports 

(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 2017–2021 period 

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 in the proposed 

renewal Federal Register notice (89 FR 

64414, August 7, 2024). 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 also noted this in 

table 1 of the proposed renewal Federal 

Register notice. 

On August 1, 2022, NMFS announced 

proposed changes to the existing North 


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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. 

NMFS has determined that no new 

information has been presented that 

may affect or change any other 

information in the Description of the 

Marine Mammals in the Area of 

Specified Activities contained in the 

supporting documents and in the 

Federal Register notice for the proposed 

renewal IHA (89 FR 64414, August 7, 

2024). 

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 24553, 

April 21, 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 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 

and final IHAs for the initial 

authorization (88 FR 24553, April 21, 

2023; 88 FR 41888, June 28, 2023) and 

referenced in the Federal Register 

notice for the proposed renewal IHA (89 

FR 64414, August 7, 2024). 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 that Attentive Energy 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

Common name Population 

abundance 

Percentage of 

trackline 

remaining in 

relevant 

habitat 

Authorized 

takes based 

on remaining 

trackline 

Percent of 

population 

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 Offshore .................................... 64,587 28 489 0.76 

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 

Description of Mitigation, Monitoring 

and Reporting Measures 

The required 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), the Federal Register 

notice for the proposed renewal IHA (89 

FR 64414, August 7, 2024), and the 

discussion of the least practicable 

adverse impact included in that 

document and the Federal Register 

notice of the proposed IHA (88 FR 

24553, April 21, 2023) remains accurate. 

The following measures are required for 

this renewal IHA: 

• 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; 

• 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; 

• 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); 


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• 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; 

• Vessel Strike Avoidance Measures: 

500 m (1,640 ft) separation distances for 

North Atlantic right whales and other 

large Endangered Species Act (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 

• Reporting: Attentive Energy would 

submit a marine mammal report within 

90 days following their completion of 

the surveys. 

Comments and Responses 

A notice of NMFS’ proposal to issue 

a renewal IHA to Attentive Energy was 

published in the Federal Register on 

August 7, 2024 (89 FR 64414). That 

notice either described, or referenced 

descriptions of, Attentive Energy’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. 

During the 15-day public comment 

period, NMFS received one comment 

from a member of the public and one 

comment letter from a nongovernmental organization, Clean Ocean 

Action (COA). NMFS has reviewed all 

public comments received on the 

Attentive Energy renewal HRG IHA. All 

relevant, substantive comments, and 

NMFS’ responses, are provided below. 

Comments indicating general opposition 

to offshore wind construction are not 

relevant to the proposed action and 

therefore were not considered and are 

not addressed here. The comments and 

recommendations are available online 

at: https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-otherenergy-activities-renewable. Please see 

the comment submissions for full 

details regarding the recommendations 

and supporting rationale. 

Comment 1: COA expressed concern 

with the slight modification to the 

survey area described in Attentive 

Energy’s renewal request (89 FR 64414, 

August 7, 2024). COA asserts that NMFS 

has provided insufficient support for its 

determination that this is a minor 

change to the initial action that would 

not affect any previous analysis, 

mitigation and monitoring 

requirements, and take estimates. COA 

states that NMFS should provide 

additional support for its conclusion 

and that it does not believe that the 

survey area is ‘‘nearly identical.’’ COA 

claims that the expanded survey area 

now includes additional haulout sites 

for seals along Barnegat Light on Long 

Beach Island (Normandeau Associates, 

Inc., 2019) and a migratory corridor for 

several marine mammals (i.e., 

humpback whale, fin whale, and North 

Atlantic right whales) not previously 

included. COA also stated that NMFS 

did not adjust the number of takes 

proposed for authorization based on this 

additional information and, therefore, 

should not issue the renewal IHA to 

Attentive Energy. 

Response: Regarding the take 

estimates, NMFS disagrees with COA’s 

suggestion that the minor change to the 

planned survey area presents new 

information requiring additional 

analysis. We note that the total amount 

of trackline planned to be surveyed 

under this renewal IHA has not 

increased, when compared to what 

remains from the initial IHA even given 

the minor shift in the planned survey 

area. Changes to the density values over 

the entirety of the survey area are, 

overall, inconsequential and do not 

result in meaningful changes to the take 

numbers which, in context of the subset 

of activity that remains, are less than 

those estimated and authorized through 

the initial IHA. 

NMFS agrees with COA that the 

expanded area, inclusive of the initial 

project area as well, includes habitat for 

marine mammals, including pinniped 

haulouts and migratory habitat for 

certain cetacean species. The survey 

area described for the initial IHA 

included the same migratory habitat for 

the same cetacean species, as well as 

coastal habitat where pinnipeds may 

choose to haul out. Contrary to COA’s 

assertion that the minor expansion of 

the survey area to cover a new potential 

ECR would affect new habitat areas not 

previously considered, cetacean 

migratory habitat is typically broad and 

there are not differences in the type, 

location, or use of such habitat over the 

relatively fine scales considered here. 

Regarding pinniped haulout habitat, 

such locations are typically 

opportunistic and, given their shorebased locations, unlikely to be affected 

at all by the planned survey activity. 

Furthermore, while they may now fall 

within the slightly expanded project 

area, there is no new information about 

the haulout sites along Barnegat Light 

on Long Beach Island to suggest that 

they are dissimilar from those off the 

Long Island area, as compared with 

those previously analyzed for pinnipeds 

under the initial Federal Register 

notice. Therefore, there is nothing new 

to consider in relation to the analysis 

described herein. NMFS adequately 

considered all available information 

regarding potential impacts to all 

marine mammal habitat in its analysis 

supporting the issuance of the initial 

IHA, and the minor change considered 

as part of this renewal IHA presents no 

new information regarding potential 

impacts to marine mammal habitat. 

Comment 2: COA asserted that NMFS 

should reject Attentive Energy’s 

application until the cumulative 

impacts of every incidental take 

authorization on marine mammals are 

considered. COA also stated that NMFS 

must fully consider the discrete effects 

of each activity and the cumulative 

effects of the suite of approved, 

proposed, and potential offshore wind 

activities on marine mammals and 

ensure that the cumulative effects are 

not excessive before issuing or renewing 

an IHA. 

Response: NMFS is required to 

authorize the requested incidental take 

if it finds the incidental take by 

harassment of small numbers of marine 

mammals by U.S. citizens ‘‘while 

engaging in that [specified] activity’’ 

within a specified geographic region 

will have a negligible impact on such 

species or stock and where appropriate, 

will not have an unmitigable adverse 

impact on the availability of such 

species or stock for subsistence uses (see 

16 U.S.C. 1371(a)(5)(D)). Negligible 

impact is defined as ‘‘an impact 

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival’’ 

(50 CFR 216.103). Neither the MMPA, 

nor NMFS’ implementing regulations, 

require consideration of other unrelated 

activities and their impacts on marine 

mammal populations in the negligible 

impact determination. Additionally, 

NMFS’ implementing regulations 

require applicants to include in their 

request a detailed description of the 

specified activity or class of activities 

that can be expected to result in 

incidental taking of marine mammals 

(50 CFR 216.104(a)(1)). Thus, the 

‘‘specified activity’’ for which incidental 

take coverage is being sought under 

section 101(a)(5)(D) is generally defined 

and described by the applicant. 

Consistent with the preamble of NMFS’ 

implementing regulations (54 FR 40338, 


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September 29, 1989), the impacts from 

other past and ongoing anthropogenic 

activities are factored into the baseline, 

which is used in the negligible impact 

analysis. Here, NMFS has factored into 

its negligible impact analysis the 

impacts of other past and ongoing 

anthropogenic activities via their 

impacts on the baseline (e.g., as 

reflected in the density, distribution and 

status of the species, population size 

and growth rate, and other relevant 

stressors). 

The preamble of NMFS’ 

implementing regulations (54 FR 40338, 

September 29, 1989) also addresses 

cumulative effects from future, 

unrelated activities. Such effects are not 

considered in making the negligible 

impact determination under MMPA 

section 101(a)(5). NMFS considers (1) 

cumulative effects that are reasonably 

foreseeable when preparing a National 

Environmental Policy Act (NEPA) 

analysis, and (2) reasonably foreseeable 

cumulative effects under section 7 of the 

ESA for listed species, as appropriate. 

Accordingly, NMFS has written 

Environmental Assessments (EA) that 

addressed cumulative impacts related to 

substantially similar activities in similar 

locations (e.g., the 2019 Avangrid EA for 

survey activities offshore North Carolina 

and Virginia; the 2017 Ocean Wind, LLC 

EA for site characterization surveys off 

New Jersey; and the 2018 Deepwater 

Wind EA for survey activities offshore 

Delaware, Massachusetts, and Rhode 

Island). Cumulative impacts regarding 

issuance of IHAs for site 

characterization survey activities such 

as those planned by Attentive Energy 

have been adequately addressed under 

NEPA in prior environmental analyses 

that support NMFS’ determination that 

this action is appropriately categorically 

excluded from further NEPA analysis. 

NMFS independently evaluated the use 

of a categorical exclusion (CE) for 

issuance of Attentive Energy’s IHA, 

which included consideration of 

extraordinary circumstances. 

Separately, the cumulative effects of 

substantially similar activities in the 

northwest Atlantic Ocean have been 

analyzed in the past under section 7 of 

the ESA when NMFS has engaged in 

formal intra-agency consultation, such 

as the 2013 programmatic Biological 

Opinion for BOEM Lease and Site 

Assessment Activities on the Atlantic 

Outer Continental Shelf in Rhode 

Island, Massachusetts, New York, and 

New Jersey Wind Energy Areas (https:// 

repository.library.noaa.gov/view/noaa/ 

29291). Analyzed activities include 

those for which NMFS issued previous 

IHAs (82 FR 31562, July 7, 2017; 83 FR 

28808, June 21, 2018; 83 FR 36539, July 

30, 2018; and 86 FR 26465, May 10, 

2021), which are similar to those 

planned by Attentive Energy under this 

current IHA request. This Biological 

Opinion determined that NMFS’ 

issuance of IHAs for site 

characterization survey activities 

associated with leasing, individually 

and cumulatively, are not likely to 

adversely affect listed marine mammals. 

NMFS notes that, while issuance of this 

IHA is covered under a different 

consultation, this Biological Opinion 

remains valid. Additionally, to date, 

Biological Opinions have been 

developed and competed for several 

ongoing offshore wind construction 

projects, which all include HRG surveys 

within the scope of the proposed actions 

(see the final Biological Opinions for 

Ocean Wind 1 (https://

repository.library.noaa.gov/view/noaa/ 

49689), Revolution Wind’s original 

(https://repository.library.noaa.gov/ 

view/noaa/51759) and reinitiated 

(https://www.fisheries.noaa.gov/s3/ 

2024-05/2024-Rev-Wind-BiOp-508.pdf), 

CVOW–C (https://repository.

library.noaa.gov/view/noaa/55495), 

Empire Wind (https://repository.library.

noaa.gov/view/noaa/55324), Sunrise 

Wind (https://repository.

library.noaa.gov/view/noaa/55726), 

New England Wind (https://

repository.library.noaa.gov/view/noaa/ 

60610), and Maryland Wind (https://

repository.library.noaa.gov/view/noaa/ 

61632)). These Biological Opinions for 

larger-scale construction and 

development projects have all assessed 

the cumulative activities occurring 

within the relevant project areas, which 

include HRG activities occurring under 

IHAs, as well as HRG surveys and other 

construction activities occurring under 

Incidental Take Regulations and 

associated issued Letters of 

Authorization. In all cases, the HRG 

surveys analyzed within these 

Biological Opinions are of substantially 

similar activities, using the same or 

similar acoustic sources as those 

planned for use by Attentive Energy 

under this renewal IHA. Based on this 

information, NMFS believes the discrete 

and cumulative effects have been 

adequately analyzed and considered 

under these existing documents. 

Comment 3: COA states its opposition 

to the use of a categorical exclusion 

under NEPA for this renewal action. 

Response: NMFS does not agree with 

COA’s comment. A CE is a category of 

actions that an agency has determined 

does not individually or cumulatively 

have a significant effect on the quality 

of the human environment, and is 

appropriately applied for such 

categories of actions so long as there are 

no extraordinary circumstances present 

that would indicate that the effects of 

the action may be significant. 

Extraordinary circumstances are 

situations for which NOAA has 

determined further NEPA analysis is 

required because they are circumstances 

in which a normally excluded action 

may have significant effects. A 

determination of whether an action that 

is normally excluded requires 

additional evaluation because of 

extraordinary circumstances focuses on 

the action’s potential effects and 

considers the significance of those 

effects in terms of both context 

(consideration of the affected region, 

interests, and resources) and intensity 

(severity of impacts). Potential 

extraordinary circumstances relevant to 

this action include (1) adverse effects on 

species or habitats protected by the 

MMPA that are not negligible; (2) highly 

controversial environmental effects; (3) 

environmental effects that are uncertain, 

unique, or unknown; and (4) the 

potential for significant cumulative 

impacts when the proposed action is 

combined with other past, present, and 

reasonably foreseeable future actions. 

The relevant NOAA CE associated 

with issuance of incidental take 

authorizations is CE B4, ‘‘Issuance of 

incidental harassment authorizations 

under section 101(a)(5)(A) and (D) of the 

MMPA for the incidental, but not 

intentional, take by harassment of 

marine mammals during specified 

activities and for which no serious 

injury or mortality is anticipated.’’ This 

action falls within CE B4. In 

determining whether a CE is appropriate 

for a given incidental take authorization, 

NMFS considers the applicant’s 

specified activity and the potential 

extent and magnitude of takes of marine 

mammals associated with that activity 

along with the extraordinary 

circumstances listed in the Companion 

Manual for NOAA Administrative Order 

(NAO) 216–6A and summarized above. 

The evaluation of whether extraordinary 

circumstances (if present) have the 

potential for significant environmental 

effects is limited to the decision NMFS 

is responsible for, which is issuance of 

the incidental take authorization. While 

there may be environmental effects 

associated with the underlying action, 

potential effects of NMFS’ action are 

limited to those that would occur due to 

the authorization of incidental take of 

marine mammals. NMFS prepared 

numerous EAs analyzing the 

environmental impacts of the categories 

of activities encompassed by CE B4 

which resulted in Findings of No 

Significant Impacts and, in particular, 


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numerous EAs prepared in support of 

issuance of IHAs related to similar 

survey actions are part of NMFS’ 

administrative record supporting CE B4. 

These EAs demonstrate that the 

issuance of a given incidental 

harassment authorization does not affect 

other aspects of the human environment 

because the action only affects the 

marine mammals that are the subject of 

the IHAs. These EAs also addressed 

factors in 40 CFR 1508.27 regarding the 

potential for significant impacts and 

demonstrate the issuance of IHAs for the 

categories of activities encompassed by 

CE B4 do not individually or 

cumulatively have a significant effect on 

the human environment. 

Specifically for this action, NMFS 

independently evaluated the use of the 

CE for issuance of Attentive Energy’s 

IHA, which included consideration of 

extraordinary circumstances. As part of 

that analysis, NMFS considered whether 

this IHA issuance would result in 

cumulative impacts that could be 

significant. In particular, the issuance of 

an IHA to Attentive Energy is expected 

to result in minor, short-term behavioral 

effects on marine mammal species due 

to exposure to underwater sound from 

site characterization survey activities. 

Behavioral disturbance is possible to 

occur intermittently in the vicinity of 

Attentive Energy’s survey area during 

the 1-year timeframe. Level B 

harassment will be reduced through use 

of mitigation measures described herein. 

Additionally, as discussed elsewhere, 

NMFS has determined that Attentive 

Energy’s activities fall within the scope 

of activities analyzed in the Greater 

Atlantic Regional Fisheries Office’s 

(GARFO) programmatic consultation 

regarding geophysical surveys along the 

U.S. Atlantic coast in the three Atlantic 

Renewable Energy Regions (completed 

June 29, 2021; revised September 2021), 

which concluded surveys such as those 

planned by Attentive Energy are not 

likely to adversely affect endangered 

listed species or adversely modify or 

destroy critical habitat. Accordingly, 

NMFS has determined that the issuance 

of this IHA will result in no more than 

negligible (as that term is defined by the 

Companion Manual for NAO 216–6A) 

adverse effects on species protected by 

the ESA and the MMPA. 

Further, the issuance of this IHA will 

not result in highly controversial 

environmental effects or result in 

environmental effects that are uncertain, 

unique, or unknown because numerous 

entities have been engaged in site 

characterization surveys that result in 

Level B harassment of marine mammals 

in the United States. This type of 

activity is well documented; prior 

authorizations and analysis 

demonstrates issuance of an IHA for this 

type of action only affects the marine 

mammals that are the subject of the 

specific authorization and, thus, no 

potential for significant cumulative 

impacts are expected, regardless of past, 

present, or reasonably foreseeable 

actions, even though the impacts of the 

action may not be significant by itself. 

Based on this evaluation, we concluded 

that the issuance of the IHA qualifies to 

be categorically excluded from further 

NEPA review. 

Comment 4: COA suggested that a 

Letter of Authorization (LOA) would be 

more appropriate than an IHA for the 

proposed survey activities as the survey 

activities have spanned more than 1 

year and ‘‘it is not clear how long the 

proposed activities would span given 

past delays.’’ 

Response: NMFS disagrees with the 

commenter that an LOA would be more 

appropriate for the planned survey 

activities than an IHA. All IHAs issued, 

whether an initial IHA or a renewal, are 

valid for a period of not more than 1 

year. Attentive Energy’s request for the 

initial IHA indicated a project duration 

of 1 year. As delays may be 

encountered, applicants may apply for a 

renewal IHA if the work under the 

initial IHA is not able to be completed 

within the effective period of the 

authorization. In order to qualify for a 

renewal IHA, the proposed renewal 

must consist of up to another year of 

identical, or nearly identical, activities 

as were covered by the initial IHA or a 

subset of the activities covered by the 

initial IHA. Attentive Energy’s request 

falls under the latter requirements and 

the necessary preliminary monitoring 

data collected under the initial IHA 

were provided. Therefore, Attentive 

Energy’s request is appropriate for a 

renewal IHA. 

Regarding clarification on 

authorizations, as described on our 

website, IHAs are 1-year authorizations 

and Incidental Take Regulations (ITR) 

are 5-year regulations that allow for the 

issuance of LOA. An ITR must be used 

if authorization of take by mortality is 

necessary (although not all ITRs include 

mortality). However, both options are 

available for applicants requesting 

authorization of harassment only. While 

applicants may request a 5-year 

regulation for HRG survey activities, 

NMFS has not received any such 

requests to date and there is no 

expectation presented in the MMPA or 

Congressional record that activities 

continuing for more than 1 year must 

seek ITR and authorization under 

section 101(a)(5)(A) of the MMPA. 

Therefore, a determination of which 

option to take is not dependent on any 

expectation regarding whether the 

activity will continue for more than 1 

year or not. 

Comment 5: COA urged NMFS to 

deny the proposed project and/or 

postpone any offshore wind activities 

until NMFS determines effects of all 

offshore wind-related activities on 

marine mammals in the region and 

determines that the recent whale deaths 

are not related to offshore wind 

activities. COA stated general concerns 

regarding recent whale stranding events 

on the Atlantic Coast, including 

speculation that the strandings may be 

related to wind energy development 

activities. 

Response: NMFS authorizes take of 

marine mammals incidental to marine 

site characterization surveys but does 

not authorize the surveys themselves. 

NMFS has the authority to modify, 

suspend, or revoke an IHA if the IHA 

holder fails to abide by the conditions 

prescribed therein (including, but not 

limited to, failure to comply with 

monitoring or reporting requirements), 

or if NMFS determines that (1) the 

authorized taking is having or is likely 

to have more than a negligible impact 

on the species or stocks of affected 

marine mammals, or (2) the prescribed 

measures are likely not or are not 

effecting the least practicable adverse 

impact on the affected species or stocks 

and their habitat. NMFS has analyzed 

the planned activity, as proposed by 

Attentive Energy, within the discrete 

context for which it was requested (i.e., 

as a stand-alone activity and not part of 

a larger programmatic survey effort or 

group of specific activities). It is in this 

context that NMFS has authority to 

authorize incidental take and to 

prescribe mitigation, monitoring, and 

reporting requirements, as appropriate, 

and can revoke or suspend any IHA 

issued under the MMPA if and when 

action is warranted. 

In this comment letter, COA speaks 

more broadly about all offshore wind 

efforts along the U.S. East Coast, not just 

specific to this discrete IHA. It is not 

within NMFS’ jurisdiction to impose a 

moratorium on all offshore wind 

development activities unrelated to this 

specific IHA request and planned 

activities. NMFS reiterates that there is 

no evidence that noise resulting from 

offshore wind development-related site 

characterization surveys could 

potentially cause marine mammal 

stranding, and there is no evidence 

linking recent large whale mortalities 

and currently ongoing surveys. The 

commenters offer no such evidence to 

the contrary. NMFS will continue to 

gather data to help us determine the 


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Federal Register / Vol. 89, No. 184 / Monday, September 23, 2024 / Notices 77485 

cause of death for these stranded 

whales. We note the Marine Mammal 

Commission’s recent statement: ‘‘There 

continues to be no evidence to link 

these large whale strandings to offshore 

wind energy development, including no 

evidence to link them to sound emitted 

during wind development-related site 

characterization surveys, known as HRG 

surveys. Although HRG surveys have 

been occurring off New England and the 

mid-Atlantic coast, HRG devices have 

never been implicated or causativelyassociated with baleen whale 

strandings’’ (Marine Mammal 

Commission Newsletter, Spring 2023). 

Furthermore, NMFS does not expect 

that the marine site characterization 

survey activities planned by Attentive 

Energy will create conditions of acute or 

chronic acoustic exposure leading to 

long-term physiological impacts in 

whales. 

There is an ongoing Unusual 

Mortality Event for humpback whales 

along the Atlantic coast from Maine to 

Florida, which includes animals 

stranded since 2016. Partial or full 

necropsy examinations were conducted 

on approximately half of the whales. 

Necropsies were not conducted on other 

carcasses because they were too 

decomposed, not brought to land, or 

stranded on protected lands (e.g., 

national and state parks) with limited or 

no access. Of the whales examined 

(roughly 90), about 40 percent had 

evidence of human interaction, either 

vessel strike or entanglement. Vessel 

strikes and entanglement in fishing gear 

are the greatest human threats to large 

whales. The approximately 50 

remaining necropsied whales either had 

an undetermined cause of death (due to 

a limited examination or decomposition 

of the carcass), or had other causes of 

death including parasite-caused organ 

damage and starvation. As discussed 

herein, HRG sources may behaviorally 

disturb marine mammals (e.g., 

avoidance of the immediate area). But 

these HRG surveys are very different 

from seismic airguns used in oil and gas 

surveys or tactical military sonar. They 

produce much smaller impact zones 

because, in general, they have lower 

source levels and produce output at 

higher frequencies. The area within 

which HRG sources might behaviorally 

disturb a marine mammal is orders of 

magnitude smaller than the impact areas 

for seismic airguns or military sonar. 

Any marine mammal exposure would 

be at significantly lower levels and 

shorter duration, which is associated 

with less severe impacts to marine 

mammals. For these reasons, NMFS 

observes a lack of evidentiary support 

for a link between wind energy 

development activities and whale 

stranding. 

Changes From Proposed to Final 

Renewal IHA 

No changes were made from the 

proposed renewal IHA to the final 

renewal IHA. 

Determinations 

Attentive Energy’s planned 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 required 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. This 

includes consideration of the draft 2023 

SAR estimated abundance of the North 

Atlantic right whale stock and other 

stocks, as shown in table 1 of the 

Federal Register notice for the proposed 

renewal IHA (89 FR 64414, August 7, 

2024). NMFS has authorized four 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, 

only about 1.2 percent of this stock’s 

abundance is authorized to be taken 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 

adverse impact on marine mammal 

species or stocks and their habitat; (2) 

the authorized takes would 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) 

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. 

National Environmental Policy Act 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 (incidental 

take authorizations with no anticipated 

serious injury or mortality) of the 

Companion Manual for NOAA 

Administrative Order 216–6A, which do 

not individually or cumulatively have 

the potential for significant impacts on 

the quality of the human environment 

and for which we have not identified 

any extraordinary circumstances that 

would preclude this categorical 

exclusion. Accordingly, NMFS 

determined that the issuance of the 

initial IHA qualified to be categorically 

excluded from further NEPA review. 

NMFS has determined that the 

application of this categorical exclusion 

remains appropriate for this renewal 

IHA. 

Endangered Species Act 

Section 7(a)(2) of the ESA 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 Office of Protected 

Resources consults internally whenever 

we propose to authorize take of 

endangered or threatened species. 

NMFS has authorized the incidental 

take of four species of marine mammals 

which are listed under the ESA, 

including the North Atlantic right, fin, 

sei, and sperm whale, and has 

determined that this activity falls within 

the scope of activities analyzed in 

NMFS 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). 

Renewal 

NMFS has issued a renewal IHA to 

Attentive Energy for the take of 15 

species (comprising 16 stocks) of marine 

mammals incidental to conducting 

marine site characterization surveys 

offshore from New York to New Jersey 

in the BOEM Lease Area OCS–A–0538 

and associated ECR areas, which 

include the previously explained 

mitigation, monitoring, and reporting 

requirements. 


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77486 Federal Register / Vol. 89, No. 184 / Monday, September 23, 2024 / Notices 

Dated: September 18, 2024. 

Kimberly Damon-Randall, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2024–21670 Filed 9–20–24; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XE305] 

South Atlantic Fishery Management 

Council; Public Meetings 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of a public meeting. 

SUMMARY: The South Atlantic Fishery 

Management Council’s (Council) will 

hold a meeting of the Outreach and 

Communications Advisory Panel (AP) 

October 9–10, 2024. The meeting will be 

held in North Charleston, SC. 

DATES: The Outreach and 

Communications AP meeting will be 

held October 9, 2024, from 9 a.m. until 

5 p.m. and October 10, 2024, from 9 

a.m. until 12 p.m. 

ADDRESSES: 

Meeting address: The meeting will be 

held at the Embassy Suites by Hilton 

Charleston Airport, 5055 International 

Blvd., North Charleston, SC 29418; 

phone: (843) 747–1882. The meeting is 

open to the public and will also be 

available via webinar. 

Webinar registration, an online public 

comment form, and briefing book 

materials will be available two weeks 

prior to the meeting at: https://

safmc.net/advisory-panel-meetings/. 

Council address: South Atlantic 

Fishery Management Council, 4055 

Faber Place Drive, Suite 201, North 

Charleston, SC 29405. 

FOR FURTHER INFORMATION CONTACT: Kim 

Iverson, Public Information Officer, 

SAFMC; phone: (843) 571–4366 or toll 

free: (866) SAFMC–10; fax: (843) 769– 

4520; email: kim.iverson@safmc.net. 

SUPPLEMENTARY INFORMATION: Agenda 

items for the Outreach and 

Communications AP meeting include: 

updates from AP members on recent 

outreach and communication efforts and 

needs; update on the Council’s Best 

Fishing Practices Program and the 

Citizen Science Program and projects; a 

review of the Council’s draft Habitat 

Blueprint relative to outreach and 

communication needs; and an update 

on the Council’s digital communications 

efforts and needs. AP members will also 

receive an update on port meetings 

conducted for the mackerel fishery in 

2024 and plans to conduct stakeholder 

meetings in 2025. The AP will review 

draft outreach documents being 

developed for the upcoming 50th 

anniversary of the regional fishery 

management councils and the 

Magnuson-Stevens Fishery 

Conservation and Management Act. The 

AP will address other business as 

needed and provide recommendations 

for Council consideration. 

Special Accommodations 

These meetings are physically 

accessible to people with disabilities. 

Requests for auxiliary aids should be 

directed to the Council office (see 

ADDRESSES) 5 days prior to the meeting. 

Note: The times and sequence specified in 

this agenda are subject to change. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: September 18, 2024. 

Rey Israel Marquez, 

Acting Deputy Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2024–21691 Filed 9–20–24; 8:45 am] 

BILLING CODE 3510–22–P 

COMMITTEE FOR THE 

IMPLEMENTATION OF TEXTILE 

AGREEMENTS 

Determination Under the Textile and 

Apparel Commercial Availability 

Provision of the Dominican RepublicCentral America-United States Free 

Trade Agreement (‘‘CAFTA–DR’’) 

AGENCY: The Committee for the 

Implementation of Textile Agreements. 

ACTION: Determination to add a product 

in unrestricted quantities to Annex 3.25 

of the CAFTA–DR. 

SUMMARY: The Committee for the 

Implementation of Textile Agreements 

(‘‘CITA’’) has determined that certain 

two-way stretch woven polyester, rayon, 

spandex fabric, as specified below, is 

not available in commercial quantities 

in a timely manner in the CAFTA–DR 

countries. The product is added to the 

list in Annex 3.25 of the CAFTA–DR in 

unrestricted quantities. 

DATES: Applicable Date: September 23, 

2024. 

ADDRESSES: https://otexaprod.trade.gov/ 

otexacapublicsite/requests/cafta under 

‘‘Approved Requests,’’ File Number: 

CA2024004. 

FOR FURTHER INFORMATION CONTACT: 

Kayla Johnson, Office of Textiles and 

Apparel, U.S. Department of Commerce, 

(202) 482–2532 or Kayla.Johnson@

trade.gov. 

SUPPLEMENTARY INFORMATION: 

Authority: The CAFTA–DR; Section 

203(o)(4) of the Dominican RepublicCentral America-United States Free 

Trade Agreement Implementation Act 

(‘‘CAFTA–DR Implementation Act’’), 

Public Law 109–53; the Statement of 

Administrative Action accompanying 

the CAFTA–DR Implementation Act; 

and Presidential Proclamation 7987 

(February 28, 2006). 

Background: The CAFTA–DR 

provides a list in Annex 3.25 for fabrics, 

yarns, and fibers that the Parties to the 

CAFTA–DR have determined are not 

available in commercial quantities in a 

timely manner in the territory of any 

Party. The CAFTA–DR provides that 

this list may be modified pursuant to 

Article 3.25.4, when the United States 

determines that a fabric, yarn, or fiber is 

not available in commercial quantities 

in a timely manner in the territory of 

any Party. See Annex 3.25 of the 

CAFTA–DR; see also section 

203(o)(4)(C) of the CAFTA–DR 

Implementation Act. 

The CAFTA–DR Implementation Act 

requires the President to establish 

procedures governing the submission of 

a request and providing opportunity for 

interested entities to submit comments 

and supporting evidence before a 

commercial availability determination is 

made. In Presidential Proclamation 

7987, the President delegated to CITA 

the authority under section 203(o)(4) of 

CAFTA–DR Implementation Act for 

modifying the Annex 3.25 list. Pursuant 

to this authority, on September 15, 

2008, CITA published modified 

procedures it would follow in 

considering requests to modify the 

Annex 3.25 list of products determined 

to be not commercially available in the 

territory of any Party to the CAFTA–DR 

(Modifications to Procedures for 

Considering Requests Under the 

Commercial Availability Provision of 

the Dominican Republic-Central 

America-United States Free Trade 

Agreement, 73 FR 53200) (‘‘CITA’s 

Procedures’’). 

On August 12, 2024, CITA received a 

Commercial Availability Request 

(‘‘Request’’) from CFI Textiles (‘‘CFI’’) 

for certain two-way stretch woven 

polyester, rayon, spandex fabric, as 

specified below. On August 14, 2024, in 

accordance with CITA’s Procedures, 

CITA notified interested parties of the 

Request, which was posted on the 

dedicated website for CAFTA–DR 

Commercial Availability proceedings. In 

its notification, CITA advised that any 

Response with an Offer to Supply 


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