Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of Massachusetts, Rhode Island, Connecticut, and New York, 38296-38314 [2021-15383]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 136 (Tuesday, July 20, 2021)]
[Notices]
[Pages 38296-38314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15383]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB217]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Offshore of Massachusetts, Rhode Island, Connecticut, and New 
York

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

[[Page 38297]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of renewal incidental harassment 
authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA), as amended, notification is hereby given 
that NMFS has issued a Renewal incidental harassment authorization 
(IHA) to Vineyard Wind, LLC (Vineyard Wind) to incidentally harass 
marine mammals incidental to marine site characterization survey 
activities off the coast of Massachusetts in the areas of the 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS-A 0501 and OCS-A 0522) and along 
potential submarine cable routes to landfall locations in 
Massachusetts, Rhode Island, Connecticut, and New York.

DATES: This Renewal IHA is valid from July 15, 2021 through June 20, 
2022.

FOR FURTHER INFORMATION CONTACT: Reny Tyson Moore, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, renewal request, 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 Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are proposed 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 one 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. Specifically, on a case-by-
case basis, NMFS may issue a one-time one-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, 
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 Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice would not be completed by the time the initial IHA expires and a 
Renewal IHA would allow for completion of the activities beyond that 
described in the Dates section of the initial IHA issuance, 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 one year from expiration of 
the initial IHA);
    (2) The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested Renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take); and
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized;
    (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 IHA. 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.

History of Request

    On May 06, 2020, NMFS issued an IHA to Vineyard Wind to take marine 
mammals incidental to marine site characterization survey activities 
off the coast of Massachusetts in the areas of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0501 and OCS-A 0522) and along potential 
submarine cable routes to landfall locations in Massachusetts, Rhode 
Island, Connecticut, and New York (85 FR 26940), effective from June 
01, 2020 through May 31, 2021. This IHA was re-issued on July 14, 2020 
with the only change being a change in effective dates from June 21, 
2020 through June 20, 2021 (85 FR 42357). On March 25, 2021, NMFS 
received an application for the Renewal IHA of the re-issued IHA. As 
described in the application for renewal, the activities for which 
incidental take is requested consist of activities that are covered by 
the initial authorization but will not be completed prior to its 
expiration. As required, the applicant also provided a preliminary 
monitoring report (available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act) 
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. The notice of the proposed

[[Page 38298]]

Renewal IHA was published on June 8, 2021 (86 FR 30442).

Description of the Specified Activities and Anticipated Impacts

    Vineyard Wind plans to conduct marine site characterization 
surveys, specifically high-resolution geophysical (HRG) surveys, in 
support of offshore wind development projects in the areas of 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (#OCS-A 0501 and #OCS-A 0522) (Lease Areas) 
and along potential submarine cable routes to landfall locations in 
Massachusetts, Rhode Island, Connecticut, and New York. The purpose of 
the marine site characterization surveys is to obtain a baseline 
assessment of seabed/sub-surface soil conditions in the Lease Areas and 
cable route corridors to support the siting of potential future 
offshore wind projects. Underwater sound resulting from Vineyard Wind's 
planned marine site characterization surveys has the potential to 
result in incidental take of 14 marine mammal species in the form of 
Level B behavioral harassment. Vineyard Wind requested a renewal of the 
initial IHA that was re-issued by NMFS in July 2020 on the basis that 
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 IHA 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, Vineyard Wind estimated that it 
would take a year to complete the marine site characterization surveys. 
This schedule was based on 24-hour operations and included potential 
down time due to inclement weather. With up to eight survey vessels 
operating concurrently, a maximum of 736 vessel days were anticipated. 
Each vessel would maintain a speed of approximately 3.5 knots (kn; 6.5 
kilometers (km)/hour) while transiting survey lines and each vessel 
would cover approximately 100 km per day. However, during the 2020-2021 
survey season, Vineyard Wind completed only 184 vessel days of the 736 
vessel days estimated to complete the work and only surveyed 
approximately 25 percent of the planned survey routes. Vineyard Wind 
predicts that a maximum of 552 vessel days, with up to 8 survey vessels 
operating concurrently, over 181 days will be required to survey the 
remaining routes, estimated to be approximately 55,200 km. This Renewal 
IHA authorizes harassment of marine mammals for this remaining survey 
distance using survey methods identical to those described in the 
initial IHA application; therefore, the anticipated effects on marine 
mammals and the affected stocks also remain the same. All active 
acoustic sources and mitigation and monitoring measures remain as 
described in the Federal Register notices of the proposed IHA (85 FR 
7952, February 12, 2020) and issued IHA (85 FR 26940, May 06, 2020). 
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. The surveys would be a subset of, but 
otherwise identical to, those analyzed for the initial IHA.

Detailed Description of the Activity

    A detailed description of the survey activities for which take is 
authorized here may be found in the Federal Register notices of the 
proposed IHA (85 FR 7952, February 12, 2020), issued IHA (85 FR 26940, 
May 06, 2020), and reissued IHA (85 FR 42357, July 14, 2020) for the 
initial authorization. Vineyard Wind was not able to complete the 
survey activities analyzed in the initial IHA by the date the IHA 
expired (June 20, 2021). As such, the surveys Vineyard Wind will 
conduct under this Renewal IHA will 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 (181 days versus 365 days); however, 
Vineyard Wind will continue to operate 24 hours per day to complete the 
work. This Renewal IHA is effective from July 15, 2021 through June 20, 
2022.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized here, including information on abundance, 
status, distribution, and hearing, may be found in the Federal Register 
notices of the proposed and final IHAs for the initial authorization 
(85 FR 7952, February 12, 2020; 85 FR 26940, May 06, 2020) and the 
proposed Renewal IHA (85 FR 30435, June 08, 2021). Upon receipt of 
Vineyard Wind's renewal request, NMFS reviewed the monitoring data from 
the initial IHA, recent draft Stock Assessment Reports, information on 
relevant Unusual Mortality Events, and other scientific literature.
    The draft 2020 Stock Assessment Report (SAR, available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports) states that estimated abundance 
has increased for the Western North Atlantic stock of common dolphins, 
from 172,825 (CV=0.21) to 172,974 (CV=0.21), and decreased for the 
following marine mammal stocks since the issuance of the initial IHA: 
The Gulf of Maine stock of humpback whales (from 1,396 (CV=0) to 1,393 
(CV=0.15)), the Western North Atlantic stock of fin whales (from 7,418 
(CV=0.25) to 6,802 (CV=0.24)), and the Canadian East coast stock of 
minke whales (from 24,202 (CV=0.3) to 21,968 (CV=0.31)). Abundance and 
density estimates for the Western North Atlantic stock of North 
Atlantic right whales have also been updated, and state that right 
whale abundance has decreased from 428 to 368 (95% CI 356-378) 
individuals (Pace 2021) and that densities have slightly increased in 
the Project Area from 0.105 whales per 100 square kilometers (km\2\) to 
0.169 whales per 100 km\2\ (Roberts et al. 2020; note that the updated 
density estimate was not included in the Proposed Renewal). In 
addition, Oleson et al. (2020) provides evidence that was not available 
at time of the initial IHA that part of Vineyard Wind's Project Area 
coincides directly with year-round core foraging habitat North Atlantic 
right whales. NMFS discussed the importance of portions of the Project 
Area as core habitat for North Atlantic right whales in the proposed 
and final notices of the initial IHA, but did not include this 
discussion, or reference to the visual and acoustic detections of North 
Atlantic right whales indicating a nearly year-round presence discussed 
by Oleson et al. (2020) in the Proposed Renewal.
    An additional update related to species for which take is 
authorized here that was not included in the proposed Renewal IHA, is 
the change in status of the Gulf of Maine humpback whale stock from 
non-strategic to strategic reported in the draft SAR. This change was 
made because the detected mortality is estimated to be only 19 percent 
of all mortalities, and the total estimated human-caused annual 
mortality and serious injury is 51.5 animals compared to the Potential 
Biological Removal (PBR) estimate of 22 animals.
    NMFS has determined that neither the updated abundance and density 
information presented above nor any

[[Page 38299]]

other new information, including the information regarding year-round 
North Atlantic right whale core foraging habitat and the designation of 
the Gulf of Maine humpback whale stock as strategic, 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 
authorized here may be found in the Federal Register notices of the 
proposed and final IHAs for the initial authorization (85 FR 7952, 
February 12, 2020; 85 FR 26940, May 06, 2020). NMFS has reviewed the 
monitoring data from the initial IHA, recent draft Stock Assessment 
Reports, Technical Reports (e.g., Oleson et al. 2020, Pace 2021), 
information on relevant Unusual Mortality Events, other scientific 
literature (e.g., Roberts et al. 2020), and the public comments. NMFS 
does not expect that the generally short-term, intermittent, and 
transitory HRG survey activities would impact the reproduction or 
survival of any of the species and stocks that have the potential to be 
affected by this authorization. Therefore, NMFS has determined that 
neither the information mentioned above 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 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 
(85 FR 7952, February 12, 2020; 85 FR 26940, May 06, 2020). The 
acoustic source types, as well as source levels 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 authorization for the marine site characterization 
survey activities, the potential for take was estimated using the 
following parameters: (1) Maximum number of survey days that could 
occur over a 12-month period; (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) mean annual 
densities for species in the area of specified activity. 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 B Harassment Thresholds
------------------------------------------------------------------------
 
------------------------------------------------------------------------
HRG survey equipment                                  Level B harassment
                                                       horizontal impact
                                                                distance
                                                                     (m)
------------------------------------------------------------------------
Shallow subbottom profilers.....  EdgeTech Chirp 216                   4
Deep seismic profilers..........  Applied Acoustics                  178
                                   AA251 Boomer.
Deep seismic profilers..........  GeoMarine Geo                      195
                                   Spark 2000 (400
                                   tip).
------------------------------------------------------------------------

    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

    As described in the Federal Register notices of the proposed and 
final IHAs for the initial authorization (85 FR 7952, February 12, 
2020; 85 FR 26940, May 06, 2020), Vineyard Wind 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. Vineyard Wind estimates that 
survey vessels will achieve a maximum daily track line distance of 100 
km per day during proposed surveys. This distance accounts for the 
vessel traveling at roughly 3.5 kn (6.5 km/hour) and accounts for non-
active survey periods. Based on the maximum estimated distance to the 
Level B harassment threshold of 195 m (Table 1) and the maximum 
estimated daily track line distance of 100 km, which are the same as 
were used in the initial IHA, Vineyard Wind estimated that an area of 
39.12 km\2\ will be ensonified to the Level B harassment threshold per 
day during Vineyard Wind's survey activities. This is a conservative 
estimate as it assumes the HRG sources that result in the greatest 
isopleth distances to the Level B harassment threshold will be operated 
at all times during all vessel days.
    This methodology of calculating take in the initial IHA applies to 
this issued Renewal IHA for all species, with the only difference being 
the fewer amount of vessel days (i.e., 552 versus 736). The result is 
that the amount of take is reduced proportionally to the reduction in 
the number of days of work remaining. Vineyard Wind has requested a 
deviation from the proportionally reduced calculated take for Risso's 
dolphins as described below. Other than in the additional instances 
described below, NMFS agrees with Vineyard Wind's request for take and 
we have authorized the same amount of take as described in their 
request.
    In their application for a Renewal IHA, Vineyard Wind requested 
that the number of Level B harassment takes (per the equation above) 
for Risso's dolphins be equal to their average group size estimate (6 
individuals), given a proportional reduction in take based on the 
reduction in the number of days of work remaining would result in a 
take estimate that is smaller than the average group size estimate. As 
described in Vineyard Wind's preliminary monitoring report, they did 
not observe any Risso's dolphins during the survey work thus far 
completed. Therefore, we have authorized the same amount of take as 
proposed in the initial IHA, which is based on an average group size of 
6 Risso's dolphins (Table 2).
    In the Federal Register notices of the proposed and final IHAs for 
the initial authorization (85 FR 7952, February 12, 2020; 85 FR 26940, 
May 06, 2020) NMFS limited takes by Level B harassment authorized for 
North Atlantic right whales to 10 individuals, which was reduced from 
an initially calculated take of 31 whales. There were several reasons 
justifying this reduction.

[[Page 38300]]

Vineyard Wind established and monitored a shutdown zone at least 2.5 
times (500-meters (m)) greater than the predicted Level B harassment 
threshold distance (195 m). Take had also been conservatively 
calculated based on the largest source, which will not be operating at 
all times, and take is therefore likely over-estimated to some degree. 
Furthermore, the potential for incidental take during daylight hours is 
very low given that two Protected Species Observers (PSOs) are required 
for monitoring (over the 500-m shutdown zone for North Atlantic right 
whales, compared with the 195-m estimated Level B harassment zone). 
Additionally, sightings of right whales had been uncommon during 
previous marine site characterization surveys conducted near Vineyard 
Wind's Project Area. For example, no North Atlantic right whales were 
sighted during Bay State Wind surveys in adjacent and overlapping 
survey areas over 376 vessel days between May 11, 2018 and March 14, 
2019. Vineyard Wind also had no North Atlantic right whales sighted in 
their marine mammal monitoring report that included Lease Areas OCS-A 
0501 and OCS-A 0522 from May 31, 2019 through January 7, 2020. 
Therefore, the aforementioned factors led NMFS to conclude that the 
unadjusted modeled exposure estimate was likely a significant 
overestimate of actual potential exposure. Accordingly, in the initial 
IHA NMFS made a reasonable adjustment to conservatively account for 
these expected mitigating effects from the required mitigation measures 
on actual taking of right whales.
    During the 2020-2021 surveys, Vineyard Wind reported four sightings 
of North Atlantic right whales (seven individuals) in their preliminary 
monitoring report. While all of these individuals were observed on a 
single day (December 20, 2020) and outside both the estimated 195-m 
Level B harassment Zone and the 500 m Exclusion Zone (EZ) for North 
Atlantic right whales (closest approaches were > 900 m), they represent 
an increased amount of sightings observed during marine site 
characterization surveys, though the information suggests that there 
were no takes.
    Roberts et al. (2020) provided updated monthly densities of North 
Atlantic right whales in the area of proposed activities since the time 
of the initial IHA. These updated data for North Atlantic right whale 
densities incorporate additional sighting data and include increased 
spatial resolution. We reviewed the updated model documentation and 
recalculated the North Atlantic right whale density estimates following 
the same methods outlined in the proposed and final IHAs for the 
initial authorization (85 FR 7952, February 12, 2020; 85 FR 26940, May 
06, 2020). The new model results state that the mean annual North 
Atlantic right whale densities have slightly increased in the activity 
area from 0.105 whales per 100 square kilometers (km\2\) to 0.169 
whales per 100 km\2\. Despite the increase in sightings and densities 
of North Atlantic right whales in the survey area, we believe that an 
updated unadjusted modeled exposure estimate of 36 individuals based on 
these slightly increased densities would still represent a significant 
overestimate of the actual potential exposure, and therefore authorize 
the same amount of take (10 individuals) for this Renewal IHA as was 
authorized in the initial IHA, which accounts for the expected 
mitigating effects from the required mitigation measures on the actual 
taking of right whales.
    As documented in Vineyard Wind's preliminary monitoring report, 
there were a number of sightings of delphinids both within the 
estimated 195 m Level B Harassment Zone and the 100 m EZ that were 
characterized by the PSOs as `voluntary approaches.' A ``voluntary 
approach'' is defined as a purposeful approach toward the vessel by the 
delphinid(s) with a speed and vector that indicates that the 
delphinid(s) is approaching the vessels and remains near the vessel or 
towed equipment (BOEM 2014). Vineyard Wind PSOs reported 270 sightings 
of approximately 3,332 individual common dolphins within the estimated 
195 m Level B harassment zone (note that these observations did not all 
occur during actual use of the source for which this zone is estimated, 
and that the actual zone at the time of observation would have been 
smaller). Given that Vineyard Wind observed more common dolphins than 
expected, we authorize the same amount of take (2,036 individuals) as 
authorized in the initial IHA, as opposed to decreasing it commensurate 
to the reduced amount of activity remaining. Thus, take numbers 
authorized in this Renewal IHA (Table 2) represent prorated estimates 
for all species except North Atlantic right whales, Risso's dolphins, 
and common dolphins whose authorized take estimates remain the same as 
authorized in the initial IHA.
    On August 20, 2020 Vineyard Wind PSOs observed two white-beaked 
dolphins within the 195 m Level B harassment zone for the sparker 
during the first year of Vineyard Wind's survey activities. White-
beaked dolphins were considered unlikely to be encountered in the 
survey area and, therefore, take was not considered reasonably likely 
to occur and was not authorized in the initial IHA. This species has 
historically been found in waters outside of the survey area, from 
southern New England to southern Greenland and Davis Straits 
(Leatherwood et al. 1976, CETAP 1982, Hayes et al. 2019), across the 
Atlantic to the Barents Sea and south to at least Portugal (Reeves et 
al. 1999). In waters off the northeastern U.S. coast, white-beaked 
dolphin sightings are typically concentrated in the western Gulf of 
Maine and around Cape Cod (CETAP 1982, Hayes et al. 2019). The dolphins 
observed during the 2020-2021 surveys were first sighted as 
unidentified dolphins due to the decreased visibility under sea state 3 
conditions, creating challenges in identification. Given the dolphins 
were of genera Delphinus, Lagenorhynchus, or Tursiops, and in 
accordance with IHA condition 4(f)(vii), the PSO used their best 
professional judgment in determining that the animals were exempted 
from the shutdown requirement. After less than a minute of bow riding 
the dolphins began swimming away and at the end of the sighting the PSO 
was able to make a positive ID. The PSO determined the animal was 
leaving the zone and therefore no mitigation was required. The PSO 
determined that there was no behavioral change or signs of distress and 
thus Vineyard Wind did not report the sighting as a potentially 
unauthorized Level B harassment take. Despite this single observation 
of white beaked dolphins, encounters with the species in the survey 
area remain unlikely. For example, no sightings of white beaked 
dolphins have been reported in monitoring reports from other IHAs 
issued in the same region in recent years. Therefore, NMFS has 
determined that the initial determination that take of the species is 
not reasonably likely to occur and, therefore, that take authorization 
for the species is not warranted. We have clarified with Vineyard Wind 
the need to communicate any sightings of rare species to NMFS as soon 
as possible.

[[Page 38301]]



                      Table 2--Initial IHA Take Authorized and Renewal IHA Take Authorized
----------------------------------------------------------------------------------------------------------------
                                                                     Level B harassment
                                                           --------------------------------------     Percent
                          Species                            Take authorized    Take authorized   population \1\
                                                               initial IHA        renewal IHA
----------------------------------------------------------------------------------------------------------------
Fin whale.................................................                 67                 51             1.1
Humpback whale............................................                 46                 34             2.1
Minke whale...............................................                 41                 31             1.5
North Atlantic right whale................................                 10                 10             2.7
Sei whale.................................................                  4                  3             0.4
Atlantic white sided dolphin..............................              1,011                758             2.0
Bottlenose dolphin (WNA Offshore).........................                815                611             1.0
Long-finned pilot whales..................................                142                107             0.6
Risso's dolphin...........................................                  6                  6            0.08
Common dolphin............................................              2,036              2,036             2.3
Sperm whale...............................................                  4                  3            0.06
Harbor porpoise...........................................              1,045                784             1.7
Gray seal.................................................              4,044              3,033           11.17
Harbor seal...............................................              4,044              3,033             4.0
----------------------------------------------------------------------------------------------------------------
\1\ Calculations of percentage of stock taken are based on the best available abundance estimate as shown in
  Table 2 in the notice of the final IHA for the initial authorization (85 FR 26940, May 06, 2020). In most
  cases the best available abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available,
  to maintain consistency with density estimates derived from Roberts et al. (2016, 2017, 2018). For North
  Atlantic right whales the best available abundance estimate is derived from the 2021 NOAA Technical Memorandum
  NMFS-NE-269 Revisions and Further Evaluations of the Right Whale Abundance Model: Improvements for Hypothesis
  Testing (Pace, 2021). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a
  single abundance estimate and does not provide abundance estimates at the stock or species level
  (respectively), so abundance estimates used to estimate percentage of stock taken for bottlenose dolphins,
  gray and harbor seals are derived from NMFS SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

Description of Mitigation, Monitoring and Reporting Measures

    The 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 26940, May 06, 2020), and the discussion of the least 
practicable adverse impact included in that document and the notice of 
the proposed IHA remains accurate (85 FR 7952, February 12, 2020; 85 FR 
26940, May 06, 2020). All mitigation, monitoring and reporting measures 
in the initial IHA are carried over to this Renewal IHA and summarized 
here:
     EZ: Marine mammal EZs will be established around the HRG 
survey equipment and monitored by PSO during HRG surveys as follows: A 
500-m EZ is required for North Atlantic right whales and a 100-m EZ is 
required for all other marine mammals (with the exception of certain 
genera of small delphinids (i.e., Delphinus, Lagenorhynchus, and 
Tursiops) under certain circumstances, such as individuals voluntary 
approaching the vessel). If a marine mammal is detected approaching or 
entering the EZs during the planned survey, the vessel operator would 
adhere to the shutdown procedures described below. In addition to the 
EZs described above, PSOs would visually monitor a 200-m Buffer Zone; 
however, this Buffer Zone is not applicable when the EZ is greater than 
100 m. PSOs would also be required to observe a 500-m Monitoring Zone 
and record the presence of all marine mammals within this zone and 
within the Level B harassment zone. The zones described above would be 
based upon the radial distance from the active equipment (rather than 
being based on distance from the vessel itself).
     PSO: A minimum of two NMFS-approved PSOs must be on duty 
and conducting visual observations at all times on all active survey 
vessels when HRG equipment is operating, including both daytime and 
nighttime operations. Visual monitoring would begin no less than 30 
minutes prior to initiation of HRG survey equipment and would continue 
until 30 minutes after use of the acoustic source ceases or until 30 
minutes past sunset. However, Vineyard Wind has committed to 24-hr use 
of PSOs. PSOs would establish and monitor the applicable EZs, Buffer 
Zone and Monitoring Zone as described above.
     Pre-Operation Clearance Protocols: Prior to initiating HRG 
survey activities, Vineyard Wind would implement a 30-minute pre-
clearance period. Ramp-up of the survey equipment would not begin until 
the relevant zones (500-m EZ for North Atlantic right whales and 200-m 
Buffer Zone for all other species) have been cleared by the PSOs. If 
any marine mammals are detected within the relevant EZs or Buffer Zone 
during the pre-clearance period, initiation of HRG survey equipment 
would not begin until the animal(s) has been observed exiting the 
respective EZ or Buffer Zone, or, until an additional time period has 
elapsed with no further sighting (i.e., minimum 15 minutes for small 
odontocetes and seals, and 30 minutes for all other species). The pre-
clearance requirement would include small delphinids that approach the 
vessel (e.g., bow ride). PSOs would also continue to monitor the zone 
for 30 minutes after survey equipment is shut down or survey activity 
has concluded.
     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. Ramp-up of the survey equipment would not 
begin until the relevant EZs and Buffer Zone has 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 or Buffer Zone 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 as described above. Subsequent 
restart of the HRG equipment would only occur after the marine mammal 
has either been observed exiting the relevant EZ,

[[Page 38302]]

or, until an additional time period has elapsed with no further 
sighting of the animal within the relevant EZ (i.e., 15 minutes for 
small odontocetes and seals, and 30 minutes for all other species).
     Vessel strike avoidance measures: Separation distances for 
large whales (500 m North Atlantic Right Whales, 100 m other large 
whales; 50 m other cetaceans and pinnipeds), restricted vessel speeds 
including a requirement that all vessel operators comply with 10 kn 
(18.5 km/hour) or less speed restrictions in any SMA or DMA while 
underway, and operational maneuvers.
     Seasonal Operating Requirements: Vineyard Wind will 
conduct survey activities in the Cape Cod Bay Mid-Atlantic U.S. 
Seasonal Management Area (SMA) and Off Race Point SMA only during the 
months of August and September to ensure sufficient buffer between the 
SMA restrictions (January to May 15) and known seasonal occurrence of 
the North Atlantic right whale north and northeast of Cape Cod (fall, 
winter, and spring). Vineyard Wind will also limit to three the number 
survey vessels that will operate concurrently from March through June 
within the lease areas (OCS-A 0501 and 0487) and offshore export cable 
corridor (OECC) areas north of the lease areas up to, but not 
including, coastal and bay waters. Another seasonal restriction area 
south of Nantucket will be in effect from December to February in the 
area delineated by the DMA that was effective from January 31, 2020 
through February 15, 2020. In addition, Vineyard Wind would operate 
either a single vessel, two vessels concurrently or, for short periods, 
no more than three survey vessels concurrently in the areas described 
above during the December-February and March-June timeframes when right 
whale densities are greatest. The seasonal restrictions described above 
will help to reduce both the number and intensity of North Atlantic 
right whale takes.
     Reporting: Vineyard Wind will submit a final technical 
report within 90 days following completion of the surveys. In the event 
that Vineyard Wind personnel discover an injured or dead marine mammal, 
Vineyard Wind shall report the incident to the Office of Protected 
Resources (OPR), NMFS and to the New England/Mid-Atlantic Regional 
Stranding Coordinator as soon as feasible. In the event of a ship 
strike of a marine mammal by any vessel involved in the activities 
covered by the authorization, Vineyard Wind shall report the incident 
to OPR, NMFS and to the New England/Mid-Atlantic Regional Stranding 
Coordinator as soon as feasible.

Comments and Responses

    A notice of NMFS' proposal to issue a Renewal IHA to Vineyard Wind 
was published in the Federal Register on June 8, 2021 (86 FR 30435). 
That notice either described, or referenced descriptions of, Vineyard 
Wind'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. NMFS received comments from: (1) A 
group of environmental non-governmental organizations (ENGOs) including 
the Natural Resources Defense Council, Conservation Law Foundation, 
National Wildlife Federation, Defenders of Wildlife, Southern 
Environmental Law Center, Surfrider Foundation, Mass Audubon, Friends 
of the Earth, International Fund for Animal Welfare, NY4WHALES, WDC 
Whale and Dolphin Conservation, Marine Mammal Alliance Nantucket, 
Gotham Whale, All Our Energy, Seatuck Environmental Association, Inland 
Ocean Coalition, Nassau Hiking & Outdoor Club, Connecticut Audubon 
Society, and Cetacean Society international; and (2) Oceana.
    The comments and our responses are summarized below.
    Comment 1: The ENGOs and Oceana both recommended that NMFS expand 
upon the statement in the Federal Register notice of proposed Renewal 
IHA (85 FR 30435, June 08, 2021) that ``the mean annual North Atlantic 
right whale densities have slightly increased in the activity area'' 
since the initial IHA was published. They suggest that our qualitative 
summation of increased North Atlantic right whale densities in the 
project area likely underestimates the true importance of the area as a 
year-round core foraging habitat to North Atlantic right whales (Leiter 
et al. 2017; Oleson et al. 2020) and that this needs to be more fully 
explored, considered, and analyzed before an IHA is renewed. The ENGOs 
stressed that NMFS should be transparent in our decision-making 
regardless of levels of take and that we must publish the results of 
the updated analysis. They also stressed that NMFS must ensure 
undisturbed access to foraging habitat to adequately protect North 
Atlantic right whales since North Atlantic right whales employs a 
``high-drag'' foraging strategy that enables them to selectively target 
high-density prey patches, but is energetically expensive.
    Response: When assessing the appropriateness of a Renewal IHA NMFS 
must confirm, among other things, that no new information has been 
received that would alter the prior analysis. In the Federal Register 
notice of proposed Renewal IHA (85 FR 30435, June 08, 2021), NMFS 
discussed new information related to North Atlantic right whales 
including updated density estimates obtained from updated model outputs 
reported by Roberts et al. (2020). These habitat-informed density 
models offer the most comprehensive evaluation of North Atlantic right 
whale density along the east coast to date and consider both the 
spatial and temporal importance of the project area to right whales. 
These updated density estimates, which incorporated additional sighting 
data and included increased spatial resolution in the project area, 
suggest that the North Atlantic right whale densities in the project 
region slightly increased from 0.105 whales per 100 km\2\ to 0.169 
whales per 100 km\2\. While the increase in density was described, NMFS 
acknowledges that the actual updated density estimate was omitted from 
the Federal Register notice of proposed Renewal IHA (85 FR 30435, June 
08, 2021) and therefore we have included this information along with 
the updated unadjusted modeled exposure estimate of 36 individuals in 
this Federal Register notice of the Renewal IHA.
    In the proposed and final notices of the initial IHA, we discuss 
the importance of portions of the Project Area as core habitat for 
North Atlantic right whales. For example, data indicates that right 
whales occur at elevated densities in the Project Area south and 
southwest of Martha's Vineyard in the spring (March-May) and south of 
Nantucket during winter (December-February) (Roberts et al. 2018, 
Leiter et al. 2017, Kraus et al. 2016). In addition, consistent 
aggregations of right whales feeding and possibly mating within or 
close to these specific areas is such that they have been considered 
right whale ``hotspots'' (Leiter et al. 2017, Kraus et al. 2016). 
Oleson et al. (2020), which was referenced by the commenters but was 
not available at the time of the initial authorization of this IHA, 
provides additional evidence that part of the Project Area coincides 
directly with year-round core foraging habitat south of Martha's 
Vineyard and Nantucket islands where both visual and acoustic 
detections of North Atlantic right whales indicate a nearly year-round 
presence. We have included this information in this Federal Register 
notice of the issued Renewal IHA. Despite these areas being important 
year-round foraging habitat for right

[[Page 38303]]

whales, NMFS notes that prey for North Atlantic right whales are mobile 
and broadly distributed throughout the project area; therefore, North 
Atlantic right whales are expected to be able to resume foraging once 
they have moved away from any areas with disturbing levels of 
underwater noise. There is ample foraging habitat adjacent to the 
Project Area that is not ensonified by HRG sources. For example, in the 
fall of 2019 and 2020, North Atlantic right whales were particularly 
attracted to Nantucket Shoals, located to the east of the Project Area. 
Furthermore, the spatial acoustic footprint of the survey is very small 
relative to the spatial extent of the available foraging habitat.
    NMFS concluded that there is no new information, including from the 
reports referenced by the commenters, suggesting that our analysis or 
findings should change for the Renewal IHA from those reached in the 
initial IHA. This includes consideration of our take estimate of 10 
North Atlantic right whales despite slightly increased densities of 
right whales in the Project Area and the importance of portions of the 
Project area as year-round foraging habitat for right whales. Based on 
findings reported in Vineyard Wind's preliminary monitoring report and 
the expected mitigating effects from the required mitigation measures 
on the actual taking of right whales, we have concluded that the 
updated exposure estimate based on the updated density estimate 
represents a significant overestimate of the actual potential exposure, 
and therefore authorize the same amount of take (10 individuals) as 
proposed in the initial IHA and the Federal Register notice of proposed 
Renewal IHA (85 FR 30435, June 08, 2021). These mitigation measures 
include the use of two PSO observers at times when HRG equipment is in 
use, shutdown measures and vessel strike avoidance measures when North 
Atlantic right whales are sighted within the 500-m EZ (which is at 
least 2.5 times greater than the predicted Level B harassment threshold 
distance (195 m)), and seasonal restrictions that limit or prohibit 
survey activities during times and areas when North Atlantic right 
whales are found in higher densities. NMFS believes that these measures 
will minimize the impact that the proposed activities will have on this 
species, particularly in areas of importance such as year-round 
foraging habitats, to North Atlantic right whales.
    Comment 2: The ENGOs recommended that NMFS incorporate additional 
data sources into calculations of marine mammal density and take and 
that NMFS must ensure all available data are used to ensure that any 
potential shifts in North Atlantic right whale habitat usage are 
reflected in estimations of marine mammal density and take. The ENGOs 
asserted in general that the density models used by NMFS do not fully 
reflect the abundance, distribution, and density of marine mammals for 
the U.S. East Coast and therefore result in an underestimate of take.
    Response: Habitat-based density models produced by the Duke 
University Marine Geospatial Ecology Lab (MGEL) (Roberts et al. 2016, 
2017, 2018, 2020) represent the best available scientific information 
concerning marine mammal occurrence within the U.S. Atlantic Ocean. 
Density models were originally developed for all cetacean taxa in the 
U.S. Atlantic Ocean (Roberts et al. 2016); more information, including 
the model results and supplementary information for each of those 
models, is available at seamap.env.duke.edu/models/Duke-EC/ EC/. These 
models provided key improvements over previously available information, 
by incorporating additional aerial and shipboard survey data from NMFS 
and from other organizations collected over the period 1992-2014, 
incorporating 60 percent more shipboard and 500 percent more aerial 
survey hours than did previously available models; controlling for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting; and modeling density from 
an expanded set of 8 physiographic and 16 dynamic oceanographic and 
biological covariates. In subsequent years, certain models have been 
updated on the basis of additional data as well as methodological 
improvements. In addition, a new density model for seals was produced 
as part of the 2017-18 round of model updates.
    Of particular note, Roberts et al. (2020) further updated density 
model results for North Atlantic right whales by incorporating 
additional sighting data and implementing three major changes: 
Increasing spatial resolution, generating monthly estimates on three 
time periods of survey data, and dividing the study area into 5 
discrete regions. This most recent update--model version nine for North 
Atlantic right whales--was undertaken with the following objectives 
(Roberts et al. 2020):
     To account for recent changes to right whale 
distributions, the model should be based on survey data that extend 
through 2018, or later if possible. In addition to updates from 
existing collaborators, data should be solicited from two survey 
programs not used in prior model versions including aerial surveys of 
the Massachusetts and Rhode Island Wind Energy Areas led by New England 
Aquarium (Kraus et al. 2016), spanning 2011-2015 and 2017-2018 and 
recent surveys of New York waters, either traditional aerial surveys 
initiated by the New York State Department of Environmental 
Conservation in 2017, or digital aerial surveys initiated by the New 
York State Energy Research and Development Authority in 2016, or both.
     To reflect a view in the right whale research community 
that spatiotemporal patterns in right whale density changed around the 
time the species entered a decline in approximately 2010, consider 
basing the new model only on recent years, including contrasting 
``before'' and ``after'' models that might illustrate shifts in 
density, as well as a model spanning both periods, and specifically 
consider which model would best represent right whale density in the 
near future;
     To facilitate better application of the model to near-
shore management questions, extend the spatial extent of the model 
farther in-shore, particularly north of New York; and
     Increase the resolution of the model beyond 10 km, if 
possible.
    All of these objectives were met in developing the most recent 
update to the North Atlantic right whale density model.
    As noted above, NMFS has determined that the Roberts et al. suite 
of density models represent the best available scientific information. 
However, NMFS acknowledges that there will always be additional data 
that is not reflected in the models and that may inform our analyses, 
whether because the data were not made available to the model authors 
or because the data is more recent than the latest model version for a 
specific taxon.
    The ENGOs pointed to additional data that can be obtained from 
sightings databases, passive acoustic monitoring efforts, aerial 
surveys, and autonomous vehicles. The ENGO's pointed specifically to 
monthly standardized marine mammal aerial surveys flown in the 
Massachusetts and Rhode Island and Massachusetts Wind Energy Areas by 
the New England Aquarium from October 2018 through August 2019 and 
March 2020 through July 2021. The 2018-2019 New England Aquarium study 
showed that North Atlantic right whale distribution changed seasonally, 
with several sightings of North Atlantic right whales in Lease Area 
OSC-A 0522 in the winter, one sighting in Lease Area OSC-A 0501 in the 
spring, and no other

[[Page 38304]]

sightings in Vineyard Wind's lease areas during other portions of the 
year. Information on the results from the 2020-2021 aerial survey is 
currently unavailable. The commenters also referenced a study funded by 
the Bureau of Offshore Energy Management (BOEM) using an autonomous 
vehicle for real-time acoustical monitoring of marine mammals from 
December 2019 through March 2020 and again from December 2020 through 
February 2021 on Cox Ledge, located approximately 35 miles east of 
Montauk Point, New York between Block Island and Martha's Vineyard. 
Note that only a small portion of BOEM's acoustic study area overlapped 
with Vineyard Wind's Project Area. Between December 21, 2020 and March 
30, 2020 (91 days) North Atlantic right whales were acoustically 
detected on 13 days and possibly detected on an additional 3 days. No 
North Atlantic right whales were detected in BOEM's study area between 
March 25, 2021 and July 01, 2021 (98 days). The data from these recent 
studies does not indicate that NMFS should alter any of the required 
mitigation and monitoring requirements, particularly as NMFS considers 
impacts from these types of survey operations to be near de minimis and 
that Vineyard Wind is already required to adhere to time and area 
seasonal restrictions. It would be difficult to draw any qualitative 
conclusions from these study results given that most of the 
observations and detections occurred in only small portions of Vineyard 
Wind's Project Area.
    NMFS will review any other recommended data sources that become 
available to evaluate their applicability in a quantitative sense 
(e.g., to an estimate of take numbers) and, separately, to ensure that 
relevant information is considered qualitatively when assessing the 
impacts of the specified activity on the affected species or stocks and 
their habitat. NMFS will continue to use the best available scientific 
information, and we welcome future input from interested parties on 
data sources that may be of use in analyzing the potential presence and 
movement patterns of marine mammals, including North Atlantic right 
whales, in U.S. Atlantic waters. At this time, there are no additional 
new sources of density information that affects our analyses or 
determinations.
    While the ENGO's referenced additional data, no specific 
recommendations were made with regard to use of this information in 
informing the take estimates. Rather, the commenters suggested that 
NMFS should ``collate and integrate these and more recent data sets to 
more accurately reflect marine mammal presence for future IHAs and 
other work.'' NMFS would welcome in the future constructive suggestions 
as to how these objectives might be more effectively accomplished. NMFS 
used the best scientific information available at the time the analyses 
for the proposed and final IHAs were conducted, and has considered all 
available data, including sources referenced by the commenters, in 
reaching its determinations in support of issuance of the Renewal IHA 
requested by Vineyard Wind.
    Comment 3: Oceana asserted that NMFS' must use the best available 
science for assessing North Atlantic right whale abundance estimates. 
They state that North Atlantic right whales have experienced 
significant declines in the last decade and that NMFS should use the 
most recent population estimate to support the IHA which is being 
considered for renewal, which they state is the Pettis et al. (2020) 
estimate of 356 North Atlantic right whales. They commented that this 
estimate is nearly 14 percent lower than the estimate NMFS used in the 
analysis to support the proposed Renewal IHA.
    Response: NMFS agrees that the best available and most recent 
science should be used for assessing North Atlantic right whale 
abundance estimates in the Renewal IHA, but disagrees that the Pettis 
et al. (2020) study represents the most recent and best available 
estimate for North Atlantic right whale abundance. Rather the revised 
abundance estimate published by Pace (2021) which was used in the 
proposed Renewal IHA provide the most recent and best available 
estimate, which suggest improvements to the model currently used to 
estimate North Atlantic right whale abundance. Specifically, Pace 
(2021) looked at a different way of characterizing annual estimates of 
age-specific survival. The results strengthened the case for a change 
in mean survival rates after 2010-2011, but did not significantly 
change other current estimates (population size, number of new animals, 
adult female survival) derived from the model. The estimate reported by 
Pace (2021) and used in the Federal Register notice of proposed Renewal 
IHA (85 FR 30435, June 08, 2021) and in this Renewal IHA is 368 (95% CI 
356-378) whales. Of note, the estimate proposed by Pettis et al. (2020) 
of 356 right whales is only three percent, not 14 percent, lower than 
this newly available estimate, which NMFS has determined is the most 
appropriate estimate to use.
    Comment 4: The ENGOs asserted that the seasonal restrictions 
described in the Federal Register notice of proposed Renewal IHA (85 FR 
30435, June 08, 2021) are not protective enough. They recommended 
additional seasonal restriction on site assessment and characterization 
activities in the Project Areas with the potential to harass North 
Atlantic right whales between November 1, 2021 and April 30, 2022 off 
the coasts of New York and Connecticut, and from December 1, 2021 
through April 30, 2022 off the coasts of Rhode Island and 
Massachusetts. The ENGOs also requested clarification regarding whether 
there would be a complete restriction on survey activities within 
seasonal restricted areas or that simply a reduction in survey vessels 
will be required.
    Response: NMFS is concerned about the status of the North Atlantic 
right whale population given that an unusual mortality event (UME) has 
been in effect for this species since June of 2017 and that there have 
been a number of recent mortalities. While the ensonified areas 
contemplated for any single survey vessel are comparatively small and 
the anticipated resulting effects of exposure relatively lower-level, 
the potential impacts of multiple survey vessels (up to 8 according to 
Vineyard Wind) operating simultaneously in areas of higher right whale 
density are not well-documented and warrant caution.
    NMFS reviewed the best available right whale density and abundance 
data for the planned survey area (Roberts et al. 2020, Pace et al. 
2021). We determined that right whale abundance is significantly higher 
in the period starting in late winter and extending to late spring in 
specific sections of the survey area. As described in the initial IHA, 
based on this information NMFS determined that seasonal restrictions as 
described in the final IHA and proposed Renewal IHA are both warranted 
and practicable and thus defined seasonal restriction areas that 
Vineyard Wind must follow when conducting marine site characterization 
survey activities.
    These restrictions include the requirement that survey activities 
may only occur in the Cape Cod Bay Seasonal Management Area (SMA) and 
off of the Race Point SMA during the months of August and September to 
ensure sufficient buffer between the SMA restrictions (January to May 
15) and known seasonal occurrence of right whales north and northeast 
of Cape Cod (fall, winter, and spring). While there will not be a 
complete restriction on survey activities, Vineyard Wind will limit to 
three the number of survey

[[Page 38305]]

vessels that will operate concurrently from March through June within 
the lease areas (OCS-A 0501 and 0487) and OECC areas north of the lease 
areas up to, but not including, coastal and bay waters. An additional 
seasonal restriction area was defined in the initial IHA south of 
Nantucket and will be in effect from December to February in the area 
delineated by the Dynamic Management Area (DMA or Slow Zone) that was 
effective from January 31, 2020 through February 15, 2020. DMAs have 
been established during this time frame in this area for the last 
several years. DMAs are temporary protection zones that are triggered 
when three or more whales are sighted within 2-3 miles of each other 
outside of active SMAs. The size of a DMA is larger if more whales are 
present.
    The ENGOs recommended that additional restrictions be put into 
place, but they do not provide any evidence or support for the 
additional restrictions they recommend other than mentioning that North 
Atlantic right whales are expected to be present in the Project Area 
year-round. While we acknowledge that the North Atlantic right whale 
densities temporally fluctuate off the coasts of New York and 
Connecticut and off the coasts of Rhode Island and Massachusetts and 
that North Atlantic right whales could be in the Project Area 
throughout the year, we have determined the seasonal restrictions 
described in the initial IHA and included in the Renewal IHA, paired 
with the other required mitigation and monitoring measures, are 
sufficiently protective. This is supported by findings from Vineyard 
Wind's preliminary monitoring report, which demonstrated that only four 
sightings of seven North Atlantic right whales were observed in the 
initial year of survey activities, all of which were observed on a 
single day (December 20, 2020). We have determined that additional 
seasonal restrictions are not warranted since NMFS considers impacts 
from these types of survey operations to be near de minimis. Further, 
the commenters have not demonstrated that additional seasonal 
restrictions would result in a net benefit given the cost and 
impracticability of implementing such measures.
    Vineyard Wind is required to operate no more than three survey 
vessels concurrently in the areas described above during the December-
February and March-June timeframes when right whale densities are 
greatest (i.e., a reduction in the number of vessels is required rather 
than a complete restriction of survey activities). The seasonal 
restrictions described above will help to reduce both the number and 
intensity of right whale takes. Regarding practicability, the timing of 
Vineyard Wind's surveys is driven by a complex suite of factors 
including availability of vessels and equipment (which are used for 
other surveys and by other companies), other permitting timelines, and 
the timing of certain restrictions associated with fisheries gear, 
among other things. Vineyard Wind revised their initial survey plan 
such to accommodate these measures and satisfy their permitting and 
operational obligations. Therefore, NMFS determined that this required 
mitigation measure is sufficient to ensure the least practicable 
adverse impact on species or stocks and their habitat.
    Comment 5: The ENGOs stated that the agency's assumptions regarding 
mitigation effectiveness are unfounded and cannot be used to justify 
any reduction in the number of takes authorized as was done for North 
Atlantic right whales. The ENGOs do not believe that Vineyard Wind can 
successfully mitigate Level B harassment simply through the 
implementation of the IHA mitigation measures currently required. The 
reasons cited include: (1) The agency's reliance on a 160 dB threshold 
for behavioral harassment that commenters assert is not supported by 
the best available scientific information; (2) the reliance on the 
assumption that marine mammals will avoid sound despite studies that 
have found avoidance behavior is not generalizable among species and 
contexts; and (3) until the effectiveness of mitigation measures are 
determined, it is premature to include any related assumptions to 
reduce the numbers of marine mammal takes.
    Response: The three comments provided by the ENGOs are addressed 
individually below.
    (1) NMFS acknowledges that the potential for behavioral response to 
an anthropogenic source is highly variable and context-specific and 
acknowledges the potential for Level B harassment at exposures to 
received levels below 160 dB rms. Alternatively, NMFS acknowledges the 
potential that not all animals exposed to received levels above 160 dB 
rms will respond in ways constituting behavioral harassment. There are 
a variety of studies indicating that contextual variables play a very 
important role in response to anthropogenic noise, and the severity of 
effects are not necessarily linear when compared to a received level 
(RL). The commenters cited several studies (Nowacek et al. 2004, 
Kastelein et al. 2012 and 2015, Gomez et al. 2016, Tyack & Thomas 2019) 
that showed there were behavioral responses to sources below the 160 dB 
threshold, but also acknowledge the importance of context in these 
responses. For example, Nowacek et al. (2004) reported the behavior of 
five out of six North Atlantic right whales was disrupted at RLs of 
only 133-148 dB re 1 [micro]Pa (returning to normal behavior within 
minutes) when exposed to an alert signal. However, the authors also 
reported that none of the whales responded to noise from transiting 
vessels or playbacks of ship noise even though the RLs were at least as 
strong, and contained similar frequencies, to those of the alert 
signal. The authors state that a possible explanation for why whales 
responded to the alert signal and did not respond to vessel noise is 
that the whales may have been habituated to vessel noise, while the 
alert signal was a novel sound. In addition, the authors noted 
differences between the characteristics of the vessel noise and alert 
signal which may also have played a part in the differences in 
responses to the two noise types. Therefore, it was concluded that the 
signal itself, as opposed to the RL, was responsible for the response. 
DeRuiter et al. (2013) also indicate that variability of responses to 
acoustic stimuli depends not only on the species receiving the sound 
and the sound source, but also on the social, behavioral, or 
environmental contexts of exposure. Finally, Gong et al. (2014) 
highlighted that behavioral responses depend on many contextual 
factors, including range to source, RL above background noise, novelty 
of the signal, and differences in behavioral state. Similarly, 
Kastelein et al. (2015, cited in the letter) examined behavioral 
responses of a harbor porpoise to sonar signals in a quiet pool, but 
stated behavioral responses of harbor porpoises at sea would vary with 
context such as social situation, sound propagation, and background 
noise levels.
    NMFS uses 160 dB (rms) as the exposure level for estimating Level B 
harassment takes, while acknowledging that the 160 dB rms step-function 
approach is a simplistic approach. The commenters suggested that our 
use of the 160-dB threshold implies that we do not recognize the 
science indicating that animals may react in ways constituting 
behavioral harassment when exposed to lower received levels (RL). 
However, we do recognize the potential for Level B harassment at 
exposures to RLs below 160 dB rms, in addition to the potential that 
animals exposed to RLs above 160 dB rms will not respond in ways 
constituting behavioral harassment (e.g.,

[[Page 38306]]

Malme et al. 1983, 1984, 1985, 1988; McCauley et al. 1998, 2000a, 
2000b; Barkaszi et al. 2012; Stone 2015; Gailey et al. 2016; Barkaszi 
and Kelly 2018). These comments appear to evidence a misconception 
regarding the concept of the 160-dB threshold. While it is correct that 
in practice it works as a step-function, i.e., animals exposed to 
received levels above the threshold are considered to be ``taken'' and 
those exposed to levels below the threshold are not, it is in fact 
intended as a sort of mid-point of likely behavioral responses (which 
are extremely complex depending on many factors including species, 
noise source, individual experience, and behavioral context). What this 
means is that, conceptually, the function recognizes that some animals 
exposed to levels below the threshold will in fact react in ways that 
are appropriately considered take, while others that are exposed to 
levels above the threshold will not. Use of the 160-dB threshold allows 
for a simplistic quantitative estimate of take, while we can 
qualitatively address the variation in responses across different 
received levels in our discussion and analysis.
    Overall, we emphasize the lack of scientific consensus regarding 
what criteria might be more appropriate. Defining sound levels that 
disrupt behavioral patterns is difficult because responses depend on 
the context in which the animal receives the sound, including an 
animal's behavioral mode when it hears sounds (e.g., feeding, resting, 
or migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore, 
levels at which responses occur are not necessarily consistent and can 
be difficult to predict (Southall et al. 2007; Ellison et al. 2012; 
Bain and Williams 2006). Even experts have not previously been able to 
suggest specific new criteria due to these difficulties (e.g., Southall 
et al. 2007; Gomez et al. 2016). Further, we note that the sounds 
sources and the equipment used in the specified activities are outside 
(higher than) of the most sensitive range of mysticete hearing.
    There is currently no agreement on these complex issues, and NMFS 
followed the practice at the time of submission and review of this 
analysis in assessing the likelihood of disruption of behavioral 
patterns by using the 160 dB threshold. This threshold has remained in 
use in part because of the practical need to use a relatively simple 
threshold based on available information that is both predictable and 
measurable for most activities. We note that the seminal review 
presented by Southall et al. (2007) did not suggest any specific new 
criteria due to lack of convergence in the data. NMFS is currently 
evaluating available information towards development of guidance for 
assessing the effects of anthropogenic sound on marine mammal behavior, 
such as a dose-response curve presented by Tyack and Thomas (2017) and 
referenced by the commenters. However, undertaking a process to derive 
defensible exposure-response relationships is complex (e.g., NMFS 
previously attempted such an approach, but is currently re-evaluating 
the approach based on input collected during peer review of NMFS 
(2016)). A recent systematic review by Gomez et al. (2016) referenced 
by the commenters was unable to derive criteria expressing these types 
of exposure-response relationships based on currently available data.
    NMFS acknowledges that there may be methods of assessing likely 
behavioral response to acoustic stimuli that better capture the 
variation and context-dependency of those responses than the simple 160 
dB step-function used here, and that an approach reflecting a more 
complex probabilistic function may more effectively represent the known 
variation in responses at different levels due to differences in the 
receivers, the context of the exposure, and other factors. However, 
there is no agreement on what that method should be or how more 
complicated methods may be implemented by applicants. NMFS is committed 
to continuing its work in developing updated guidance with regard to 
acoustic thresholds, but pending additional consideration and process 
is reliant upon an established threshold that is reasonably reflective 
of available science.
    (2) The commenters disagreed with NMFS' assumption that marine 
mammals avoid sound sources. The ENGOs claimed that studies have not 
found avoidance behavior to be generalizable among species and 
contexts. Importantly, the commenters mistakenly seem to believe that 
the NMFS' does not consider avoidance as a take, and that the concept 
of avoidance is used as a mechanism to reduce overall take--this is not 
the case. Avoidance of loud sounds is a well-documented behavioral 
response, and NMFS often accordingly accounts for this avoidance by 
reducing the number of injurious exposures, which would occur in very 
close proximity to the source and necessitate a longer duration of 
exposure. However, when Level A harassment takes are reduced in this 
manner, they are changed to Level B harassment takes, in recognition of 
the fact that this avoidance or other behavioral responses occurring as 
a result of these exposures are still take. NMFS does not reduce the 
overall amount of take as a result of avoidance or rely in any way on 
assumptions related to avoidance.
    (3) The comments stated that it is premature to include any related 
assumptions to reduce the numbers of marine mammal takes until the 
effectiveness of mitigation measures are determined. Vineyard Wind's 
Preliminary Monitoring Report demonstrates that the number of takes did 
not exceed those authorized based on the mitigation measures 
implemented in the initial IHA and which are carried over in the 
Renewal IHA during Vineyard Wind's survey activities. During the 
reported marine mammal observations, no behavior was observed that 
would be considered consistent with a behavioral response to harassment 
(i.e., rapid swimming away from the sound source or vessel; repeated 
fin slaps or breaches; notable changes in behavior as a result of 
vessel approach), and no animals demonstrated signs of harm.
    While we acknowledge the commenters' concerns regarding unfounded 
assumptions concerning the effectiveness of mitigation requirements in 
reducing actual take of North Atlantic right whales, it is also 
important to also acknowledge the circumstances of a particular action. 
In most cases, the maximum estimated Level B harassment zone associated 
with commonly-used acoustic sources is approximately 195 m, whereas the 
typically-required shutdown zone for North Atlantic right whales is 500 
m. Vineyard Wind reported only four sightings of North Atlantic right 
whales (seven individuals) in the initial year of survey activities, 
all of which were observed on a single day (December 20, 2020) and 
outside both the estimated 195-m Level B harassment zone and the 500-m 
EZ for North Atlantic right whales (closest approaches were >900 m). It 
is also important to note that these observations did not all occur 
during actual use of the source for which this zone is estimated, and 
that the actual zone at the time of observation could have been 
smaller. Therefore, for North Atlantic right whales, NMFS expects that 
required mitigation measures in the Renewal IHA will indeed be 
effective in reducing actual take below the estimated amount, which 
typically does

[[Page 38307]]

not account for the beneficial effects of mitigation.
    Comment 6: Oceana suggested that NMFS should fully consider both 
the use of the area and the effects of both acute and chronic stressors 
on the health and fitness of North Atlantic right whales. Oceana 
asserts that chronic stressors are an emerging concern for North 
Atlantic right whale conservation and recovery and a recent peer-
reviewed study suggests that a range of stresses on North Atlantic 
right whales have stunted growth rates (Stewart et al. 2021). Oceana 
noted that disruptive site characterization activities may do more than 
startle or spook North Atlantic right whales in this area and may cause 
chronic stress to the whales or cause the whales to seek other feeding 
areas at great energetic cost, decreasing their fitness, body condition 
and ability to successfully feed, socialize and mate.
    Response: NMFS agrees with Oceana that both acute and chronic 
stressors are of concern for North Atlantic right whale conservation 
and recovery. We recognize that acute stress from acoustic exposure is 
one potential impact of these surveys, and that chronic stress can have 
fitness, reproductive, etc. impacts at the population-level scale. NMFS 
has carefully reviewed the best available scientific information in 
assessing impacts to marine mammals, and recognizes that the surveys 
have the potential to impact marine mammals through behavioral effects, 
stress responses, and auditory masking. However, NMFS does not expect 
that the generally short-term, intermittent, and transitory marine site 
characterization survey activities would create conditions of acute or 
chronic acoustic exposure leading to long-term physiological stress 
responses in marine mammals. NMFS has also prescribed a robust suite of 
mitigation measures, such as time-area limitations and extended 
distance shutdowns for certain species that are expected to further 
reduce the duration and intensity of acoustic exposure, while limiting 
the potential severity of any possible behavioral disruption. The 
potential for chronic stress was evaluated in making the determinations 
presented in NMFS's negligible impact analyses.
    Comment 7: Oceana asserted that NMFS must fully consider the 
discrete effects of each activity and the cumulative effects of the 
suite of approved, proposed and potential activities on marine mammals 
and North Atlantic right whales in particular and ensure that the 
cumulative effects are not excessive before issuing or renewing an IHA. 
They noted that this was specifically important given the large number 
of offshore wind-related activities being considered in the northeast 
region.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for consideration of other unrelated activities and 
their impacts on populations. The preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989) states in response to 
comments that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, 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 1989 implementing regulations also addressed public 
comments regarding cumulative effects from future, unrelated 
activities. There NMFS stated that such effects are not considered in 
making findings under section 101(a)(5) concerning negligible impact. 
In this case, both this Renewal IHA, as well as other IHAs currently in 
effect or proposed within the specified geographic region, are 
appropriately considered an unrelated activity relative to the others. 
The IHAs are unrelated in the sense that they are discrete actions 
under section 101(a)(5)(D), issued to discrete applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. 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. Here, Vineyard Wind was the applicant for the Renewal IHA, 
and we are responding to the specified activity as described in that 
application and request for renewal (and making the necessary findings 
on that basis). Through the response to public comments in the 1989 
implementing regulations, we also indicated (1) that NMFS would 
consider cumulative effects that are reasonably foreseeable when 
preparing a NEPA analysis, and (2) that reasonably foreseeable 
cumulative effects would also be considered under section 7 of the ESA 
for ESA-listed species. In this case, cumulative impacts have been 
adequately addressed under NEPA in prior environmental analyses that 
form the basis for NMFS' determination that this action is 
appropriately categorically excluded from further NEPA analysis.
    NMFS has previously written Environmental Assessments (EA) that 
addressed cumulative impacts related to substantially similar 
activities, in similar locations, e.g., 2019 [Oslash]rsted EA for 
survey activities offshore southern New England; 2019 Avangrid EA for 
survey activities offshore North Carolina and Virginia; 2018 Deepwater 
Wind EA for survey activities offshore Delaware, Massachusetts, and 
Rhode Island.
    Separately, cumulative effects were analyzed as required through 
NMFS' required intra-agency consultation under section 7 of the ESA, 
which determined that NMFS' action of issuing the IHA or Renewal IHA is 
not likely to adversely affect listed marine mammals or their critical 
habitat.
    Comment 8: The ENGOs stated that the recent designation of Gulf of 
Maine humpback whales as a strategic stock should be explicitly 
considered by NMFS as part of the Renewal IHA.
    Response: NMFS acknowledges that the status of the Gulf of Maine 
humpback whale stock changed from non-strategic to strategic in the 
2020 U.S. Atlantic and Gulf of Mexico Draft Marine Mammal Stock 
Assessment Report (available online at https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports) and that we omitted this status change in the Description of 
Marine Mammals in the Federal Register notice of the proposed Renewal 
IHA (85 FR 30435, June 08, 2021). We have revised the Federal Register 
notice of the authorized Renewal IHA to include this change.
    NMFS does not expect that the generally short-term, intermittent, 
and transitory HRG activities and the minor amount of take of humpback 
whales by Level B harassment (up to 2.1 percent of the population) 
would have meaningful impacts on the reproduction or survival on any 
individual humpback whale and, therefore, no impacts at the stock level 
are expected. Moreover, the population of interest is the West Indies 
Distinct Population Segment (DPS) of which the Gulf of Maine stock is 
just one feeding population. Therefore, this information regarding the 
strategic listing of the Gulf of Maine humpback whale stock does

[[Page 38308]]

not change our initial analysis and determination.
    Comment 9: The ENGO's noted that harbor porpoises are particularly 
sensitive to noise, and, therefore, impacts to this species must be 
minimized and mitigated to the full extent practicable during offshore 
wind siting and development activities.
    Response: Harbor porpoises are classified as high-frequency 
cetaceans (NMFS 2018) and are the hearing group with the lowest PTS 
onset thresholds, with maximum susceptibility to frequencies between 20 
and 40 kHz (susceptibility decreases with outside this frequency 
range). However, the largest modeled distance to the Level A harassment 
threshold for HF cetaceans was 60 m. Furthermore, this is a 
conservative assessment given that the model used to determine PTS 
isopleths treats all devices as impulsive and results in significant 
overestimates for non-impulsive devices, since PTS onset thresholds are 
lower for impulsive sources compare to non-impulsive sources. Level A 
harassment would also be more likely to occur at close approach to the 
sound source or as a result of longer duration exposure to the sound 
source, and mitigation measures--including a 100 m exclusion zone (EZ) 
for harbor porpoises--are expected to minimize the potential for close 
approach or longer duration exposure to active HRG sources. In 
addition, harbor porpoises are known to be behaviorally sensitive 
species, in that they respond to comparatively lower received levels 
and are known to avoid vessels and other sound sources and, therefore, 
harbor porpoises would also be expected to avoid a sound source prior 
to that source reaching a level that would result in injury (Level A 
harassment). Therefore, NMFS has determined that take of harbor 
porpoises or any other animal by Level A harassment is unlikely to 
occur and has not authorized any such takes. Any takes by Level B 
harassment are anticipated to be limited to brief startling reactions 
and/or temporary avoidance of the Project Area. Further, appropriate 
mitigation measures have been included to ensure the least practicable 
adverse impact on harbor porpoises and other marine mammal species. No 
harbor porpoises were observed by Vineyard Wind in their initial year 
of survey activities according to their preliminary monitoring report, 
further supporting the potential for harassment to be discountable.
    Comment 10: The ENGOs recommended that NMFS should prohibit the 
commencement of geophysical surveys at night to maximize the 
probability that marine mammals are detected and confirmed clear of the 
EZs. The commenters asserted that initiation of work should occur with 
ramp-up, only during daylight hours.
    Response: NMFS acknowledges the limitations inherent in detection 
of marine mammals at night. However, no injury is expected to result 
even in the absence of mitigation, given the characteristics of the 
sources planned for use (supported by the very small estimated Level A 
harassment zones; i.e., <60 m). The ENGOs do not provide any support 
for the apparent contention that injury is a potential outcome of these 
activities. Regarding Level B harassment, any potential impacts would 
be limited to short-term behavioral responses, as described in greater 
detail herein. The commenters establish that the status of North 
Atlantic right whales in particular is precarious. NMFS agrees in 
general with the discussion of this status provided by the commenters. 
Note that NMFS considers impacts from this category of survey 
operations to be near de minimis, with the potential for Level A 
harassment for any species to be discountable and the severity of Level 
B harassment (and, therefore, the impacts of the take event on the 
affected individual), if any, to be low. NMFS is also requiring 
Vineyard Wind to deploy two PSOs during nighttime hours who must have 
access to night-vision equipment (i.e., night-vision goggles and/or 
infrared technology). Given these factors, NMFS does not believe that 
there is a need for more restrictive mitigation requirements.
    Restricting surveys in the manner suggested by the commenters may 
reduce marine mammal exposures by some degree in the short term, but 
would not result in any significant reduction in either intensity or 
duration of noise exposure. Vessels would also potentially be on the 
water for an extended time introducing noise into the marine 
environment. The restrictions recommended by the commenters could 
result in the surveys spending increased time on the water, which may 
result in greater overall exposure to sound for marine mammals; thus 
the commenters have not demonstrated that such a requirement would 
result in a net benefit. Furthermore, restricting the ability of the 
applicant to begin operations only during daylight hours would have the 
potential to result in lengthy shutdowns of the survey equipment, which 
could result in the applicant failing to collect the data they have 
determined is necessary and, subsequently, the need to conduct 
additional surveys in the future. This would result in significantly 
increased costs incurred by the applicant. Thus the restriction 
suggested by the commenters would not be practicable for the applicant 
to implement. In consideration of the likely effects of the activity on 
marine mammals absent mitigation, potential unintended consequences of 
the measures as proposed by the commenters, and practicability of the 
recommended measures for the applicant, NMFS has determined that 
restricting operations as recommended is not warranted or practicable 
in this case.
    Comment 11: Oceana recommended that when HRG surveys are safe to 
resume after a shutdown event, the surveys should be required to use a 
soft start, ramp-up procedure to encourage any nearby marine life to 
leave the area.
    Response: NMFS agrees with this recommendation and included in the 
Federal Register notice of the proposed IHA (85 FR 7952, February 02, 
2020), the initial IHA (85 FR 26940, May 05, 2020), the proposed 
Renewal IHA (85 FR 30435, June 08, 2021) and this final Renewal IHA a 
stipulation that when technically feasible, survey equipment must be 
ramped up at the start or restart of survey activities. Ramp-up must 
begin with the power of the smallest acoustic equipment at its lowest 
practical power output appropriate for the survey. When technically 
feasible the power must then be gradually turned up and other acoustic 
sources added in a way such that the source level would increase 
gradually.
    Comment 12: Based on the assertion that the 160 dB threshold for 
behavioral harassment is not supported by best available scientific 
information and grossly underestimates Level B take, the ENGOs 
recommended that NMFS establish an EZ of 1,000 m around each vessel 
conducting activities with noise levels that they assert could result 
in injury or harassment to North Atlantic right whales, and a minimum 
EZ of 500 m for all other large whale species and strategic stocks of 
small cetaceans. Oceana also recommended that zones for North Atlantic 
right whales extend at least 1,000 m, but did not provide reasoning for 
this zone size. The ENGOs further note that they consider source levels 
greater than 180 dB re 1 [mu]Pa (SPL) at 1-meter at frequencies between 
7 Hz and 35 kHz to be potentially harmful to low-frequency cetaceans.
    Response: NMFS disagrees with this recommendation and the assertion 
that the 160 dB threshold for behavioral harassment is not supported by 
best

[[Page 38309]]

available scientific information and grossly underestimates take by 
Level B harassment (see Comment 5 for a discussion regarding why NMFS 
uses the 160 dB threshold). It is unclear to NMFS how the commenters 
determined that source levels greater than 180 dB re 1 [mu]Pa (SPL) are 
potentially harmful to low-frequency cetaceans. NMFS historically 
applied a received level (not source level) root mean square (rms) 
threshold of 180 dB SPL as the potential for marine mammals to incur 
PTS (i.e., Level A (injury) harassment); however, in 2016, NMFS 
published it Technical Guidance for Assessing the Effects of 
Anthropogenic Sound on Marine Mammal Hearing which updated the 180 dB 
SPL Level A harassment threshold. Since that time, NMFS has been 
applying dual threshold criteria based on both peak and a weighted (to 
account for marine mammal hearing) cumulative sound exposure level. 
NMFS released a revised version of the Technical Guidance in 2018. We 
encourage the ENGOs to review the Technical Guidance available at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance to inform future reviews of 
any proposed IHA on which they may wish to comment. As described in the 
Estimated Take section, NMFS has established a PTS (Level A harassment) 
threshold of 183 dB cumulative SEL for low frequency specialists, and a 
right whale would need to approach within 2 meters of the source to 
potentially incur PTS from the largest source.
    Regarding the shutdown zone recommendation, we note that the 500-m 
EZ for North Atlantic right whales exceeds the modeled distance to the 
largest 160-dB Level B harassment isopleth distance (195 m) by a 
substantial margin. Given that calculated Level B harassment isopleths 
are likely conservative, and NMFS considers impacts from HRG survey 
activities to be near de minimis, a 100-m shutdown for other marine 
mammal species (including large whales and strategic stocks of small 
cetaceans) is sufficiently protective to effect the least practicable 
adverse impact on those species and stocks. Further, as discussed in 
Comment 10, no injury is expected to result even in the absence of 
mitigation, given the characteristics of the sources planned for use 
(supported by the very small estimated Level A harassment zones; i.e., 
<60 m).
    Comment 13: Oceana recommended that a shutdown of HRG equipment be 
required should a North Atlantic right whale or other protected species 
enter an EZ, unless necessary for human safety. They further 
recommended that if and when such an exemption occurs the project must 
immediately notify NMFS with reasons and explanation for exemption and 
a summary of the frequency of these exceptions must be publicly 
available to ensure that these are the exception rather than the norm 
for the project.
    Response: There are several shutdown requirements described in the 
Federal Register notice of the proposed IHA (85 FR 7952, February 02, 
2020), the initial IHA (85 FR 26940, May 05, 2020), the proposed 
Renewal IHA (85 FR 30435, June 08, 2021) and which are included in this 
final Renewal IHA, including the stipulation that geophysical survey 
equipment must be immediately shut down if any marine mammal is 
observed within or entering the relevant EZs while geophysical survey 
equipment is operational. There is no exemption for human safety and it 
is unclear what exemption the commenter is referring to. In regards to 
reporting, Vineyard Wind must notify NMFS if a North Atlantic right 
whale is observed at any time by any project vessels during surveys or 
during vessel transit. Additionally, Vineyard Wind is required to 
report the relevant survey activity information, such as such as the 
type of survey equipment in operation, acoustic source power output 
while in operation, and any other notes of significance (i.e., pre-
clearance survey, ramp-up, shutdown, end of operations, etc.) as well 
as the estimated distance to an animal and its heading relative to the 
survey vessel at the initial sighting and survey activity information. 
As documented in Vineyard Wind's preliminary monitoring report for the 
surveys completed under the initial IHA authorization (available on our 
website at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act), except for 
instances of voluntary approaches by delphinids, there were no 
instances where marine mammals were observed within the required 
shutdown zone and shutdown procedures were not implemented. If a right 
whale is detected within the EZ before a shutdown is implemented, the 
right whale and its distance from the sound source, including whether 
it is within the Level B or Level A harassment zones, would be reported 
in Vineyard Wind's final monitoring report and made publically 
available on our website. Vineyard Wind is required to immediately 
notify NMFS of any sightings of North Atlantic right whales and report 
upon survey activity information so that comment is not applicable to 
this Renewal IHA.
    Comment 14: The ENGOs and Oceana recommended that a combination of 
visual monitoring by PSOs and PAM should be used at all times that 
survey work is underway in order to monitor exclusion zones and 
maximize the detection of protected species and stocks. The ENGOs also 
mentioned that while the previously issued IHA indicated that Vineyard 
Wind will voluntarily employ PAM to support monitoring at night, there 
is no reference to PAM in the ``Monitoring Measures'' section of that 
document, nor the proposed Renewal IHA and requested that this measure 
be clarified by NMFS.
    Response: The foremost concern expressed by the ENGOs and Oceana in 
making the recommendation to require use of PAM is with regard to North 
Atlantic right whales. However, the commenters do not explain why they 
expect that PAM would be effective in detecting vocalizing mysticetes. 
It is generally well-accepted fact that, even in the absence of 
additional acoustic sources, using a towed passive acoustic sensor to 
detect baleen whales (including right whales) is not typically 
effective because the noise from the vessel, the flow noise, and the 
cable noise are in the same frequency band and will mask the vast 
majority of baleen whale calls. Vessels produce low-frequency noise, 
primarily through propeller cavitation, with main energy in the 5-300 
Hertz (Hz) frequency range. Source levels range from about 140 to 195 
decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC 2003, Hildebrand 
2009), depending on factors such as ship type, load, and speed, and 
ship hull and propeller design. Studies of vessel noise show that it 
appears to increase background noise levels in the 71-224 Hz range by 
10-13 dB (Hatch et al. 2012, McKenna et al. 2012, Rolland et al. 2012). 
PAM systems employ hydrophones towed in streamer cables approximately 
500 m behind a vessel. Noise from water flow around the cables and from 
strumming of the cables themselves is also low-frequency and typically 
masks signals in the same range. Experienced PAM operators 
participating in a recent workshop (Thode et al. 2017) emphasized that 
a PAM operation could easily report no acoustic encounters, depending 
on species present, simply because background noise levels rendered any 
acoustic detection impossible. The same workshop report stated that a 
typical eight-element array towed 500 m behind a vessel could be 
expected to detect delphinids, sperm whales, and beaked

[[Page 38310]]

whales at the required range, but not baleen whales, due to expected 
background noise levels (including seismic noise, vessel noise, and 
flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys such as the one planned by 
Vineyard Wind. While NMFS agrees that PAM can be an important tool for 
augmenting detection capabilities in certain circumstances, its utility 
in further reducing impact for Vineyard Wind's HRG survey activities is 
limited. First, for this activity, the area expected to be ensonified 
above the Level B harassment threshold is relatively small (a maximum 
of 195 m)--this reflects the fact that, to start with, the source level 
is comparatively low and the intensity of any resulting impacts would 
be lower level and, further, it means that inasmuch as PAM will only 
detect a portion of any animals exposed within a zone, the overall 
probability of PAM detecting an animal in the harassment zone is low--
together these factors support the limited value of PAM for use in 
reducing take with smaller zones. PAM is only capable of detecting 
animals that are actively vocalizing, while many marine mammal species 
vocalize infrequently or during certain activities, which means that 
only a subset of the animals within the range of the PAM would be 
detected (and potentially have reduced impacts). Additionally, 
localization and range detection can be challenging under certain 
scenarios. For example, odontocetes are fast moving and often travel in 
large or dispersed groups which makes localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for right whales and other low frequency cetaceans, species 
for which PAM has limited efficacy), and the cost and impracticability 
of implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to ensure the least 
practicable adverse impact on the affected species or stocks and their 
habitat. However, we note that Vineyard Wind has stated their intention 
to voluntarily implement PAM during night operations as an added 
precautionary measure even though this is not a NMFS requirement.
    Comment 15: The ENGOs recommended that the passive acoustic 
monitors for this and future wind development projects should be part 
of a migratory corridor-wide network of passive acoustic monitors 
organized by NOAA and BOEM in collaboration with state governments as 
well as private, academic, and non-profit partners. They also 
recommended that NMFS should also advance a robust and effective near 
real-time monitoring and mitigation system for North Atlantic right 
whales and other endangered and protected species that will be more 
responsive to the ongoing dynamic species distributional shifts 
resulting from climate change, as well as provide more flexibility to 
developers during offshore wind energy development.
    Response: NMFS is generally supportive of these concepts. A network 
of near real-time baleen whale monitoring devices are active or have 
been tested in portions of New England and Canadian waters. These 
systems employ various digital acoustic monitoring instruments which 
have been placed on autonomous platforms including slocum gliders, wave 
gliders, profiling floats and moored buoys. Systems that have proven to 
be successful will likely see increased use as operational tools for 
many whale monitoring and mitigation applications. In 2020, NMFS 
convened a workshop to address objectives related to monitoring North 
Atlantic right whales. The NMFS publication by Oleson et al. (2020) 
titled ``Technical Memorandum NMFS-OPR-64: North Atlantic Right Whale 
Monitoring and Surveillance: Report and Recommendations of the National 
Marine Fisheries Service's Expert Working Group'', and available at: 
https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations, 
summarizes information from the workshop and presents the Expert 
Working Group's recommendations for a comprehensive monitoring strategy 
to guide future analyses and data collection. Among the numerous 
recommendations found in the report, the Expert Working Group 
encouraged the widespread deployment of auto-buoys to provide near 
real-time detections of North Atlantic right whale calls that visual 
survey teams can then respond to for collection of identification 
photographs or biological samples.
    In regards to the current Renewal IHA, NMFS cannot require Vineyard 
Wind to be a part of such monitoring networks until such a network of 
monitoring devices is formalized. However, NMFS will consider 
implementing such measures in the future should such a network be 
developed.
    Comment 16: The ENGOs recommended that Vineyard Wind must employ a 
minimum of four PSOs following a two-on/two-off rotation, each 
responsible for scanning no more than 180[deg] of the horizon during 
both daylight and nighttime hours, while Oceana recommended that all 
vessels associated with the proposed Vineyard Wind marine site 
characterization should be required to carry and use PSOs at all times 
when underway. Both commenters also recommended that infrared equipment 
should be during daylight hours to maximize the probability of 
detection of marine mammals. The ENGOs requested that NMFS clarify what 
visual monitoring measures are required and/or will be employed by 
Vineyard Wind to monitor the exclusion, buffer, and monitoring zones 
during daylight hours, poor visibility conditions, and at night.
    Response: NMFS typically requires that a single PSO must be 
stationed at the highest vantage point and engaged in general 360-
degree scanning during daylight hours. Although NMFS acknowledges that 
the single PSO cannot reasonably maintain observation of the entire 
360-degree area around the vessel, it is reasonable to assume that the 
single PSO engaged in continual scanning of such a small area (i.e., 
500-m EZ, which is greater than the maximum 195-m harassment zone) will 
be successful in detecting marine mammals that are available for 
detection at the surface. Despite this, Vineyard Wind has committed to 
a minimum of two NMFS-approved PSOs on duty and conducting visual 
observations on all survey vessels at all times when HRG survey 
equipment is in use (i.e., daylight and nighttime operations). NMFS has 
analyzed the potential for incidental take resulting from Vineyard 
Wind's activity and have determined that based on the nature of the 
activities, and in consideration of the mitigation measures included in 
the initial IHA and the Renewal IHA, the potential for incidental take 
when HRG activities are not operational is so low as to be 
discountable.
    The monitoring reports submitted to NMFS have demonstrated that 
PSOs active only during daylight operations are able to detect marine 
mammals and implement appropriate mitigation measures. Nevertheless, as 
night vision technology has continued to improve, NMFS has adapted its 
practice, and two PSOs are required to be on duty at night on source 
vessels. NMFS included a requirement in the final IHA and the Renewal 
IHA that night-vision

[[Page 38311]]

equipment (i.e., night-vision goggles with thermal clip-ons and 
infrared/thermal imaging technology) must be available for use. Survey 
operators are not required to provide PSOs with infrared devices during 
the day but observers are not prohibited from employing them. Given 
that use of infrared devices for detecting marine mammals during the 
day has been shown to be helpful under certain conditions, NMFS will 
consider requiring them to be made accessible for daytime PSOs. NMFS is 
also requiring that all PSOs be equipped with reticulated binoculars 
and have the ability to estimate distances to marine mammals located in 
proximity to the vessel and/or EZs using range finders based on 
conditions and visibility to support the sighting and monitoring of 
marine species. The visual monitoring measures required in the Renewal 
IHA are identical to those required in the initial IHA and were 
explained in detail in the associated notices (85 FR 7952, February 02, 
2020; 85 FR 26940, May 05, 2020). We have determined that the PSO 
requirements in the IHA are sufficient to ensure the least practicable 
adverse impact on the affected species or stocks and their habitat.
    Comment 17: The ENGOs and Oceana both expressed concerns that the 
proposed Renewal IHA sets no requirement to minimize the impacts of 
underwater noise through the use of best available technology and other 
methods to minimize sound levels from geophysical surveys. The ENGOs 
recommended that NMFS should require Vineyard Wind to select sub-bottom 
profiling systems for survey activities, and operate those systems at 
power settings that achieve the lowest practicable source level for the 
objective. Oceana recommended that to be consistent with the 
requirement to achieve ``the least practicable impact on such species 
or stock and its habitat,'' the IHA must include conditions for the 
survey activities that will first avoid adverse effects on North 
Atlantic right whales in and around the survey site and then minimize 
and mitigate the effects that cannot be avoided. They state that this 
should include a full assessment of which activities, technologies and 
strategies are truly necessary to provide information to inform 
development of Vineyard Wind and which are not critical. If, for 
example, a lower impact technique or technology will provide necessary 
information about the site without adverse effects, Oceana recommended 
that technique or technology should be permitted while other tools with 
more frequent, intense or long-lasting effects should be prohibited. In 
general, the ENGOs and Oceana asserted that NMFS must require that all 
IHA applicants minimize the impacts of underwater noise to the fullest 
extent feasible, including through the use of best available technology 
and methods to minimize sound levels from geophysical surveys.
    Response: The MMPA requires that an IHA include measures that will 
effect the least practicable adverse impact on the affected species and 
stock and, in practice, NMFS agrees that the IHA should include 
conditions for the survey activities that will first avoid adverse 
effects on North Atlantic right whales in and around the survey site, 
where practicable, and then minimize the effects that cannot be 
avoided. NMFS has determined that the Renewal IHA meets this 
requirement to effect the least practicable adverse impact. Oceana does 
not make any specific recommendations of measures to add to the Renewal 
IHA other than assessing which technologies and strategies are truly 
necessary to provide information to inform development of Vineyard 
Wind. While the ENGOs recommend the use of sub-bottom profiling 
systems, the Vineyard Wind energy developers selected the equipment 
necessary during HRG surveys to achieve their objectives (which 
includes shallow sub-bottom profilers). As part of the analysis for all 
marine site characterization survey IHAs, NMFS evaluated the effects 
expected as a result of use of the specified activity (i.e., the 
equipment described here), made the necessary findings, and imposed 
mitigation requirements sufficient to achieve the least practicable 
adverse impact on the affected species and stocks of marine mammals. It 
is not within NMFS' purview to make judgments regarding what 
constitutes the ``lowest practicable source level'' for an operator's 
survey objectives or the appropriate techniques or technologies for an 
operator's survey objectives.
    Comment 18: The ENGOs and Oceana both generally recommended that 
NMFS require all vessels of all sizes associated with the proposed 
survey activities to speeds less than 10 kn at all times with no 
exemptions due to the risk of ship strikes to North Atlantic right 
whales and other large whales. The ENGOs requested clarification 
regarding whether the requirement that project-related vessels of any 
size limit speeds to 10 kn or less within active SMAs or DMAs was still 
applicable to the Renewal IHA as this measure was included in the 
issued IHA but not restated in the Proposed Renewal IHA. The ENGOs also 
asserted that NMFS must acknowledge that vessel strikes can result in 
take by Level A harassment, and that NMFS must explicitly analyze the 
potential for such take resulting from vessel collisions in its take 
analysis for Vineyard Wind.
    Response: While NMFS acknowledges that vessel strikes can result in 
Level A harassment or mortality, we have analyzed the potential for 
ship strike resulting from Vineyard Wind's activity and have determined 
that based on the nature of the activity and the required mitigation 
measures specific to ship strike avoidance included in the Renewal IHA, 
potential for ship strike is so low as to be discountable. These 
mitigation measures, which were included in the initial IHA, summarized 
in the Proposed Renewal IHA, and are likewise required in the Renewal 
IHA, include: A requirement that all vessel operators reduce vessel 
speed to 10 kn (18.5 km/hour) or less when any large whale, any mother/
calf pairs, pods, or large assemblages of non-delphinoid cetaceans are 
observed within 100 m of an underway vessel; a requirement that all 
survey vessels maintain a separation distance of 500-m or greater from 
any sighted North Atlantic right whale while underway; a requirement 
that, if underway, vessels must steer a course away from any sighted 
North Atlantic right whale at 10 kn or less until the 500-m minimum 
separation distance has been established; a requirement that, if a 
North Atlantic right whale is sighted in a vessel's path, or within 500 
m of an underway vessel, the underway vessel must reduce speed and 
shift the engine to neutral; a requirement that all vessels underway 
must maintain a minimum separation distance of 100 m from any sighted 
non-delphinoid species; and a requirement that all vessels underway 
must, to the maximum extent practicable, attempt to maintain a minimum 
separation distance of 50 m from all other marine mammals, with an 
understanding that at times this may not be possible (e.g., for animals 
that approach the vessel). For clarification, the requirement that all 
vessel operators comply with 10 kn (18.5 km/hour) or less speed 
restrictions in any SMA or DMA while underway is also still a required 
mitigation measure and applicable to the Renewal IHA. We have 
determined that the ship strike avoidance measures in the Renewal IHA 
are sufficient to ensure the least practicable adverse impact on 
species or stocks and their habitat. We note that no documented vessel 
strikes have occurred for any marine site characterization surveys 
which were

[[Page 38312]]

issued IHAs from NMFS during the survey activities themselves, or while 
transiting to and from project sites.
    Comment 19: Oceana commented that the IHA must include requirements 
for all vessels to maintain a separation distance of at least 500 m 
from North Atlantic right whales at all times.
    Response: NMFS agrees with Oceana and has stipulated in both the 
Federal Register notice of proposed Renewal IHA (85 FR 30435, June 08, 
2021) and this Renewal IHA that survey vessels must maintain a 
separation distance of 500 m or greater from any sighted North Atlantic 
right whale. Further, if a whale is observed but cannot be confirmed as 
a species other than a right whale, NMFS requires that the vessel 
operator must assume that it is a right whale and maintain a minimum 
separation distance of 500 m.
    Comment 20: Oceana recommended that the Renewal IHA should require 
all vessels to be equipped with and using Class A Automatic 
Identification System (AIS) devices at all times while on the water in 
order to support oversight and enforcement of the conditions of the HRG 
survey. Oceana suggested this requirement should apply to all vessels, 
regardless of size, associated with the project.
    Response: NMFS is generally supportive of the idea that vessels 
involved with survey activities be equipped with and using Class A 
Automatic Identification System (devices) at all times while on the 
water. Indeed, there is a precedent for NMFS requiring such a 
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268, 
December 7, 2018); however, these activities were much louder than the 
marine site characterization surveys to be carried out by Vineyard Wind 
and resulted in the potential for both Level A and Level B harassment 
take. Given the small isopleths and small numbers of take authorized by 
this IHA, NMFS does not agree that the benefits of requiring AIS on all 
vessels associated with the survey activities outweighs and warrants 
the cost and impracticability of this requirement to Vineyard Wind.
    Comment 21: Oceana asserted that the IHA must include requirements 
to specify and require all vessels associated with the project, at all 
phases of development, follow the vessel plan and rules including 
vessels owned by the developer, contractors, employees, and others 
regardless of ownership, operator, contract. They noted that exceptions 
and exemptions will create enforcement uncertainty and incentives to 
evade regulations through reclassification and redesignation. They 
recommended that NMFS can simplify this by requiring all vessels to 
abide by the same requirements, regardless of size, ownership, 
function, contract or other specifics. They also recommended that the 
IHA must also include a condition to specify that developers are 
explicitly liable for behavior of all employees, contractors, 
subcontractors, consultants, and associated vessels and machinery.
    Response: NMFS agrees with Oceana and required these measures in 
the initial IHA and the Renewal IHA. The IHA requires that a copy of 
the IHA must be in the possession of Vineyard Wind, the vessel 
operators, the lead PSO, and any other relevant designees of Vineyard 
Wind operating under the authority of this IHA. The IHA also states 
that Vineyard Wind must ensure that the vessel operators and other 
relevant vessel personnel are briefed on all responsibilities, 
communication procedures, marine mammal monitoring protocols, 
operational procedures, and IHA requirements prior to the start of 
survey activity, and when relevant new personnel join the survey 
operations. Further the IHA includes a measure that states that the IHA 
may be modified, suspended or withdrawn if the holder fails to abide by 
the conditions prescribed in the IHA, or if NMFS determines the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals.
    Comment 22: Oceana stated that the IHA must include a requirement 
for all phases of the Vineyard Wind site characterization to subscribe 
to the highest level of transparency, including frequent reporting to 
Federal agencies, requirements to report all visual and acoustic 
detections of North Atlantic right whales and any dead, injured, or 
entangled marine mammals to the Fisheries Service or the Coast Guard as 
soon as possible and no later than the end of the Protected Species 
Observer shift. To foster stakeholder relationships and allow public 
engagement and oversight of the permitting, the IHA should require all 
reports and data to be accessible on a publicly available website.
    Response: NMFS agrees with the need for reporting and indeed, the 
MMPA calls for IHAs to incorporate reporting requirements. As included 
in the initial IHA and the proposed Renewal IHA, the Renewal IHA 
includes requirements for reporting that supports Oceana's 
recommendations. Vineyard Wind is required to submit a monitoring 
report to NMFS within 90 days after completion of survey activities 
that fully documents the methods and monitoring protocols, summarizes 
the data recorded during both visual and passive acoustic monitoring, 
estimates the number of marine mammals that may have been taken during 
survey activities, and describes, assesses and compares the 
effectiveness of monitoring and mitigation measures. PSO datasheets or 
raw sightings data must also be provided with the draft and final 
monitoring report. Further the Renewal IHA stipulates that if a North 
Atlantic right whale is observed at any time by any project vessels, 
during surveys or during vessel transit, Vineyard Wind must immediately 
report sighting information to the NMFS North Atlantic Right Whale 
Sighting Advisory System and to the U.S. Coast Guard, and that any 
discoveries of injured or dead marine mammals be reported by Vineyard 
Wind to the Office of Protected Resources, NMFS, and to the New 
England/Mid-Atlantic Regional Stranding Coordinator as soon as 
feasible. All reports and associated data submitted to NMFS are 
included on the project website for public inspection.
    Comment 23: The ENGOs objected to NMFS' process to consider 
extending any one-year IHA with a truncated 15-day comment period as 
contrary to the MMPA.
    Response: NMFS' IHA renewal process meets all statutory 
requirements. In prior responses to comments about Renewal IHAs (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
renewal process.
    All IHAs issued, whether an initial IHA or a Renewal IHA, are valid 
for a period of not more than one year, and the public has at least 30 
days to comment on all proposed IHAs, with a cumulative total of 45 
days for Renewal IHAs. As noted above, the Request for Public Comments 
section made clear that the agency was seeking comment on both the 
proposed IHA and the potential issuance of a renewal for this project. 
Because any Renewal IHA (as explained in the Request for Public 
Comments section) is limited to another year of identical or nearly 
identical activities in the same location (as described in the 
Description of the Specified Activities and Anticipated

[[Page 38313]]

Impacts section) or the same activities that were not completed within 
the one-year period of the initial IHA, reviewers have the information 
needed to effectively comment on both the immediate proposed IHA and a 
possible one-year Renewal IHA, should the IHA holder choose to request 
one.
    While there are additional documents submitted with a renewal 
request, for a qualifying Renewal IHA these will be limited to, as they 
were in this case, documentation that NMFS will make available and use 
to verify that the activities are identical to those in the initial 
IHA, are nearly identical such that the changes would have either no 
effect on impacts to marine mammals or decrease those impacts, or are a 
subset of activities already analyzed and authorized but not completed 
under the initial IHA. NMFS also confirms, as it did for Vineyard 
Wind's renewal request, among other things, that the activities will 
occur in the same location; involve the same species and stocks; 
provide for continuation of the same mitigation, monitoring, and 
reporting requirements; and that no new information has been received 
that would alter the prior analysis. The renewal request also contains 
a preliminary monitoring report, but that is to verify that effects 
from the activities do not indicate impacts of a scale or nature not 
previously analyzed. The additional 15-day public comment period 
provided the public an opportunity to review these few documents, 
provide any additional pertinent information and comment on whether 
they think the criteria for a Renewal IHA have been met. Between the 
initial 30-day comment period on these same activities and the 
additional 15 days, the total comment period for a Renewal IHA is 45 
days.
    In addition to the Renewal IHA process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress' intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for Renewal IHAs in the regulations, description of the 
process and express invitation to comment on specific potential Renewal 
IHAs in the Request for Public Comments section of each proposed IHA, 
the description of the process on NMFS' website, further elaboration on 
the process through responses to comments such as these, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed IHAs and Renewal 
IHAs respectively, NMFS has ensured that the public ``is invited and 
encouraged to participate fully in the agency decision-making 
process.''

Determinations

    The survey activities to be carried out by Vineyard Wind 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 portion of the 
originally planned work. Therefore, the amount of take authorized is 
equal to or less than that authorized in the initial IHA. The potential 
effect of Vineyard Winds' 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 
Vineyard Wind's 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 concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. This includes consideration of the estimated abundances of 
four stocks (North Atlantic right whales, humpback whales, fin whales, 
and minke whales) decreasing and the estimated abundances of one stock 
(common dolphins) increasing (Hayes et al. 2020, Pace 2021) since the 
issuance of the initial IHA. This also includes consideration of 
Vineyard Wind's preliminary monitoring report, increased density 
estimates for North Atlantic right whales based on updated model 
outputs from Roberts et al. (2020) as described above in the Estimated 
Take section, the information supporting the assessment that the 
Project Area includes areas that are important year-round habitats for 
North Atlantic right whales, and the recent designation of Gulf of 
Maine humpback whales as a strategic stock. 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) Vineyard 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.

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 authorized action with respect to environmental 
consequences on the human environment.
    This action is consistent with categories of activities identified 
in CE B4 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 determined 
that the issuance of the Renewal IHA qualifies to be categorically 
excluded from further NEPA review.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we authorize take for 
endangered or threatened species.
    The NMFS Office of Protected Resources is authorizing the 
incidental take of four species of marine mammals which are listed 
under the ESA: The North Atlantic right, fin, sei and sperm whale. On 
April 10, 2013, NMFS Greater Atlantic Regional Fisheries Office (GARFO) 
issued a programmatic Biological Opinion for BOEM Lease and Site 
Assessment Rhode Island, Massachusetts, New York, and New Jersey Wind 
Energy Areas determining site assessment surveys were not likely to 
jeopardize the continued existence of North Atlantic these listed 
species. NMFS requested initiation of consultation under Section 7 of 
the ESA with NMFS GARFO on February 12, 2020, for issuance of the 
initial IHA to

[[Page 38314]]

Vineyard Wind. On April 16, 2020 GARFO issued an amended incidental 
take statement associated with the 2013 Biological Opinion and 
determined that the issuance of the initial IHA was not likely to 
jeopardize the continued existence of North Atlantic right, fin, sei 
and sperm whales. On May 12, 2021, NMFS GARFO determined that their 
initial consultation remains valid for the Renewal IHA and that the 
Renewal IHA 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.

Renewal

    NMFS has issued a Renewal IHA to Vineyard Wind for the take of 
marine mammals incidental to conducting marine site characterization 
survey activities off the coast of Massachusetts in the areas of the 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS-A 0501 and OCS-A 0522) and along 
potential submarine cable routes to landfall locations in 
Massachusetts, Rhode Island, Connecticut, and New York. This Renewal 
IHA is effective from July 15, 2021 through June 20, 2022.

    Dated: July 15, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-15383 Filed 7-19-21; 8:45 am]
BILLING CODE 3510-22-P