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[Federal Register Volume 89, Number 237 (Tuesday, December 10, 2024)]
[Notices]
[Pages 99227-99230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28994]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE475]

Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off Rhode Island and Massachusetts

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

ACTION: Notice; proposed modification of an incidental harassment 
authorization; request for comments.

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SUMMARY: NMFS is proposing to modify an existing incidental harassment 
authorization (IHA) issued to Bay State Wind, LLC (Bay State Wind) on 
October 3, 2024, authorizing take of marine mammals incidental to 
marine site characterization surveys conducted off the coasts of Rhode 
Island and Massachusetts in the Bureau of Ocean Energy Management 
(BOEM) Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0500 
and the associated export cable route (ECR) area. While conducting said 
marine site characterization surveys, Bay State Wind has encountered 
common dolphins (Delphinus delphis) at a rate greater than anticipated 
under the analysis for that IHA and, therefore, requests that NMFS 
modify the IHA to increase the number of authorized take by Level B 
harassment for that species only. No other changes to the IHA were 
requested or are proposed herein, and the expiration date remains 
unchanged. NMFS will consider public comments on the requested 
modification prior to making any final decision and agency responses 
will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than December 
26, 2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments

[[Page 99228]]

received are a part of the public record and will generally be posted 
online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All 
personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

FOR FURTHER INFORMATION CONTACT: Rachel Hilt, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), as well as a list of the references cited in this 
document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the 
contact listed above.

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 issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    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 in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.

History of Request

    On March 27, 2024, NMFS received a request from Bay State Wind for 
an IHA to take marine mammals incidental to conducting high-resolution 
geophysical (HRG) surveys off the coasts of Rhode Island and 
Massachusetts in OCS-A 0500 (i.e., [Oslash]rsted's planned Bay State 
Wind development) and the associated ECR area. Following NMFS' review 
of the application, Bay State Wind submitted a revised version on June 
10, 2024. After additional NMFS review of the revised application, Bay 
State Wind submitted another revised version on July 29, 2024. That 
application was deemed adequate and complete on August 1, 2024. Bay 
State Wind's request was for the take of 17 species of marine mammals 
by Level B harassment only. Notice of proposed IHA and request for 
comments were published in the Federal Register on August 21, 2024 (89 
FR 67597). The IHA was issued on October 3, 2024 (89 FR 81458, October 
8, 2024), with effective dates October 6, 2024 to October 5, 2025.
    On November 1, 2024, NMFS received a request from Bay State Wind 
for a modification to the existing IHA. Bay State Wind informed NMFS 
that they were encountering common dolphins during the marine site 
characterization surveys at a rate greater than anticipated. Bay State 
Wind expressed concern that this elevated encounter rate could 
potentially result in the authorized take for common dolphins being 
exceeded. Therefore, Bay State Wind requested that NMFS modify the 
existing IHA by increasing the number of authorized take of that 
species only. NMFS is proposing to modify the IHA to increase the 
number of authorized take by Level B harassment of common dolphin only. 
No other changes to the IHA are proposed.

Description of the Proposed Activity and Anticipated Impacts

    The proposed modified IHA would include the same HRG surveys in the 
same geographic locations that were described in the analysis for the 
initial IHA. The nature of the specified activity that could result in 
take of marine mammals (i.e., underwater sound from Bay State Wind's 
marine site characterization surveys), including the types of equipment 
planned for use, the methods, the duration of the specified activity 
(up to 350 survey days in one year), and number of vessels planned for 
use are identical to those previously analyzed. The mitigation, 
monitoring, and reporting measures, as well as the expiration date of 
the IHA, also remain the same. With the exception of the number of 
estimated take of common dolphin, no increased number of take of other 
species is estimated or proposed for authorization. NMFS refers the 
reader to the documents related to the initial IHA issued on October 3, 
2024 (89 FR 81458, October 8, 2024), for more detailed description of 
the project activities. Other relevant documents include the notice of 
proposed IHA and request for comments (89 FR 67597, August 21, 2024).

Detailed Description of the Action

    A detailed description of the survey activities is found in these 
previous documents. The location, timing, and nature of the activities, 
including the types of HRG equipment planned for use, daily trackline 
distances and number of survey vessels (four) are identical to those 
described in the previous notices.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
is found in these previous documents, which remains applicable to the 
proposed issuance of the modified IHA as well. In addition, NMFS has 
reviewed recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and recent scientific literature, and 
determined that no new information affects our original analysis of 
impacts under the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the initial IHA (89 FR 81458, October 8, 2024), which 
remains applicable to the issuance of the modified IHA. There is no new 
information on potential effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notice of IHA for the 
initial authorization (89 FR 81458, October 8, 2024). The HRG equipment 
that may result in take, as well as the source levels, marine mammal 
stocks taken, marine mammal density data, and the methods of take 
estimation applicable to this authorization remain unchanged from the 
initial IHA. With the exception of the common dolphin, the number of 
estimated take of marine mammal species remains unchanged.
    The initial IHA issued to Bay State Wind on October 3, 2024 (89 FR 
81458,

[[Page 99229]]

October 8, 2024) authorized take of 17 species of marine mammals, 
including 1,485 common dolphins, incidental to marine site 
characterization surveys conducted in the Lease Area and ECR over the 
course of a single year, requiring up to 350 survey days. The take 
estimate, used to calculate the number of authorized take for each 
species, was based on the best available scientific evidence, including 
sighting data from Protected Species Observer (PSO) reports (Smultea 
Environmental Sciences, 2020) and NOAA's Atlantic Marine Assessment 
Program for Protected Species (AMAPPS) (https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) group sizes. AMAPPS group sizes are based 
on data from a multi-agency research program, including seasonal 
distribution and abundance data collected over multiple years using 
aerial and shipboard surveys. Bay State Wind commenced survey 
activities on October 6, 2024. After 20 days of surveys, Bay State Wind 
had recorded 1,045 common dolphins within the estimated Level B 
harassment zone (as shown in table 1). Sighting events have included 
group sizes ranging from 3 to 110 with a mean group size 32.6. All 
potential exposures have been reported from a single vessel working in 
water depths averaging 45 meters, and detections of this species have 
occurred nearly daily, and often multiple times per day. Many of the 
observed common dolphin encounters have included animals approaching 
the vessel for both bow riding and swimming alongside as well as 
foraging in the area. The duration of these sighting events have varied 
from several minutes to many hours.

                                  Table 1--Common Dolphin Detection Events During Bay State Wind HRG Survey Activities
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                                                                                                                                Average group size for
 Total number of common    Total number of groups within   Total number of dolphins within    Min pod size     Max pod size    detections within Level B
dolphin detection events      Level B harassment zone          Level B harassment zone                                              harassment zone
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                   55                              38                             1,045                3              110                        32.6
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    According to Roberts et al. (2023) monthly marine mammal density 
data, estimated common dolphin occurrence in the region appears to be 
seasonal with the highest monthly density occurring during the months 
of October (0.1652 animals km- 2\2\) and September (0.1224 
km- 2). Density data for the months of November and December 
begin to decrease (0.1034 km- 2 and 0.1155 km- 2 
respectively). Density for the months of January-August decreases 
further and remains under 0.0800 km- 2. Density does not 
exceed 0.0800 km- 2until the month of September.
    The 1,045 common dolphin sightings over 20 days averages to 
approximately 52 sightings per day. This high number of sightings is 
unanticipated and has occurred during the month of October when, as 
previously mentioned, common dolphin density is expected to be highest. 
As the common dolphin density is expected to decrease in November and 
December (0.1034 km- 2 and 0.1155 km- 2, 
respectively) and remain relatively low (below 0.0800 km- 2) 
through the month of August. NMFS anticipates the encounter rate will 
likely subside after the peak density in October (0.1652 animals 
km- 2) and September (0.1224 km- 2). Given the 
expected decrease in common dolphin encounter rate, Bay State Wind has 
requested authorization of an additional 1,485 additional takes for the 
remaining 330 survey days. NMFS concurs and is proposing to modify the 
IHA to increase the total number of authorized take of common dolphin 
by Level B harassment from 1,485 to 2,970. The proposed updated total 
take represents 3.2 percent (table 2) of the best available abundance 
estimate for the western North Atlantic stock of common dolphin. The 
expiration date of the IHA would remain unchanged (October 5, 2025). 
Authorized takes remain unchanged for all other marine mammal species.

    Table 2--Total Numbers of Authorized Takes by Level B Harassment of Common Dolphin and as a Percentage of
                                                   Population
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                                                                          Totals
                                        ------------------------------------------------------------------------
                Species                                            Stock abundance (CV,     Instances of take as
                                           Take authorization       Nmin, most recent          percentage of
                                                 (No.)            abundance survey) \1\          population
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Common dolphin.........................                 2,970   93,100 (0.56, 59,897,                      3.20
                                                                 2021).
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\1\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum
  estimate of stock abundance.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures described here 
are identical to those included in the Federal Register notices 
announcing the issuance of the initial IHA authorization (89 FR 81458, 
October 8, 2024) as well as the discussions of the least practicable 
adverse impact included in those documents remain accurate.

Preliminary Determinations

    Bay State Wind's survey activities and the mitigation, monitoring, 
and reporting requirements are unchanged from those covered in the 
initial IHA. The effects of the activity, taking into consideration the 
mitigation and related monitoring measures, remain unchanged from those 
stated in the initial IHA, notwithstanding the increase to the 
authorized amount of common dolphin take. Specifically, the Level B 
harassment authorized for common dolphins is expected to be of low 
severity, predominantly in the form of behavioral disturbance (i.e., 
avoidance of the sound source and potential occasional interruption of 
foraging). With approximately 330 survey days remaining, NMFS is 
proposing to increase authorized common dolphin take by Level B

[[Page 99230]]

harassment from 1,485 to 2,970. Even in consideration of the increased 
estimated numbers of take by Level B harassment, the impacts of these 
lower severity exposures are not expected to adversely impact the 
fitness of any individuals, and, therefore no impacts are expected to 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival. Further, the proposed take amount of common 
dolphin still would be of small numbers relative to the population size 
(3.2 percent) as take is less than one third of the species or stock 
abundance which is considered by NMFS to be small numbers. In 
conclusion, there is no new information suggesting that our effects 
analysis or negligible impact finding for common dolphins should 
change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily reaffirmed the following: (1) the 
required mitigation measures will affect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the proposed authorized takes represent 
small numbers of marine mammals relative to the affected stock 
abundances; and (4) Bay State Wind's activities will not have an 
unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and (5) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act (ESA)

    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 OPR consults 
internally whenever we propose to authorize take for endangered or 
threatened species.
    For the initial IHA, NMFS Office of Protected Resources 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 determined that these activities fall within the scope of 
activities analyzed in Greater Atlantic Regional Fisheries Office'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). This modification of 
the IHA does not modify or change any take of listed species and 
therefore the prior determination remains unchanged.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the modification of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs 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 has 
preliminarily determined that the issuance of the modified IHA 
continues to qualify to be categorically excluded from further NEPA 
review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
modify the IHA to Bay State Wind for incidental take of marine mammals 
associated with marine site characterization surveys off the coast of 
Rhode Island and Massachusetts effective from the date of issuance 
until October 5, 2025. The only change is an increase in the authorized 
take by Level B harassment of common dolphins from 1,485 to 2,970. The 
previously described mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed modified IHA can be found at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Request for Public Comments

    We request comment on our proposed modification of the IHA for Bay 
State Wind's marine site characterization surveys. We also request 
comment on the potential for renewal of this proposed IHA as described 
in the paragraph below. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.

    Dated: December 5, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-28994 Filed 12-9-24; 8:45 am]
BILLING CODE 3510-22-P
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