Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys off of New York and New Jersey, 16327-16332 [2021-06423]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 58 (Monday, March 29, 2021)]
[Notices]
[Pages 16327-16332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06423]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA923]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys off of New York and New Jersey

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

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

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SUMMARY: NMFS received a request from Atlantic Shores Offshore Wind, 
LLC (Atlantic Shores), for the renewal of their currently active 2020 
incidental harassment authorization (IHA) to take marine mammals 
incidental to marine site characterization surveys off the coasts of 
New York and New Jersey in the area of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0499) and along potential submarine cable 
routes to a landfall location in New York or New Jersey. These 
activities for which Atlantic Shores has requested a renewal IHA are 
identical to those covered in the initial IHA, which is currently 
active and expires on April 19, 2020. Pursuant to the Marine Mammal 
Protection Act (MMPA), prior to issuing the initial IHA in 2020, NMFS 
requested comments on both the proposed IHA and the potential for 
renewing the initial authorization if certain requirements were 
satisfied. The renewal requirements have been satisfied, and NMFS is 
now providing an additional 15-day comment period to allow for any 
additional comments on the proposed renewal not previously provided 
during the initial 30-day comment period. If issued, the renewal IHA 
would be effective April 20, 2021 through April 19, 2022.

DATES: Comments and information must be received no later than April 
13, 2021.

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

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, renewal request, and supporting documents (including 
Federal Register notices of the initial proposed and final 
authorizations and issued 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

[[Page 16328]]

issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization is 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 here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 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 authorization, 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 
Description of the Specified Activities and Anticipated Impacts section 
is planned or (2) the activities as described in the Description of the 
Specified Activities and Anticipated Impacts section would not be 
completed by the time the IHA expires and a renewal would allow for 
completion of the activities beyond that described in the Dates and 
Duration section of the initial IHA Federal Register notice (85 FR 
21198, April 10, 2020), provided all of the following conditions are 
met:
     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 one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) 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).
    (2) 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.
    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: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

    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 evaluate our proposed action (i.e., issuance of incidental 
harassment authorization) and alternatives with respect to potential 
impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 of the Companion Manual for NAO 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 proposed action qualifies to be 
categorically excluded from further NEPA review.
    Information in Atlantic Shores' application and this notice 
collectively provide the environmental information related to proposed 
issuance of these regulations and subsequent incidental take 
authorization for public review and comment. We will review all 
comments submitted in response to this notice prior to concluding our 
NEPA process or making a final decision on the request for incidental 
take authorization.

History of Request

    On April 10, 2020, NMFS issued an IHA to Atlantic Shores to take 
marine mammals incidental to marine site characterization surveys off 
the coast of New York and New Jersey (85 FR 21198), effective from 
April 20, 2020 through April 19, 2021. On February 3, 2021, NMFS 
received a request from Atlantic Shores for the renewal of that initial 
IHA so that Atlantic Shores can continue its survey activities beyond 
April 19, 2021. As described in the request for the renewal IHA, the 
activities for which incidental take is requested are identical to 
those covered in the initial authorization. As required, the applicant 
also provided a preliminary monitoring report (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization) which confirms 
that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted.

Description of the Specified Activities and Anticipated Impacts

    Atlantic Shores proposes to conduct a second year of marine site 
characterization surveys, consisting of high-resolution geophysical 
(HRG) and geotechnical surveys, within the 183,353-acre Lease Area, 
located approximately 18 nautical miles southeast of Atlantic City, New 
Jersey, and proposed Export Cable Route (ECRs) corridors from the Lease 
Area to shore landing locations along the coast of New Jersey and New 
York. The purpose of the HRG and geotechnical

[[Page 16329]]

surveys is to support site characterization, siting, and engineering 
design of offshore Project facilities including wind turbine generators 
(WTGs), offshore substation(s), and submarine cables within the Lease 
Area and proposed ECR Areas. Atlantic Shores requested renewal of the 
initial IHA that was issued by NMFS in April 2020 on the basis that (1) 
up to another year of identical or nearly identical, activities as 
described in the Specified Activities section of the initial IHA is 
planned and, (2) the activities as described in the Specified 
Activities section of the initial IHA would not be completed by the 
time the IHA expires and a renewal would allow for completion of the 
activities beyond that described in the Dates and Duration section of 
the initial IHA.
    In their 2020 IHA application, Atlantic Shores estimated it would 
conduct surveys for 350 days at a rate of 85 kilometers (km) per day 
for a total of 29,750 km. However, in 2020, Atlantic Shores completed 
only 16,893 km of geophysical surveys; therefore, approximately 12,857 
km remain to be surveyed. Atlantic Shores also recognized they were 
able to survey approximately 55 km per day versus the predicted rate of 
85 km per day considered in the initial IHA. Therefore, Atlantic Shores 
predicts the 12,857 km of survey planned in 2021 under the renewal IHA 
will occur over 234 days (12,857 km/55 km per day). The renewal IHA 
would authorize harassment to marine mammals for this remaining survey 
distance using survey methods identical to those described in the 
initial IHA application, hence the anticipated effects on marine 
mammals remain the same as well. All active acoustic sources and 
mitigation and monitoring measures would remain as described in the 
initial IHA. The amount of take requested for the renewal IHA reflects 
the amount of remaining work in consideration of marine mammal 
monitoring data from the 2020 survey season resulting in equal or less 
take than that authorized in the initial IHA.

Detailed Description of the Activity

    A detailed description of the survey activities for which take is 
proposed here may be found in the Federal Register notices of the 
proposed IHA (85 FR 7926, February 12, 2020) and issued IHA (85 FR 
21198, April 10, 2020) for the initial authorization. As described 
above, Atlantic Shores is not able to complete the survey activities 
analyzed in the initial IHA by the date the IHA is set to expire (April 
19, 2021). As such, the surveys Atlantic Shores proposes to conduct 
under this renewal would be a continuation of the surveys as described 
in the initial IHA. The location and nature of the activities, 
including the types of equipment planned for use, are identical to 
those described in the previous notices. Because part of the work has 
already been completed, the duration of the surveys conducted under the 
renewal IHA will occur over less time than that described for the 
initial IHA (234 days versus 350 days); however, Atlantic Shores will 
continue to operate 24 hours per day to complete the work. Atlantic 
Shores proposes to continue its activities on April 20, 2021, after the 
initial IHA expires on April 19. The proposed renewal would be 
effective for a period of one year from the date of issuance.

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 (85 FR 7926, February 12, 2020). NMFS has reviewed the 
monitoring data from the initial IHA, recent draft Stock Assessment 
Reports, information on relevant Unusual Mortality Events, and other 
scientific literature, and determined that neither this nor any other 
new information affects which species or stocks have the potential to 
be affected or the pertinent information in the Description of the 
Marine Mammals in the Area of Specified Activities contained in the 
supporting documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Federal Register notice of the 
proposed IHA for the initial authorization (85 FR 7926, February 12, 
2020). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects our initial analysis 
of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods used to estimate take for the 
specified activity are found in the Federal Register notices of the 
proposed and final IHA for the initial authorization. The acoustic 
source types, as well as source levels and marine mammal density and 
occurrence data applicable to this authorization remain unchanged from 
the initial IHA. Similarly, the stocks taken, methods of take, and type 
of take (i.e., Level B harassment only) remain unchanged from the 
initial IHA.
    In the initial IHA application submitted in 2019 for the 2020 HRG 
survey activities, Atlantic Shores used the following parameters to 
estimate the potential for take: (1) Maximum number of days of survey 
that could occur over a 12-month period in each of the identified 
survey areas; (2) maximum distance each vessel could travel per 24-hour 
period in each of the identified survey areas; (3) maximum ensonified 
area (zone of influence (ZOI)); and (4) maximum marine mammal densities 
for any given season that a survey could occur. The calculated radial 
distances to the Level B harassment threshold (160 decibel (dB) root 
mean square (rms)) from a survey vessel are included in Table 1.

Table 1--Modeled Radial Distances From HRG Survey Equipment to Isopleths
  Corresponding to Level A Harassment and Level B Harassment Thresholds
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                                                       Distance to level
                     Sound source                         B harassment
                                                         threshold (m)
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Kongsberg EA 400.....................................                172
Teledyne ODOM Echotrac CVM...........................                173
Applied Acoustics Dura-Spark 240.....................                372
Edgetech 2000-DSS....................................                  4

[[Page 16330]]

 
Edgetech 216.........................................                  5
Edgetech 424.........................................                  6
Edgetech 512i........................................                  7
Teledyne Benthos Chirp III...........................                 71
Kongsberg GeoPulse...................................                231
Innomar SES-2000 Medium-100 Parametric...............                116
Applied Acoustics S-Boom Triple Plate................                 97
Applied Acoustics S-Boom.............................                 56
------------------------------------------------------------------------

    The equation for estimating take for all species remains the same 
as the initial IHA:

Estimated Take = D x ZOI x # of days
Where: D = species density (per km\2\) and ZOI = maximum daily 
ensonified area

    In the original 2019 IHA application, Atlantic Shores calculated a 
conservative ZOI by applying the maximum radial distance for any 
category and type of HRG survey equipment considered in its assessment 
to the mobile source ZOI calculation. This maximum calculated distance 
to the Level B harassment threshold for the sparker of 372 m was also 
used to calculate the ZOI for the requested extension. The resulting 
ZOI is 41.36 square kilometers (km\2\).
    This methodology of calculating take in the initial IHA applies to 
the proposed renewal IHA for all species, with the only difference 
being the fewer amount of days (i.e., 234 versus 350). The result is 
that the amount of take is reduced proportionally to the reduction in 
the number of days of work remaining. As was done in the initial IHA, 
in some cases, Atlantic Shores has requested a deviation from the 
calculated take for some species given it does not account for group 
size. In other cases, the requested amount of proposed take deviates 
from the calculated take based on observations during the 2020 surveys. 
Other than in the instances described below, NMFS agrees with Atlantic 
Shores' request for take and we propose to authorize the same amount of 
take as described in their request.
    As described in the renewal IHA request, large groups of common 
dolphins commonly approached the HRG survey vessels to bow ride during 
the 2020 surveys. Despite completing approximately 56.7 percent of the 
planned survey distance, Atlantic Shores reported using 67.3 percent of 
total take authorized in the initial IHA for this species. In 2019, the 
IHA application used seasonal density data to calculate requested take 
for 544 common dolphins. However, 2020 survey activities resulted in 
366 takes accumulated for this species, which involved 58 common 
dolphin detection events where the mean pod size reported was 6.79. For 
the 2021 surveys, Atlantic Shores is requesting 406 common dolphin 
takes based on an encounter rate similar to that observed in 2020 (58 
detection events x 7 animals/group). However, NMFS proposes to 
authorize the same amount of take of common dolphins as authorized in 
the initial IHA (544). Recently, NMFS has modified or proposed to 
modify other HRG IHAs in the same geographic region due to 
underestimates of take for bowriding dolphins (e.g., 86 FR 13695, March 
10, 2021; 85 FR 55415, September 8, 2020). Because of these 
experiences, we have determined this approach is necessary to ensure 
take is not exceeded.
    In the initial IHA application, Atlantic Shores also adjusted 
calculated take (per the equation above) to consider group size for 
Risso's dolphin, Atlantic spotted dolphins, and long-finned pilot 
whales. As described in Atlantic Shores' interim monitoring report, 
they did not observe any of these species during the 2020 surveys. 
Therefore, we have carried over the same amount of take as proposed in 
the initial IHA. Atlantic Shores is also requesting the same amount of 
sei whale take as authorized in the previous IHA based on an encounter 
during 2020 survey operations where a single sei whale surfaced inside 
the Level B exposure zone resulting in a take.
    Finally, during consideration of this renewal request, an error in 
the application information supporting the harbor porpoise take 
estimate was identified. Specifically, the density for harbor porpoise 
was accurate; however, the calculated take for each lease area was 
incorrectly reported which led to an inaccurate total take amount. The 
amount of take authorized in the 2020 IHA was 115 when it should have 
been 847 based on the method used. The correct take estimate for the 
remaining survey lines covered under the renewal, using that same 
method, would be 266 takes of harbor porpoise. However, zero harbor 
porpoises were detected during the 2020 surveys, suggesting that the 
corrected estimate would likely be an overestimate and the number of 
takes authorized in the initial IHA is sufficient, and therefore NMFS 
proposes to authorize the same number of harbor porpoise take included 
in the initial IHA (115).

                       Table 2--Initial IHA Take Authorized and Renewal IHA Proposed Take
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                                                                        Level B harassment
                                                                 --------------------------------
                             Species                                   Take                         Percent of
                                                                    authorized     Proposed take  Population \5\
                                                                    initial IHA     renewal IHA
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North Atlantic right whale......................................               9               8             1.9
Humpback whale..................................................              18               8              <1
Fin whale.......................................................              20               9              <1
Sei whale.......................................................               2           \1\ 2              <1

[[Page 16331]]

 
Minke whale.....................................................               9               5              <1
Sperm whale.....................................................               3               1              <1
Long-finned pilot whale.........................................               6           \2\ 6              <1
Bottlenose dolphin (W.N. Atlantic Coastal Migratory)............           1,102             663             9.9
Bottlenose dolphin (W.N. Atlantic Offshore).....................           5,113            2408             3.8
Common dolphin..................................................             544         \3\ 544              <1
Atlantic white-sided dolphin....................................              82          \4\ 42              <1
Atlantic spotted dolphin........................................             100          \2\ 50              <1
Risso's Dolphin.................................................               6           \2\ 6              <1
Harbor porpoise.................................................             115         \2\ 115              <1
Harbor seal.....................................................           1,404             529              <1
Gray seal.......................................................           1,404             529             1.9
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\1\ Adjusted from 1 to 2 animals based on 2020 field observations.
\2\ Adjusted from calculated and requested take considering these species were not observed during the 2020
  surveys.
\3\ Atlantic Shores requested fewer takes than proposed here; however, we propose authorizing the same amount of
  take authorized in the initial IHA to account for the propensity for this species to bowride and travel in
  large groups.
\4\ Adjusted from calculated take to account for group size.
\5\ Population numbers in the initial IHA were generated from the Draft 2020 Stock Assessment Reports and remain
  valid to calculate percent of population here (NMFS, 2021).

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed 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 (85 FR 21198, April 10, 2020), and the discussion of how we 
reached a least practicable adverse impact determination included in 
that document remains applicable. All mitigation, monitoring and 
reporting measures in the initial IHA are carried over to this proposed 
renewal IHA and summarized here:
     Ramp-up: A ramp-up procedure would be used for geophysical 
survey equipment capable of adjusting energy levels at the start or re-
start of survey activities.
     Protected Species Observers: A minimum of one NMFS-
approved Protected Species Observer (PSO) must 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) and 30 minutes prior to and during nighttime ramp-ups of HRG 
equipment.
     Exclusion Zones (EZ): Marine mammal EZ would be 
established around the HRG survey equipment and monitored by PSO during 
HRG surveys as follows: A 500-m EZ would be required for North Atlantic 
right whales and a 100-m EZ would be required for all other marine 
mammals.
     Pre-Operation Clearance Protocols: Prior to initiating HRG 
survey activities, Atlantic Shores would implement a 30-minute pre-
operation clearance period. Ramp-up of the survey equipment would not 
begin until the relevant EZs have been cleared by the PSOs, as 
described above. HRG equipment would be initiated at their lowest power 
output and would be incrementally increased to full power. If any 
marine mammals are detected within the EZs prior to or during ramp-up, 
the HRG equipment would be shut down (as described below).
     Shutdown of HRG Equipment: If an HRG source is active and 
a marine mammal is observed within or entering a relevant EZ (as 
described above) an immediate shutdown of the HRG survey equipment 
would be required. Note this shutdown requirement would be waived for 
certain genera of small delphinids.
     Vessel strike avoidance measures: Separation distances for 
large whales (500 m NAWRD, 100 m other large whales; 50 m other 
cetaceans and pinnipeds); restricted vessel speeds and operational 
maneuvers.
     Reporting: Atlantic Shores will submit a marine mammal 
report within 90 days following completion of the surveys.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (85 
FR 7926, February 12, 2020) and solicited public comments on both our 
proposal to issue the initial IHA for marine site characterization 
surveys and on the potential for a renewal IHA, should certain 
requirements be met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (85 FR 21198; April 10, 2020). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
Renewal of the 2020 IHA.
    The Marine Mammal Commission (the Commission) was concerned that 
the renewal process is inconsistent with the statutory requirements 
under section 101(a)(5)(D) of the MMPA. As such, the Commission 
recommended that NMFS refrain from issuing renewals for any 
authorization and instead use its abbreviated Federal Register notice 
process.
    The notice of the proposed initial IHA expressly notified and 
invited comment from the public on the possibility that under certain, 
limited conditions the applicant could seek a renewal IHA for an 
additional year. The notice described the conditions under which such a 
renewal request could be considered and expressly sought public comment 
in the event such a renewal were sought. Further, since issuance of the 
initial IHA NMFS has modified the renewal process to provide notice 
through the Federal Register and an additional 15-day public comment 
period at the time the renewal IHA is requested. NMFS also will provide 
direct notice of the proposed renewal to those who commented on the 
initial IHA, to provide an opportunity to submit any additional 
comments. Therefore, the renewal process is consistent with section 
101(a)(5)(D) of the MMPA and NMFS will continue to utilize this 
effective and efficient process provided the renewal criteria are met.

[[Page 16332]]

    The Commission was also concerned that NMFS had not explicitly 
identified that a 1 year renewal IHA was a one-time opportunity in our 
Federal Register notices nor on our website. NMFS has since identified 
in Federal Register notices and on our website that a renewal IHA is 
one time opportunity.

Preliminary Determinations

    The survey activities proposed by Atlantic Shores are identical to 
(and a subset of) those analyzed in the initial IHA, as are the method 
of taking and the effects of the action. The mitigation measures and 
monitoring and reporting requirements as described above are also 
identical to the initial IHA. The planned number of days of activity 
will be reduced given the completion of a small portion of the 
originally planned work. Therefore, the amount of take proposed is 
equal to or less than that authorized in the initial IHA. The potential 
effect of Atlantic Shores' activities remains limited to Level B 
harassment in the form of behavioral disturbance. In analyzing the 
effects of the activities in the initial IHA, NMFS determined that 
Atlantic Shores' activities would have a negligible impact on the 
affected species or stocks and that the authorized take numbers of each 
species or stock were small relative to the relevant stocks (e.g., less 
than one-third of the abundance of all stocks).
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) The required mitigation measures will effect the least 
practicable impact on marine mammal species or stocks and their 
habitat; (2) the authorized takes will have a negligible impact on the 
affected marine mammal species or stocks; (3) the authorized takes 
represent small numbers of marine mammals relative to the affected 
stock abundances; (4) Atlantic Shore's activities will not have an 
unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and; (5) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take for endangered or threatened species.
    The NMFS Office of Protected Resources is proposing to authorize 
the incidental take of four species of marine mammals which are listed 
under the ESA: The North Atlantic right, fin, sei, and sperm whale. The 
Bureau of Ocean Energy Management (BOEM) and U.S. Army Corps of 
Engineers consulted with NMFS Greater Atlantic Regional Office (GARFO) 
under section 7 of the ESA on commercial wind lease issuance and site 
assessment activities on the Atlantic Outer Continental Shelf in 
Massachusetts, Rhode Island, New York and New Jersey Wind Energy Areas. 
The resulting Biological Opinion, issued on April 10, 2013, concluded 
the proposed action may adversely affect but is not likely to 
jeopardize the continued existence of the four aforementioned species.
    On April 13, 2020, GARFO determined that the 2013 Biological 
Opinion remained valid for issuance of Atlantic Shores' initial IHA and 
that the proposed MMPA authorization provides no new information about 
the effects of the action, nor does it change the extent of effects of 
the action, or any other basis to require reinitiation of the Opinion. 
Similarly, on March 3, 2021, GARFO concluded the same for issuance of 
the Renewal IHA to Atlantic Shores. Therefore, the 2013 Biological 
Opinion meets the requirements of section 7(a)(2) of the ESA and 
implementing regulations at 50 CFR 402 for our proposed action to issue 
an IHA under the MMPA, and no further consultation is required.
    The 2013 Biological Opinion and amended ITS can be found at 
www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to Atlantic Shores for conducting marine site 
characterization surveys off New York and New Jersey, effective from 
April 20, 2021 through April 19, 2022, provided the previously 
described mitigation, monitoring, and reporting requirements are 
incorporated. A draft of the proposed and initial IHA can be found at 
https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment on our analyses, 
the proposed Renewal IHA, and any other aspect of this Notice. Please 
include with your comments any supporting data or literature citations 
to help inform our final decision on the request for MMPA 
authorization.

    Dated: March 24, 2021.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-06423 Filed 3-26-21; 8:45 am]
BILLING CODE 3510-22-P