[Federal Register Volume 89, Number 184 (Monday, September 23, 2024)]
[Notices]
[Pages 77479-77486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21670]



[[Page 77479]]

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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.

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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 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-other-energy-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 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:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal IHA effective date (recognizing that the renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
    <bullet> An explanation that the activities to be conducted under 
the requested renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
    <bullet> A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected 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 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

[[Page 77480]]

Energy also provided a final monitoring report (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-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 
(N<INF>best</INF>) of North Atlantic right whales from 338 to 340 and 
annual mortality and serious injury from 31.2 to 27.2. The updated 
population estimate in the draft 2023 SAR is based upon sighting 
history through December 2021 (89 FR 5495, January 29, 2024). Total 
annual average observed North Atlantic right whale mortality during the 
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

[[Page 77481]]

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
----------------------------------------------------------------------------------------------------------------
                                                                   Percentage of
                                                                     trackline      Authorized
                   Common name                      Population     remaining in   takes based on    Percent of
                                                     abundance       relevant        remaining      population
                                                                      habitat        trackline
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North Atlantic right whale......................             340              32               4            1.18
Fin whale.......................................           6,802              32              12            0.18
Humpback whale..................................           1,396              32               8            0.57
Minke whale.....................................          21,968              32              57            0.26
Sei whale.......................................           6,292              32               4            0.06
Sperm whale.....................................           5,895              32               1            0.02
Atlantic spotted dolphin........................          31,506              32              28            0.09
Atlantic white-sided dolphin....................          93,233              32              66            0.07
Bottlenose dolphin--Western North Atlantic                64,587              28             489            0.76
 Offshore.......................................
Bottlenose dolphin--Northern Migratory Coastal..           6,639              93             362            5.45
Common dolphin..................................          93,100              32             658            0.71
Long-finned pilot whale.........................          39,215              32               7            0.02
Risso's dolphin.................................          44,067              32               7            0.02
Harbor porpoise.................................          85,765              32             350            0.41
Gray seal.......................................          27,911              32             511            1.83
Harbor seal.....................................          61,336              32             511            0.83
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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:
    <bullet> Ramp-up: A ramp-up procedure would be used for geophysical 
survey equipment capable of adjusting energy levels (i.e., any acoustic 
source with a non-binary switch) at the start or re-start of survey 
activities;
    <bullet> Protected Species Observers (PSOs): A minimum of one NMFS-
approved PSO must be on duty and conducting visual observations at all 
times during daylight hours (i.e., from 30 minutes prior to sunrise 
through 30 minutes following sunset). Two PSOs would be on duty during 
nighttime operations;
    <bullet> Pre-Operation Clearance Protocols: Prior to initiating HRG 
survey activities, Attentive Energy would be required to implement a 
30-minute pre-operation clearance period. If any marine mammals are 
detected within the Exclusion Zones prior to or during ramp-up, the HRG 
equipment would be shut down (as described below);

[[Page 77482]]

    <bullet> Shutdown Zones: If an HRG source is active and a marine 
mammal is observed within or entering a relevant shutdown zone, an 
immediate shutdown of the HRG survey equipment would be required. We 
note that this shutdown requirement would be waived for certain genera 
of small delphinids (i.e., Delphinus, Lagenorhynchus, Stenella, or 
Tursiops) and pinnipeds;
    <bullet> Vessel Strike Avoidance Measures: 500 m (1,640 ft) 
separation distances for North Atlantic right whales and other large 
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
    <bullet> 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 non-
governmental 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-other-energy-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 
shore-based 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,

[[Page 77483]]

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,

[[Page 77484]]

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

[[Page 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 
causatively-associated 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.


[[Page 77486]]


    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