Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Massachusetts and Rhode Island, 40469-40494 [2021-16025]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 142 (Wednesday, July 28, 2021)]
[Notices]
[Pages 40469-40494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16025]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB194]


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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Vineyard Wind 1 to incidentally harass, by Level B harassment only, 
marine mammals during marine site characterization surveys off of 
Massachusetts and Rhode Island in the area of Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Area OCS-A 0501 and along the Offshore Export 
Cable Corridor.

DATES: This Authorization is applicable for a period of one year from 
the date of issuance.

FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of 
problems accessing these documents, please call the contact listed 
above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the

[[Page 40470]]

affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On January 29, 2021, NMFS received a request from Vineyard Wind 1 
for an IHA to take marine mammals incidental to marine site 
characterization surveys off of Massachusetts and Rhode Island for the 
501 North wind energy project. The application was deemed adequate and 
complete on May 19, 2021. Vineyard Wind 1's request is for take of a 
small number of 14 species of marine mammals by Level B harassment 
only. Neither Vineyard Wind 1 nor NMFS expects serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate.
    NMFS previously issued an IHA to Vineyard Wind LLC (Vineyard Wind) 
for similar marine site characterization surveys (85 FR 42357; July 14, 
2020), and NMFS has received a request from Vineyard Wind for a renewal 
of that IHA.
    Since issuance of Vineyard Wind's previous IHA (85 FR 42357; July 
14, 2020), Vineyard Wind has split into separate corporate entities, 
Vineyard Wind (to which the previous IHA was issued), and Vineyard Wind 
1, which holds assets associated with the 501 North wind energy 
project. Therefore, although the surveys analyzed in this IHA to 
Vineyard Wind 1 will occur in an area that overlaps with a portion of 
the project area included in the previous Vineyard Wind IHA and renewal 
of that IHA (86 FR 38296; July 20, 2021), this IHA is issued to a 
separate corporate entity (Vineyard Wind 1).

Description of the Specified Activity

Overview

    As part of its overall marine site characterization survey 
operations, Vineyard Wind 1 plans to conduct high-resolution 
geophysical (HRG) surveys in the Lease Area and along the Offshore 
Export Cable Corridor (OECC) off of Massachusetts and Rhode Island.
    The purpose of the marine site characterization surveys is to 
obtain a baseline assessment of seabed/sub-surface soil conditions in 
the Lease Area and cable route corridors to support the siting of 
potential future offshore wind projects. Underwater sound resulting 
from Vineyard Wind 1's planned site characterization survey activities, 
specifically HRG surveys, has the potential to result in incidental 
take of marine mammals in the form of behavioral harassment.

Dates and Duration

    The total duration of survey activities will be approximately 170 
survey days. Each day that a survey vessel is operating counts as a 
single survey day, e.g., two survey vessels operating on the same day 
count as two survey days. This schedule is based on assumed 24-hour 
operations. Vineyard Wind 1 is beginning its survey activities in 
summer 2021, and will be continuing them for up to one year (though the 
actual duration will likely be shorter, particularly given the use of 
multiple vessels). The IHA is effective for one year from the date of 
issuance.

Specific Geographic Region

    Vineyard Wind 1's planned survey activities will occur in the Lease 
Area, located approximately 24 kilometers (km) (13 nautical miles (nm)) 
from the southeast corner of Martha's Vineyard, and along the OECC 
route (landfall) in both Federal and State waters of Massachusetts (see 
Figure 1). The OECC routes will extend from the lease areas to shallow 
water areas near potential landfall locations. Water depths in the 
Lease Area range from about 35 to 60 meters (m; 115 to 197 feet (ft)). 
Water depths along the potential OECC route range from 2.5 to 
approximately 35 m (8 to approximately 115 ft). For the purpose of this 
IHA, the Lease Area and OECC are collectively referred to as the 
project area. The project area for this IHA overlaps with the project 
area for Vineyard Wind's previous IHA (85 FR 42357; July 14, 2020) for 
which NMFS has issued a renewal to Vineyard Wind (86 FR 38296; July 20, 
2021).

[[Page 40471]]

[GRAPHIC] [TIFF OMITTED] TN28JY21.016

Detailed Description of Specific Activity

    Vineyard Wind 1 plans to conduct HRG survey operations, including 
single and multibeam depth sounding, magnetic intensity measurements, 
seafloor imaging, and shallow and medium penetration sub bottom 
profiling. The HRG surveys may be conducted using any or all of the 
following equipment types: Side scan sonar, single and multibeam 
echosounders, magnetometers and gradiometers, parametric sub-bottom 
profiler (SBP), CHIRP SBP, boomers, or sparkers. HRG survey activities 
are anticipated to include multiple survey vessels (up to eight, 
depending on the season), which may operate concurrently, though 
surveys will be spaced to avoid geophysical interference with one 
another. Vineyard Wind 1 assumes that HRG survey activities will be 
conducted continuously 24 hours per day, with an assumed daily survey 
distance of 80 km (43 nm). Survey vessels will maintain a speed of 
approximately 4 knots (2.1 m/second) while surveying, which equates to 
181 km per 24-hour period. However, based on past survey experience 
(i.e., knowledge of typical daily downtime due to weather, system 
malfunctions, etc.), Vineyard Wind 1 assumes 80 km as the average daily 
distance.
    The following acoustic sources planned for use during Vineyard Wind 
1's HRG survey activities are conservatively assumed to have the 
potential to result in incidental take of marine mammals:
     Shallow Penetration Sub-bottom Profilers (SBP; Chirps) to 
map the near-surface stratigraphy (top 0 to 5 m (0 to 16 ft)) of 
sediment below seabed). A chirp system emits sonar pulses that increase 
in frequency from about 2 to 20 kHz over time. The pulse length 
frequency range can be adjusted to meet project variables. These 
sources are typically mounted on the hull of the vessel or from a side 
pole; and
     Medium Penetration SBPs (Boomers and Sparkers) to map 
deeper subsurface stratigraphy as needed. A boomer is a broadband sound 
source operating in the 3.5 Hz to 10 kHz frequency range. Sparkers 
create acoustic pulses from 50 Hz to 4 kHz omnidirectionally from the 
source that can penetrate several hundred meters into the seafloor. 
These sources are typically towed behind the vessel.
    Additional acoustic sources not expected to have the potential to 
cause take of marine mammals were described in the notice of proposed 
IHA (86 FR 30266; June 7, 2021). Table 1 identifies the representative 
survey equipment with the expected potential to result in exposure of 
marine mammals and potentially result in take. The make and model of 
the listed survey equipment may vary depending on availability and the 
final equipment choices will vary depending on the final survey design, 
vessel availability, and survey contractor selection.
    HRG surveys are expected to use several equipment types 
concurrently in order to collect multiple aspects of geophysical data 
along one transect. Selection of equipment combinations is based on 
specific survey objectives.

[[Page 40472]]



                                                    Table 1--Summary of Representative HRG Equipment
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                                                                                                                            In-beam source level  (dB)
                         System                              Frequency      Beam width         Pulse        Repetition   -------------------------------
                                                               (kHz)          ([deg])     duration  (ms)    rate  (Hz)          RMS             Pk
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Shallow subbottom profiler (non-impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
EdgeTech Chirp 216......................................            2-16              65               2            3.75             178             182
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Deep seismic profiler (impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applied Acoustics AA251 Boomer..........................          0.2-15             180             0.8               2             205             212
GeoMarine Geo Spark 2000 (400 tip)......................          0.05-3             180             3.4               1             203             213
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: While many of these sources overlap with Vineyard Wind's previous IHA (85 FR 42357; July 14, 2020), the operating parameters used as proxies in
  modeling some sources were changed as a result of HRG modeling recommendations from NMFS. For data source information, please see Table A-3 in
  Vineyard Wind 1's application.

    Required mitigation, monitoring, and reporting measures are 
described in detail later in this document (see Mitigation Measures and 
Monitoring and Reporting).

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Vineyard Wind 1 was 
published in the Federal Register on June 7, 2021 (86 FR 30266). That 
notice described, in detail, Vineyard Wind 1's activity, the marine 
mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. During the 30-day comment 
period, NMFS received substantive comments from Oceana, and from 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. Summaries of all 
substantive comments, and our responses to these comments, are provided 
here. Please see the comment letters, available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-marine-site-characterization-surveys, for full detail regarding 
the comments received.
    Comment 1: The ENGOs stated that NMFS must ensure undisturbed 
access to foraging habitat to adequately protect North Atlantic right 
whales due to what the commenters describe as an energetically 
expensive foraging strategy. Oceana also noted the importance of the 
project area to North Atlantic right whales year-round, citing Oleson 
et al. (2020).
    Response: As NMFS stated in the proposed IHA, part of the project 
area coincides directly with year-round ``core'' North Atlantic right 
whale foraging habitat (Oleson et al. 2020) 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 
(Oleson et al., 2020). 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 
potentially disturbing levels of underwater noise. There is ample 
foraging habitat adjacent to the project area that will not be 
ensonified by HRG sources, such as in the Great South Channel and 
Georges Bank Shelf Break feeding biologically important area (BIA). 
Furthermore, the spatial acoustic footprint of the survey is very small 
relative to the spatial extent of the available foraging habitat. 
Finally, we have established a 500-m shutdown zone for North Atlantic 
right whales, which is more than twice as large as the greatest Level B 
harassment isopleth calculated for the specified activities for this 
IHA.
    Comment 2: 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 IHA (86 FR 30266; June 7, 2021) and 
this final IHA that survey vessels must maintain a separation distance 
of 500 m or greater from any sighted Endangered Species Act (ESA)-
listed whale or other unidentified large marine mammals visible at the 
surface.
    Comment 3: 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 habitat usage by endangered and protected species 
and stocks 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 should not be the 
only information source relied upon when estimating take. The ENGOs 
note that NMFS did increase the number of Level B harassment takes of 
common dolphins based on the daily rate of observations of this species 
during surveys conducted under Vineyard Wind's previous IHA, and the 
modification to the proposed Mayflower Wind IHA (May 20, 2021; 86 FR 
27393). They note that NMFS compared density estimates derived from 
Mayflower Wind's 2020 HRG survey PSO data with those derived from the 
Roberts et al. (2016, 2017, 2018, 2020) models, and that NMFS used the 
larger of the take estimates as the basis for the proposed number of 
takes. The ENGOs state that rather than relying solely on observations 
previously recorded by the specific project for which authorization is 
currently being sought, NMFS should collectively examine PSO data from 
survey activities by multiple offshore wind energy projects being 
conducted in regional proximity (e.g., off the coasts of Rhode Island 
and Massachusetts), as available, to inform the most conservative take 
estimate for each species and stock.
    Response: Habitat-based density models produced by the Duke 
University Marine Geospatial Ecology

[[Page 40473]]

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 (Roberts et al., 
2016); more information, including the model results and supplementary 
information for each of those models, is available at https://seamap.env.duke.edu/models/Duke/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. 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.
     Increase the resolution of the model beyond 10 kilometers 
(km), if possible.
    All of these objectives were met in developing the Version 9 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 may be additional data that is 
not reflected in the models and/or that may inform our analyses, 
whether because the data were not available to the model authors or 
because the data is more recent than the latest model version for a 
specific taxon. Note there is now a Version 10 update to the North 
Atlantic right whale model which primarily focused on Massachusetts 
Bay, which does not overlap the project area and therefore, is not 
relevant to this IHA. However, Version 10 also included additional 
survey data in the ``Hatteras Island to Nantucket Shoals'' area (a 
portion of which does overlap the project area), which resulted in 
slightly higher densities in part of the project area south of 
Nantucket. While the difference in densities is very minor (0.0016/
km\2\ for Version 9 and 0.0018/km\2\ for Version 10), NMFS updated the 
take estimate for North Atlantic right whale in the final IHA to 
reflect the Version 10 update (see the Estimated Take section). A 
Version 11 model update is also available; however, that model update 
changed predictions in Cape Cod Bay only, which is outside of this 
project area.
    The ENGOs pointed to additional data that can be obtained from 
sightings databases, PAM efforts, satellite telemetry, 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 North 
Atlantic right whales were primarily found to the east of the Project 
Area although, distribution changed seasonally, with one sighting of 
North Atlantic right whale in Lease area OSC-A 0501 in the spring, and 
no other sightings in Vineyard Wind 1's lease area during other 
portions of the year. Limited numbers were found north of the Lease 
Area in the export cable corridor route occurring between Martha's 
Vineyard and Nantucket heading to a landfall location in Falmouth, MA. 
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. 
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 employ seasonal restrictions or 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 1 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 1's Project Area.
    Regarding common dolphins, as noted by the ENGOs, given the number 
of common dolphins observed in the previous Vineyard Wind IHA 
(monitoring report available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-llc-marine-site-characterization-surveys), observed group sizes, and the overlap 
between that project area and the planned project area for this IHA, 
NMFS expects that the density-based common dolphin take estimate 
generated for this IHA may be an

[[Page 40474]]

underestimate, and proposed to authorize takes calculated based on the 
approximate daily rate of take calculated from data included in the 
monitoring report referenced above. NMFS determined this method was 
appropriate, in both the proposed IHA and this final IHA, given the 
large difference between the density-based estimate, and the data 
reported in the monitoring report referenced above. However, NMFS does 
not expect that such a calculation and comparison is necessary for all 
species in all offshore wind IHAs. NMFS agrees that consideration of 
PSO data from previous projects is important, but disagrees with the 
manner in which the data should be considered. Generally, NMFS has high 
confidence in the take estimates generated by the Roberts et al. models 
for the reasons stated above. In occasional instances where there is a 
large difference between the density-based take estimate and previous 
monitoring data in the same area, NMFS agrees that the previous 
monitoring data requires more extensive consideration. However, in most 
cases, particularly for species that occur in smaller groups, the 
Roberts et al. models already generates a conservative take estimate, 
and given the variability in location, seasonality, duration among 
surveys, calculation of an alternate take estimate for purposes of 
comparison with the density-based estimate is generally unnecessary. 
This is proven through review of prior monitoring reports for the 
region, with the aforementioned assumption of common dolphins.
    NMFS will review 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.
    While the ENGO's referenced the additional data discussed above, no 
specific recommendations were made with regard to use of this 
information in informing the take estimates, other than that regarding 
the use of data from monitoring reports associated with previous IHAs. 
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 IHA was conducted, and has considered all available data, 
including sources referenced by the commenters, in reaching its 
determinations in support of issuance of the IHA requested by Vineyard 
Wind 1.
    Comment 4: The ENGOs state that NMFS proposes to estimate take 
based on annual mean density estimates for each species and stock. They 
assert that by averaging monthly density estimates across the entire 
year, the nuances of North Atlantic right whale migration, including 
the elevated density expected during the winter and spring months off 
Rhode Island and Massachusetts, remain unaccounted for. The commenters 
assert that this approach will likely lead to inaccurate take estimates 
and that this approach runs counter to how NMFS has approached 
calculating take in other recent authorizations. For example, in the 
modification of the proposed IHA for Mayflower Wind, LLC (May 20, 2021; 
86 FR 27393), the potential number of monthly takes were calculated by 
multiplying the monthly density for each species by the ensonified 
survey area for the corresponding month, and then summed to produce the 
total density-based calculated take. The commenters state that this 
approach more accurately captures variation in density across the year. 
The ENGOs ask NMFS to recalculate Level B harassment take in the 
proposed IHA to reflect the sum of monthly take estimates for the North 
Atlantic right whale, as well as other species. Further, the ENGOs 
reiterate the requests their groups have previously made that NMFS 
standardize its approach to take estimation and mitigation requirements 
across all authorizations related to offshore wind energy.
    Response: NMFS recognizes that the density of North Atlantic right 
whales, as well as other species, varies by month. In some cases, it is 
appropriate to calculate a monthly take estimate by multiplying the 
monthly density for a species by the respective monthly ensonified 
area, as was done in NMFS' recent modified proposed IHA for Mayflower 
Wind, LLC (May 20, 2021; 86 FR 27393). However, for this IHA, Vineyard 
Wind 1 does not know how much survey activity will occur in which 
months, other than the seasonal restrictions included in this IHA. 
Therefore, in order to conduct a parallel analysis to that included in 
the modified proposed Mayflower IHA, one would theoretically assume 
equal survey activity in each month, in which case the density-based 
take estimate would not change. Further, if one did attempt to consider 
the likelihood of less survey activity due to the seasonal restrictions 
in such a calculation, that would result in a less-conservative take 
estimate for North Atlantic right whales.
    Given the variability in proposed survey activities, and 
differences in available information sources for various projects, a 
standardized approach to take estimation would not always reflect the 
best available science, and therefore, NMFS does not use a standardized 
approach for all authorizations for offshore wind energy. NMFS 
considers the most appropriate approach to take estimation as well as 
the mitigation necessary to effect the least practicable adverse impact 
on the affected species or stocks on a case-by-case basis.
    Comment 5: 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 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 previous IHAs for 
Vineyard Wind.
    Response: NMFS agrees that the best available science should be 
used for assessing North Atlantic right whale abundance estimates in 
the 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 IHA, provides the most 
recent and best available estimate, and suggests 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 IHA (86 FR

[[Page 40475]]

30266; June 7, 2021) and in this final 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 6: The ENGOs recommended that NMFS require the 
implementation of seasonal restrictions on site characterization 
activities that have the potential to injure or harass the North 
Atlantic right whales from December 1, 2021 through April 30, 2022. 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 is concerned about the status of the North Atlantic 
right whale, given that a UME has been in effect for this species since 
June of 2017 and that there have been a number of recent mortalities. 
NMFS appreciates the value of seasonal restrictions under some 
circumstances. However, in this case, we have determined additional 
seasonal restrictions are not warranted since NMFS considers impacts 
from these types of survey operations to be near de minimis. In 
particular, and as detailed in the notice of proposed IHA, the 
available evidence supports a conclusion that no injury to right whales 
(or any species) is likely to occur as a result of the proposed 
activity, regardless of mitigation.
    NMFS, however, is requiring Vineyard Wind 1 to operate no more than 
three concurrent HRG survey vessels, with HRG survey equipment 
operating at or below 180 kHz, from January through April within the 
lease area or export cable corridor, not including coastal and bay 
waters. NMFS is also requiring Vineyard Wind 1 to comply with 
restrictions associated with identified seasonal management areas 
(SMAs) and with dynamic management areas (DMAs) and Slow Zones, if any 
are established near the project area. Furthermore, we have established 
a 500-m shutdown zone for North Atlantic right whales, which is more 
than twice as large as the greatest Level B harassment isopleth 
calculated for the specified activities for this IHA (178 m). Take 
estimation conservatively assumes that these acoustic sources will 
operate on all survey days although it is probable that Vineyard Wind 1 
will only use boomers on a subset of survey days, and on the remaining 
days utilize HRG equipment with smaller Level B harassment isopleths 
and overall less potential to cause disturbance. Therefore, the number 
of Level B harassment takes is likely an overestimate. Finally, 
significantly shortening Vineyard Wind 1's work season is impracticable 
given the number of survey days planned for the specified activity for 
this IHA.
    It is unclear 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 (RL; 
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. The 2018 Technical Guidance is available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance. 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 1 meter of the source to potentially 
incur PTS from the largest source.
    Comment 7: 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 states 
that chronic stressors are an emerging concern for North Atlantic right 
whale conservation and recovery and that 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 asserted 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 8: 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

[[Page 40476]]

making findings under section 101(a)(5) concerning negligible impact. 
In this case, both this 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 1 was the applicant for the IHA, and we 
are responding to the specified activity as described in that 
application (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 have been analyzed as 
required through NMFS' required intra-agency consultation under section 
7 of the ESA for substantially similar activities, in similar locations 
(e.g., the 2013 programmatic Biological Opinion for BOEM Lease and Site 
Assessment Rhode Island, Massachusetts, New York, and New Jersey Wind 
Energy Areas, and the programmatic consultation completed by NMFS 
Greater Atlantic Regional Fisheries Office (GARFO) on June 29, 2021), 
under which GARFO has determined multiple times that NMFS' action of 
issuing IHAs is not likely to adversely affect listed marine mammals or 
their critical habitat.
    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 in the waters off the coast of 
Massachusetts and Rhode Island where this species regularly occurs.
    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 any impulsive source for HF cetaceans was 53 m. 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 RLs 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, and 
no harbor porpoises were observed by Vineyard Wind in their 2020-2021 
year of survey activities according to their preliminary monitoring 
report (https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-llc-marine-site-characterization-surveys).
    Comment 10: The ENGOs recommended that geophysical surveys 
commence, with ramp up, only during daylight hours and periods of good 
visibility to maximize the probability that marine mammals are detected 
and confirmed clear of the exclusion zone before activities begin. If 
the activities are halted or delayed because of documented or suspected 
North Atlantic right whale presence in the area, the ENGOs recommend 
that NMFS should require Vineyard Wind 1 to wait until daylight hours 
and good visibility conditions to recommence survey activities.
    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., <53 m for all impulsive sources). 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. Commenters 
provide no evidence to the contrary. NMFS is also requiring Vineyard 
Wind 1 to employ a PSO during nighttime hours who must have access to 
night-vision equipment (i.e., night-vision goggles and/or infrared 
technology). Given these factors, NMFS has determined that more 
restrictive mitigation requirements are not warranted.
    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,

[[Page 40477]]

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: The ENGOs noted that NMFS states that shutdown, pre-
start clearance, and ramp-up procedures are not required during HRG 
survey operations using only non-impulsive sources (e.g., USBL and 
parametric sub-bottom profilers) other than non-parametric sub-bottom 
profilers (e.g., CHIRPs), and also that pre-clearance and ramp-up, but 
not shutdown, are required when using non-impulsive, non-parametric 
sub-bottom profilers. The ENGOs stated that NMFS should provide a 
detailed rationale for these requirements in the proposed IHA so they 
can be more easily understood and evaluated by the public.
    Response: As noted in the Detailed Description of Specific Activity 
section of the notice of the proposed IHA (86 FR 30266; June 7, 2021), 
NMFS does not expect that sources planned for use by Vineyard Wind 1, 
other than the shallow penetration sub-bottom profilers (SBP; Chirps) 
and medium penetration SBPs (Boomers and Sparkers), will result in take 
of marine mammals, regardless of mitigation. As stated in that section, 
operation of the following survey equipment types is not reasonably 
expected to present risk of marine mammal take for the reasons provided 
below:
     Parametric SBPs, also called sediment echosounders, for 
providing high data density in sub-bottom profiles that are typically 
required for cable routes, very shallow water, and archaeological 
surveys. These sources generate short, very narrow-beam (1[deg] to 
3.5[deg]) signals at high frequencies (generally around 85-100 kHz). 
The narrow beamwidth significantly reduces the potential that a marine 
mammal could be exposed to the signal, while the high frequency of 
operation means that the signal is rapidly attenuated in seawater. 
These sources are typically mounted on the hull of the vessel or from a 
side pole rather than towed behind the vessel;
     Ultra-Short Baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by the vessel transceiver and the equipment 
transponder (or beacon) necessary to produce the acoustic profile. It 
is a two-component system with a hull or pole mounted transceiver and 
one or several transponders either on the seabed or on the equipment. 
USBLs are expected to produce extremely small acoustic propagation 
distances in their typical operating configuration;
     Single beam and Multibeam Echosounders (MBESs) to 
determine water depths and general bottom topography. The proposed 
single beam and MBES all have operating frequencies >180 kHz and are 
therefore outside the general hearing range of marine mammals;
     Side-scan Sonar (SSS) is used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The proposed SSSs all have operating 
frequencies >180 kHz and are therefore outside the general hearing 
range of marine mammals; and
     Magnetometer/Gradiometer has an operating frequency >180 
kHz and is therefore outside the general hearing range of marine 
mammals.
    Therefore, it is not necessary to implement shutdown, pre-start 
clearance, and ramp-up procedures during the use of those other sources 
in order to mitigate impacts to marine mammals from those sources, as 
none are expected. Additionally, shutdown is not required during use of 
non-impulsive, non-parametric sub-bottom profilers given the very small 
Level B harassment zones expected from use of those sources (4.3 m for 
the EdgeTech Chirp 216 planned for use by Vineyard Wind 1). However, we 
note that Vineyard Wind 1 is still required to implement the vessel 
strike avoidance measures during use of these sources.
    Comment 12: Oceana recommended that when HRG surveys are safe to 
resume after a shutdown event, the surveys should be required to use a 
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 (86 FR 30266, June 7, 2021) 
and this final 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 13: 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 harassment 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 recommended a 1,000 m exclusion zone 
for North Atlantic right whales also. The ENGOs further noted 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 grossly 
underestimates take by Level B harassment. 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 RLs below 160 dB rms. Alternatively, NMFS 
acknowledges the potential that not all animals exposed to RLs 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 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.,

[[Page 40478]]

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 RLs. 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., Malme et al., 1983, 1984, 1985, 1988; McCauley et 
al., 1998, 2000a, 2000b; Barkaszi et al., 2012; Stone, 2015a; 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 sound 
sources and the equipment used in the specified activities are outside 
(higher than) 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.
    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 (178 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, 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., <53 m for all impulsive 
sources).

[[Page 40479]]

    Comment 14: 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 (86 FR 30266, June 7, 
2021), and which are included in this final 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 1 
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 1 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 previous 2020-2021 IHA (report available on our website at https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-llc-marine-site-characterization-surveys), except for excepted 
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 1's final monitoring report and made publicly 
available on NMFS' website. Vineyard Wind 1 is required to immediately 
notify NMFS of any sightings of North Atlantic right whales and report 
upon survey activity information.
    Comment 15: The ENGOs recommended that passive acoustic monitoring 
(PAM) operators 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.
    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 ``Technical Memorandum 
NMFS[hyphen]OPR[hyphen]64: North Atlantic Right Whale Monitoring and 
Surveillance: Report and Recommendations of the National Marine 
Fisheries Service's Expert Working Group'', 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 IHA, NMFS cannot require Vineyard Wind 1 
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 stated that it is their general view that 
NMFS must require a minimum of four PSOs following a two-on, two-off 
rotation, each responsible for scanning no more than 180[deg] of the 
horizon. However, the ENGOs further stated that they strongly support 
Vineyard Wind 1's proposal to use PAM during nighttime HRG surveys, and 
recognize that in this case, a requirement to employ two PSOs during 
all nighttime survey operations is impracticable, given the limited 
availability of berths on the survey vessels and additional personnel 
required to conduct PAM. The ENGOs state that making this PSO 
requirement clear to IHA applicants will allow any logistical 
considerations to be addressed early in the survey planning process. In 
a related comment, Oceana recommended that all vessels associated with 
the proposed Vineyard Wind 1 site characterization should be required 
to carry and use PSOs at all times when underway. The ENGOs and Oceana 
recommend that NMFS require the use of infrared equipment during 
periods of darkness and during daylight hours to help maximize 
probability of detection of marine mammals.
    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 178-m harassment zone) will 
be successful in detecting marine mammals that are available for 
detection at the surface. Further, as noted by the commenters, and in 
the notice of the proposed IHA (86 FR 30266; June 7, 2021), a 
requirement to employ at least two PSOs during all nighttime survey 
operations is impracticable, given the limited available berths on the 
survey vessels and the additional personnel Vineyard Wind has 
conducting PAM. (As noted below, Vineyard Wind 1 plans to conduct PAM, 
though it is not required by this IHA given NMFS concerns with 
efficacy, as described in NMFS' response to the following comment). 
NMFS makes a concerted effort to communicate mitigation and monitoring 
requirements to applicants as early in the application process as

[[Page 40480]]

possible. NMFS has analyzed the potential for incidental take resulting 
from Vineyard Wind 1's activity and has determined that based on the 
nature of the activities, and in consideration of the mitigation 
measures included in the IHA, the potential for incidental take when 
HRG survey equipment is 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. NMFS has included a requirement in the proposed IHA and this 
final IHA that night-vision equipment (i.e., night-vision goggles and/
or infrared technology) must be available for use during nighttime 
monitoring. Under the issued IHA, 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 in the future as more information becomes 
available regarding this technology. NMFS is also requiring that all 
PSOs be equipped with binoculars and have the ability to estimate 
distances to marine mammals located in proximity to the vessel and/or 
EZs. 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 noted that the proposed IHA does not require 
monitoring of a ``buffer zone'' or ``monitoring zone'' that were 
required by NMFS in the recent proposed Renewal IHA for Vineyard Wind 
(86 FR 30435; June 8, 2021). The commenters state that NMFS should 
explain why the requirements are inconsistent and less stringent 
monitoring is required in the Vineyard Wind 1 proposed IHA.
    Response: This IHA does not explicitly state a specific ``buffer 
zone'' or ``monitoring zone'' that PSOs must monitor, as included in 
some previous IHAs such as the proposed Renewal IHA mentioned by the 
commenter (86 FR 30435; June 8, 2021). As stated previously in this 
notice, NMFS considers impacts from these types of survey operations to 
be near de minimis, and therefore, use of a buffer zone is unnecessary. 
Further, NMFS did not include this requirement in the IHA so as not to 
suggest that PSOs should limit their observations to just a specific 
``buffer'' or ``monitoring'' zone. Rather, NMFS expects PSOs to report 
all marine mammal observations to the farthest extent that they are 
able to observe. Therefore, not including a specific ``buffer'' or 
``monitoring'' zone does not result in less stringent monitoring 
requirements.
    Comment 18: Oceana stated that the IHA must include a requirement 
for all phases of the Vineyard Wind 1 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 NMFS or the Coast Guard as soon 
as possible and no later than the end of the PSO shift. Oceana states 
that 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 proposed IHA, the final IHA includes requirements for reporting 
that supports Oceana's recommendations. Vineyard Wind 1 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 monitoring, 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 draft 
IHA and final IHA stipulate that if a North Atlantic right whale is 
observed at any time by any project vessels, during surveys or during 
vessel transit, Vineyard Wind 1 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 1 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 19: The ENGOs raised concerns regarding the ability of PSOs 
to effectively detect marine mammals, and state that PSOs alone are 
certain to underestimate the total number of large whales in the 
mitigation area based on sea state, and state that visual monitoring 
alone is insufficient. They state that the concern NMFS raises 
regarding PAM that relates to the masking that would occur from vessel 
noise and flow noise are entirely surmountable. They state that the 
passive acoustic protocol can and should be designed so the hydrophone 
is not masked by vessel or survey noise and NMFS should make this 
explicit in the Final IHA for Vineyard Wind 1. They further state that 
NMFS should require PAM at all times to maximize the probability of 
detection for North Atlantic right whales and, ideally, other 
endangered and protected species and stocks, including during periods 
of fog, precipitation, and high sea states, when PSOs and infrared 
technologies are less effective. It should be noted that PAM without 
visual observers would also be insufficient as individuals may not 
continually vocalize. Further, 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.
    Response: The foremost concern expressed by the ENGOs 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

[[Page 40481]]

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 whales at the required 
range, but not baleen whales, due to expected background noise levels 
(including seismic noise, vessel noise, and flow noise). At present, 
NMFS is unaware of PAM design options that would avoid the masking 
issues described here and in the notice of the proposed IHA (86 FR 
30266; June 7, 2021), and despite the commenters' claim that these 
issues are ``entirely surmountable,'' no recommendations are provided 
in this regard.
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
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 178 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 minimal efficacy--NMFS is unaware of any occasions on 
which a vocalizing mysticete (other than the occasional humpback whale, 
a species that often vocalizes at relatively high frequencies) has been 
detected through use of towed PAM), 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 1 has stated their 
intention to voluntarily implement PAM during night operations as an 
added precautionary measure even though this is not a NMFS requirement 
due to its expected lack of efficacy.
    Comment 20: The ENGOs and Oceana both expressed concerns that the 
proposed 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 1 to select sub-bottom profiling 
systems, 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 1 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 IHA meets this requirement to 
effect the least practicable adverse impact. Oceana does not make any 
specific recommendations of measures to add to the IHA other than 
assessing which technologies and strategies are truly necessary to 
provide information to inform development of Vineyard Wind 1. While the 
ENGOs recommend the use of sub-bottom profiling systems, the Vineyard 
Wind 1 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 prescribed 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 21: The ENGOs and Oceana both generally recommended that 
NMFS restrict all vessels of all sizes associated with the proposed 
survey activities to speeds less than 10 kn at all times due to the 
risk of vessel strikes to North Atlantic right whales and other large 
whales. The ENGOs note that an exception may be made in limited 
circumstances where the best available scientific information 
demonstrates that whales do not use the area at any time. 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 1.
    Response: While NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for ship strike 
resulting from Vineyard Wind 1's activity and have determined that 
based on the nature of

[[Page 40482]]

the activity and the required mitigation measures specific to vessel 
strike avoidance included in the IHA, potential for vessel strike is so 
low as to be discountable. These mitigation measures, most of which 
were included in the proposed IHA and all of which are required in the 
final IHA, include: A requirement that all vessel operators comply with 
10 kn (18.5 km/hour) or less speed restrictions in any SMA, DMA or Slow 
Zone (Slow Zones added since publication of the proposed IHA) while 
underway, and check daily for information regarding the establishment 
of mandatory or voluntary vessel strike avoidance areas (SMAs, DMAs, 
Slow Zones) and information regarding North Atlantic right whale 
sighting locations; a requirement that all vessels greater than or 
equal to 19.8 m in overall length operating from November 1 through 
April 30 operate at speeds of 10 kn (18.5 km/hour) or less, except 
while transiting in Nantucket Sound; 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-
delphinid 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 ESA-listed whales or other unidentified large 
marine mammals visible at the surface while underway; a requirement 
that, if underway, vessels must steer a course away from any sighted 
ESA-listed whale at 10 kn or less until the 500-m minimum separation 
distance has been established; a requirement that, if an ESA-listed 
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 all non-ESA-listed baleen 
whales; 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). We have determined that the ship strike avoidance measures 
in the IHA are sufficient to ensure the least practicable adverse 
impact on species or stocks and their habitat. Furthermore, no 
documented vessel strikes have occurred for any marine site 
characterization surveys which were issued IHAs from NMFS during the 
survey activities themselves or while transiting to and from project 
sites.
    Comment 22: Oceana recommended that the IHA should require all 
vessels supporting site characterization 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 carried the potential for 
much more significant impacts than the marine site characterization 
surveys to be carried out by Vineyard Wind 1, with 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 practicability issues 
associated with this requirement.
    Comment 23: Oceana asserts that the IHA must include requirements 
to hold all vessels associated with site characterization surveys 
accountable to the IHA requirements, including vessels owned by the 
developer, contractors, employees, and others regardless of ownership, 
operator, contract. They state that exceptions and exemptions will 
create enforcement uncertainty and incentives to evade regulations 
through reclassification and redesignation. They recommend that NMFS 
simplify this by requiring all vessels to abide by the same 
requirements, regardless of size, ownership, function, contract or 
other specifics.
    Response: NMFS agrees with Oceana and required these measures in 
the proposed IHA and final IHA. The IHA requires that a copy of the IHA 
must be in the possession of Vineyard Wind 1, the vessel operators, the 
lead PSO, and any other relevant designees of Vineyard Wind 1 operating 
under the authority of this IHA. The IHA also states that Vineyard Wind 
1 must ensure that the vessel operator and other relevant vessel 
personnel, including the PSO team, 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 24: 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 IHA Renewals (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.
    The notice of the proposed IHA published in the Federal Register on 
June 7, 2021 (86 FR 30266) made clear that the agency was seeking 
comment on the proposed IHA and the potential issuance of a renewal for 
this project. Because any renewal is limited to another year of 
identical or nearly identical activities in the same location or the 
same activities that were not completed within the 1-year period of the 
initial IHA, reviewers have the information needed to effectively 
comment on both the immediate proposed IHA and a possible 1-year 
renewal, should the IHA holder choose to request one in the coming 
months.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would 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 would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for

[[Page 40483]]

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 would also contain a 
preliminary monitoring report, in order 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 provides 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 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 is 45 days.

Changes From the Proposed IHA to Final IHA

    The final IHA includes a measure requiring Vineyard Wind 1 to abide 
by the relevant Project Design Criteria (PDC) of the programmatic 
consultation, completed by NMFS GARFO on June 29, 2021, pursuant to 
section 7 of the Endangered Species Act. The full list of PDC and BMPs 
are included in Appendix B of the 2021 Programmatic Consultation, which 
can be accessed on NMFS' website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-1-marine-site-characterization-surveys). Further, NMFS has modified several measures 
in the final IHA to align more closely with the PDCs. We provide a 
summary here, and the changes are also described in the specific 
applicable sections below (e.g., Mitigation Measures). The 
modifications include an update to the pre-start clearance observation 
requirement, which now reflects a 500 m radius for all ESA-listed 
marine mammals, rather than a 500 m radius for North Atlantic right 
whales only, as was included in the proposed IHA. Additionally, this 
pre-start clearance observation is now required for 30 minutes, rather 
than 60 minutes as initially proposed by Vineyard Wind 1 and included 
in the proposed IHA (86 FR 30266; June 7, 2021). Further, a 30 minute 
delay in initiation of acoustic sources is now required after a 
sighting of all marine mammals other than odontocetes and seals within 
the pre-start clearance zones, rather than a separate 60-minute delay 
for a sighting of North Atlantic right whales, as was initially 
proposed by Vineyard Wind 1 and included in the proposed IHA. A 30-
minute pre-start clearance zone and 30-minute delay for sightings of 
North Atlantic right whales is consistent with numerous other HRG 
survey-related IHAs (e.g., 86 FR 33664, June 25, 2021; 86 FR 38033, 
July 19, 2021; 86 FR 38296, July 20, 2021), as well as the 2021 
programmatic consultation. The final IHA also includes an the 
additional requirement for Vineyard Wind 1 to follow speed restrictions 
in ``Slow Zones'' in addition to SMAs and DMAs included in the proposed 
IHA. Further, the final IHA requires Vineyard Wind 1 to check daily for 
information regarding the establishment of mandatory or voluntary 
vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and information 
regarding North Atlantic right whale sighting locations, while the 
proposed IHA required Vineyard Wind 1 to monitor NMFS North Atlantic 
right whale reporting systems from November 1st through April 30th in 
order to ensure vessel operators are aware of any newly established 
DMAs. Lastly, the final IHA requires vessels to maintain a minimum 
separation distance of 500 m from ESA-listed whales or other 
unidentifiable large marine mammals visible at the surface, rather than 
keeping a 500 m distance from North Atlantic right whales only. Vessels 
must maintain a separation distance of 100 m from all non-ESA listed 
baleen whales. Additionally, NMFS modified a mitigation measure to 
state that ``Vineyard Wind 1 must not operate more than three 
concurrent HRG survey vessels concurrently, with HRG survey equipment 
operating at or below 180 kHz, from January through April within the 
lease area or export cable corridor, not including coastal and bay 
waters,'' rather than applying this measure to equipment operating at 
or below 200 kHz, to align with the June 29, 2021 programmatic 
consultation also. Consistency among documents is expected to avoid 
confusion among vessel operators and other relevant personnel 
(including the PSO team) that may otherwise result.
    Last, the final IHA authorizes 10 takes by Level B harassment of 
North Atlantic right whale, rather than 9 takes included in the 
proposed IHA, to reflect an updated density estimate. Please see the 
Estimated Take section for additional information.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
authorized for this action, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow the Committee on Taxonomy (2020). PBR is defined by the MMPA as 
the maximum number of animals, not including natural mortalities, that 
may be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS's SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs. All values presented in 
Table 2 are the most recent available at the time of publication and, 
except for North Atlantic right whale, are available in the 2019 SARs 
(Hayes et al., 2020) and draft 2020 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports). The most recent North Atlantic right 
whale stock abundance estimate is presented in NOAA Technical 
Memorandum NMFS-NE-269 (Pace 2021).

[[Page 40484]]



                 Table 2--Marine Mammals Likely To Occur in the Project Area That May Be Affected by Vineyard Wind 1's Planned Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Family Balaenidae:
    North Atlantic right whale \4\..  Eubalaena glacialis....  Western North Atlantic.  E/D; Y              368 (NA; 356; 2018)...        0.8       18.6
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,393 (0.15; 1,375;            22         58
                                                                                                             2016).
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E/D; Y              6,802 (0.24; 5,573;            11       2.35
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.02; 3,098;           6.2        1.2
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian Eastern         -/-; N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.           Coastal.                                     2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E; Y                4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -/-; N              39,215 (0.3; 30,627;          306         21
                                                                                                             2016).
    Bottlenose dolphin..............  Tursiops spp...........  Western North Atlantic   -/-; N              62,851 (0.213; 51,914;        519         28
                                                                Offshore.                                    2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -/-; N              172,974 (0.21;              1,452        399
                                                                                                             145,216; 2016).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -/-; N              92,233 (0.71; 54,433;         544         26
                                                                                                             2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -/-; N              35,493 (0.19; 30,289;         303       54.3
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        217
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \5\...................  Halichoerus grypus.....  Western North Atlantic.  -/-; N              27,131 (0.19; 23,158,       1,389      4,729
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -/-; N              75,834 (0.15; 66,884,       2,006        350
                                                                                                             2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable (NA).
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, vessel strike).
\4\ This is the latest stock abundance estimate and Nmin as presented in Pace (2021).
\5\ NMFS stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual M/SI value is given for the total stock.

    As indicated above, all 14 species (with 14 managed stocks) in 
Table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. In addition to what is 
included in Sections 3 and 4 of the application, the SARs, and NMFS's 
website, further detail informing the baseline for select species 
(i.e., information regarding current Unusual Mortality Events (UME) and 
important habitat areas) was provided in the notice of proposed IHA (86 
FR 30266; June 7, 2021) and is not repeated here. No new information is 
available since publication of that notice.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

[[Page 40485]]



           Table 3--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises,  Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Fourteen marine mammal species (12 cetacean and 2 phocids pinnipeds) 
have the reasonable potential to co-occur with the planned survey 
activities. Please refer to Table 2. Of the cetacean species that may 
be present, five are classified as low-frequency cetaceans (i.e., all 
mysticete species), six are classified as mid-frequency cetaceans 
(i.e., all delphinid species and the sperm whale), and one is 
classified as high-frequency cetaceans (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The notice of proposed IHA included a summary of the ways that 
Vineyard Wind 1's specified activity may impact marine mammals and 
their habitat (86 FR 30266; June 7, 2021). Detailed descriptions of the 
potential effects of similar specified activities have been provided in 
other recent Federal Register notices, including for survey activities 
using the same methodology, over a similar amount of time, and 
occurring within the same specified geographical region (e.g., 82 FR 
20563, May 3, 2017; 85 FR 36537, June 17, 2020; 85 FR 37848, June 24, 
2020; 85 FR 48179, August 10, 2020). No significant new information is 
available, and we refer the reader to the notice of proposed IHA (86 FR 
30266; June 7, 2021) and to these documents rather than repeating the 
details here. The Estimated Take section includes a quantitative 
analysis of the number of individuals that are expected to be taken by 
Vineyard Wind 1's activity. The Negligible Impact Analysis and 
Determination section considers the potential effects of the specified 
activity, the Estimated Take section, and the Mitigation Measures 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and how those impacts on individuals are likely to impact marine mammal 
species or stocks. The notice of proposed IHA (86 FR 30266; June 7, 
2021) also provided background information regarding active acoustic 
sound sources and acoustic terminology, which is not repeated here.
    The potential effects of Vineyard Wind 1's specified survey 
activity are expected to be limited to Level B behavioral harassment. 
No permanent or temporary auditory effects, or significant impacts to 
marine mammal habitat, including prey, are expected.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS's 
consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to HRG sources. Based primarily on the 
characteristics of the signals produced by the acoustic sources planned 
for use, Level A harassment is neither anticipated (even absent 
mitigation) nor authorized. Consideration of the anticipated 
effectiveness of the mitigation measures (i.e., exclusion zones (EZs) 
and shutdown measures) discussed in detail below in the Mitigation 
Measures section, further strengthens the conclusion that Level A 
harassment is not a reasonably anticipated outcome of the survey 
activity. As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other

[[Page 40486]]

factors related to the source (e.g., frequency, predictability, duty 
cycle), the environment (e.g., bathymetry), and the receiving animals 
(hearing, motivation, experience, demography, behavioral context) and 
can be difficult to predict (Southall et al., 2007, Ellison et al., 
2012). Based on what the available science indicates and the practical 
need to use a threshold based on a factor that is both predictable and 
measurable for most activities, NMFS uses a generalized acoustic 
threshold based on received level to estimate the onset of behavioral 
harassment. NMFS predicts that marine mammals are likely to be 
behaviorally harassed in a manner we consider Level B harassment when 
exposed to underwater anthropogenic noise above received levels of 160 
dB re 1 [mu]Pa (rms) for the impulsive sources (i.e., boomers, 
sparkers) and non-impulsive, intermittent sources (e.g., chirp SBPs) 
evaluated here for Vineyard Wind 1's planned activity.
    Level A Harassment--NMFS's Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). For more 
information, see NMFS's 2018 Technical Guidance, which may be accessed 
at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Vineyard Wind 1's planned activity includes the use of impulsive 
(i.e., sparkers and boomers) and non-impulsive (e.g., CHIRP SBP) 
sources. However, as discussed above, NMFS has concluded that Level A 
harassment is not a reasonably likely outcome for marine mammals 
exposed to noise through use of the sources planned for use here, and 
the potential for Level A harassment is not evaluated further in this 
document. Please see Vineyard Wind 1's application for details of a 
quantitative exposure analysis exercise, i.e., calculated Level A 
harassment isopleths and estimated Level A harassment exposures. 
Maximum estimated Level A harassment isopleths were less than 5 m for 
all sources and hearing groups with the exception of an estimated 53 m 
zone calculated for high-frequency cetaceans during use of the Applied 
Acoustics AA251 Boomer, (see Table 1 for source characteristics). 
Vineyard Wind 1 did not request authorization of take by Level A 
harassment, and no take by Level A harassment is authorized by NMFS.

Ensonified Area

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and the lowest frequency of the source was used when 
calculating the frequency-dependent absorption coefficient (Table 1).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment 
types that may be used during the planned surveys and the source levels 
associated with those HRG equipment types.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Vineyard Wind 1 
that has the potential to result in Level B harassment of marine 
mammals, the Applied Acoustics AA251 Boomer will produce the largest 
Level B harassment isopleth (178 m; see Table 7 of Vineyard Wind 1's 
application). The estimated Level B harassment isopleth associated with 
the GeoMarine Geo Spark 2000 (400 tip) system planned for use is 141 m. 
Although Vineyard Wind 1 does not expect to use the AA251 Boomer source 
on all planned survey days, it proposes to assume, for purposes of 
analysis, that the boomer will be used on all survey days. This is a 
conservative approach, as the actual sources used on individual survey 
days may produce smaller harassment distances.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Density estimates for all species within the project area were 
derived from habitat-based density modeling results reported by Roberts 
et al. (2016, 2017, 2018, 2020). The data presented by Roberts et al. 
(2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates 
data from 8 physiographic and 16 dynamic oceanographic and biological 
covariates, and controls for the influence of sea state, group size, 
availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at https://seamap.env.duke.edu/models/Duke/ EC/.
    Marine mammal density estimates in the survey area (animals/km\2\) 
were obtained using the most recent model results for all taxa (Roberts 
et al., 2016, 2017, 2018, 2020). We note the availability of a more 
recent model version for the North Atlantic right whale. However, this 
latest update resulted in changed predictions only for Cape Cod Bay 
and, therefore, would not result in changes to the take estimate 
presented herein. More information is available online at: https://seamap.env.duke.edu/models/Duke/EC/EC_North_Atlantic_right_whale_history.html. The updated models 
incorporate additional sighting data, including sightings from NOAA's 
Atlantic Marine Assessment Program for Protected Species (AMAPPS) 
surveys. Roberts et al. (2016, 2017, 2018, 2020) provide abundance 
estimates for species or species guilds within 10 km x 10 km grid cells 
(100 km\2\; except North Atlantic right whale--see discussion below) on 
a monthly or annual basis, depending on the species.
    For the exposure analysis, density data from Roberts et al. (2016, 
2017, 2018, 2020) were mapped using a geographic information system 
(GIS). Vineyard Wind 1 calculated densities within a 50 km buffer 
polygon around the wind development area perimeter. The 50 km limit was 
derived from studies demonstrating that received levels, distance from 
the source, and behavioral context are known to influence marine 
mammals' probability of behavioral response (Dunlop et al. 2017). The 
monthly density was determined by calculating the mean of

[[Page 40487]]

all grid cells partially or fully within the buffer polygon. The 
average monthly abundance for each species in each survey area was 
calculated as the mean value of the grid cells within the buffer area 
in each month and then converted to density (individuals/km\2\) by 
dividing by 100 km\2\ (Table 1). Annual mean densities were calculated 
from monthly densities (Table 4).
    The estimated monthly densities of North Atlantic right whales were 
based on Version 10 model results from Roberts et al. (2020) (updated 
from the Version 9 model results included in the proposed IHA). As 
stated in the Comments and Responses section of this notice, the 
Version 10 update to the model was primarily focused on Massachusetts 
Bay, which does not overlap the project area and therefore, is not 
relevant to this IHA. However, Version 10 also included additional 
survey data in the ``Hatteras Island to Nantucket Shoals'' area (a 
portion of which does overlap the project area), which resulted in 
slightly higher densities in part of the project area south of 
Nantucket. Therefore, the Version 10 density for the project area is 
0.0018/km\2\, rather than 0.0016/km\2\ in Version 9. NMFS updated the 
take estimate for North Atlantic right whale in the final IHA to 
reflect the Version 10 update. Additionally, as noted above, there has 
been an additional minor model update affecting predictions for Cape 
Cod Bay in the month of December, which is not relevant to the location 
of this survey off of Rhode Island and southern Massachusetts.) These 
updated data for North Atlantic right whales are provided as densities 
(individuals/1 km\2\) within 5 km x 5 km grid cells (25 km\2\) on a 
monthly basis. The same GIS process described above was used to select 
the appropriate grid cells from each month and the monthly North 
Atlantic right whale density in each survey area was calculated as the 
mean value of the grid cells as described above. Additional data 
regarding average group sizes from survey effort in the region was 
considered to ensure adequate take estimates are evaluated.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate. In order to estimate 
the number of marine mammals predicted to be exposed to sound levels 
that would result in harassment, radial distances to predicted 
isopleths corresponding to harassment thresholds are calculated, as 
described above. Those distances are then used to calculate the area(s) 
around the HRG survey equipment predicted to be ensonified to sound 
levels that exceed harassment thresholds. The area estimated to be 
ensonified to relevant thresholds in a single day (zone of influence 
(ZOI)) is then calculated, based on areas predicted to be ensonified 
around the HRG survey equipment (i.e., 178 m) and the estimated 
trackline distance traveled per day by the survey vessel (i.e., 80 km). 
Based on the maximum estimated distance to the Level B harassment 
threshold of 178 m (Applied Acoustics AA251 Boomer) and the maximum 
estimated daily track line distance of 80 km, the ZOI is estimated to 
be 28.58 km\2\ during Vineyard Wind 1's planned HRG surveys. As 
described above, this is a conservative estimate as it assumes the HRG 
source that results in the greatest distance to the Level B harassment 
isopleth will be operated at all times during all vessel days.

ZOI = (Distance/day x 2r) + [pi]r\2\

    Where r is the linear distance from the source to the harassment 
isopleth.
    Potential daily Level B harassment takes are estimated by 
multiplying the average annual marine mammal densities (animals/km\2\), 
as described above, by the ZOI. Estimated numbers of each species taken 
over the duration of the authorization are calculated by multiplying 
the potential daily Level B harassment takes by the total number of 
vessel days plus a 10 percent buffer (i.e., by 170 vessel days x 1.1 
percent = 192.5 vessel days). The product is then rounded, to generate 
an estimate of the total number of instances of harassment expected for 
each species over the duration of the survey. A summary of this method 
is illustrated in the following formula:

Estimated Take = D x ZOI x vessel days

    Where D = average species density (animals/km\2\), ZOI = maximum 
daily ensonified area to relevant threshold, and vessel days = 192.5.
    Take by Level B harassment authorized is shown in Table 4.

                Table 4--Total Numbers of Incidental Take of Marine Mammals Authorized and Authorized Takes as a Percentage of Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      Annual mean    Estimated takes    Authorized takes
                        Species of interest                             density         by Level B         by Level B        Abundance      Percent of
                                                                        (km\2\)         harassment       harassment \a\                        stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fin whale.........................................................         0.00149               8.22                  8           6,802            0.13
Humpback whale....................................................         0.00084               4.63                  5           1,393            0.36
Minke whale.......................................................         0.00062               3.42                  3          21,968            0.02
North Atlantic right whale b......................................          0.0018                9.9                 10             368            2.72
Sei whale.........................................................         0.00005               0.28                  2           6,292            0.03
Sperm whale.......................................................         0.00006               0.33                  2           4,349            0.05
Atlantic white sided dolphin......................................         0.02226             122.78                123          92,233            0.13
Bottlenose dolphin................................................          0.0403             222.29                222          62,851            0.35
Long-finned pilot whale...........................................         0.00459              25.32                 25          39,215            0.07
Risso's dolphin...................................................         0.00012               0.66                  8          35,493            0.02
Common dolphin....................................................          0.0544             300.06              3,484         172,974            2.01
Harbor porpoise...................................................         0.02858             157.64                158          95,543            0.17
Gray seal c.......................................................         0.09784             539.67                540          27,131            1.99
Harbor seal c.....................................................                             539.67                540          75,834            0.71
--------------------------------------------------------------------------------------------------------------------------------------------------------
a Increases from calculated values for sei whale, sperm whale, and Risso's dolphin are based on observed group sizes during Vineyard Wind LLC's 2018-
  2020 surveys (Vineyard Wind 2018, 2020a, 2020b).
b Updated to reflect the Roberts et al. (2020) Version 10 density estimate.
c Roberts et al. (2018) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
  equally; therefore, density values were split evenly between the two species, i.e., total estimated take for ``seals'' is 1,080.


[[Page 40488]]

    The take numbers shown in Table 4 are those requested by Vineyard 
Wind 1, with the exception of certain minor rounding differences. 
Further, Vineyard Wind 1 requested take of the pilot whale guild, 
rather than just long-finned pilot whale, but as described previously, 
pilot whales in the project area are expected to be long-finned pilot 
whales. Additionally, NMFS increased authorized Level B harassment take 
of common dolphin to 3,484 takes. This take estimate reflects the daily 
rate of approximately 18.1 common dolphin observations within the Level 
B harassment zone per vessel day (3,332 dolphin observations over 184 
days) during surveys under Vineyard Wind's previous IHA (85 FR 42357; 
July 14, 2020), and an estimated 192.5 vessel days, as described above 
(18.1 takes per day x 192.5 vessel days = 3,484 takes). Given the 
overlap in project areas, NMFS expects that this estimate is more 
appropriate than the density-based common dolphin take estimate 
calculated by Vineyard Wind 1. For all other species, NMFS concurs with 
the take numbers requested by Vineyard Wind 1 and proposes to authorize 
them.

Mitigation Measures

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS requires the following mitigation measures be implemented 
during Vineyard Wind 1's planned marine site characterization surveys.

Marine Mammal Exclusion Zones and Harassment Zones

    Marine mammal EZs will be established around the HRG survey 
equipment and monitored by protected species observers (PSO):
     500 m (1,640 ft) EZ for North Atlantic right whales during 
use of impulsive acoustic sources (e.g., boomers and/or sparkers) and 
certain non-impulsive acoustic sources (nonparametric sub-bottom 
profilers); and
     100 m (328 ft) EZ for all other marine mammals, with 
certain exceptions specified below, during use of impulsive acoustic 
sources (e.g., boomers and/or sparkers).
    If a marine mammal is detected approaching or entering the EZs 
during the HRG survey, the vessel operator will adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
These stated requirements will be included in the training to be 
provided to the survey team.

Pre-Clearance of the Exclusion Zones

    Vineyard Wind 1 will implement a 30-minute pre-clearance period of 
the pre-clearance zones prior to the initiation of ramp-up of HRG 
equipment. This pre-clearance duration was proposed by Vineyard Wind 1. 
During this period, PSO(s) will monitor a 500 m zone for ESA-listed 
marine mammals (North Atlantic right whale, fin whale, sei whale, sperm 
whale) and a 100 m zone for non-ESA-listed marine mammals, using the 
appropriate visual technology. Ramp-up may not be initiated if any 
marine mammal(s) is within its respective zones. If a marine mammal is 
observed within the respective zone during the pre-clearance period, 
ramp-up may not begin until the animal(s) has been observed exiting its 
respective zone or until an additional time period has elapsed with no 
further sighting (i.e., 15 minutes for small odontocetes and seals, 30 
minutes for all other species).

Ramp-Up of Survey Equipment

    When technically feasible, a ramp-up procedure will be used for HRG 
survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. The ramp-up procedure will be used at the 
beginning of HRG survey activities in order to provide additional 
protection to marine mammals near the survey area by allowing them to 
vacate the area prior to the commencement of survey equipment operation 
at full power.
    A ramp-up will begin with the powering up of the smallest acoustic 
HRG equipment at its lowest practical power output appropriate for the 
survey. When technically feasible, the power will then be gradually 
turned up and other acoustic sources will be added.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective EZ. Ramp-up will continue if the animal has been observed 
exiting its respective EZ or until an additional time period has 
elapsed with no further sighting (i.e, 15 minutes for small odontocetes 
and seals, 30 minutes for all other species).
    Activation of survey equipment through ramp-up procedures may not 
occur when visual observation of the pre-clearance/exclusion zone is 
not expected to be effective using the appropriate visual technology 
(i.e., during inclement conditions such as heavy rain or fog).

Shutdown Procedures

    An immediate shutdown of the HRG survey equipment will be required 
if a marine mammal is sighted entering or within its respective EZ. The 
vessel operator must comply immediately with any call for shutdown by 
the PSO. Any disagreement between the PSO and vessel operator should be 
discussed only after shutdown has occurred. Subsequent restart of the 
survey equipment can be initiated if the animal has been observed 
exiting its respective EZ or until an additional time period has 
elapsed (i.e, 15 minutes for delphinid cetaceans and seals, 30 minutes 
for all other species).
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (178 m impulsive), shutdown will occur.

[[Page 40489]]

    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective EZs. If the acoustic source is shut down for a period 
longer than 30 minutes and PSOs have maintained constant observation, 
then pre-clearance and ramp-up procedures will be initiated as 
described in the previous section.
    The shutdown requirement will be waived for small delphinids of the 
following genera: Delphinus, Lagenorhynchus (acutus only), and 
Tursiops. Specifically, if a delphinid from the specified genera is 
visually detected approaching the vessel (i.e., to bow ride) or towed 
equipment, shutdown is not required. Furthermore, if there is 
uncertainty regarding identification of a marine mammal species (i.e., 
whether the observed marine mammal(s) belongs to one of the delphinid 
genera for which shutdown is waived), PSOs must use best professional 
judgement in making the decision to call for a shutdown. Additionally, 
shutdown is required if a delphinid detected in the EZ belongs to a 
genus other than those specified.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., USBL and parametric sub-bottom profilers) other than non-
parametric sub-bottom profilers (e.g., CHIRPs). Pre-clearance and ramp-
up, but not shutdown, are required when using non-impulsive, non-
parametric sub-bottom profilers.

Vessel Strike Avoidance

    Vineyard Wind 1 will ensure that vessel operators and crew maintain 
a vigilant watch for cetaceans and pinnipeds and slow down or stop 
their vessels to avoid striking these species. Survey vessel crew 
members responsible for navigation duties will receive site-specific 
training on marine mammals sighting/reporting and vessel strike 
avoidance measures. Vessel strike avoidance measures include the 
following, except under circumstances when complying with these 
requirements would put the safety of the vessel or crew at risk:
     Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the appropriate separation 
distance around the vessel (distances stated below). Visual observers 
monitoring the vessel strike avoidance zone may be third-party 
observers (i.e., PSOs) or crew members, but crew members responsible 
for these duties must be provided sufficient training to (1) 
distinguish protected species from other phenomena and (2) broadly to 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammal;
     All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specific areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes including 
SMAs, DMAs, and Slow Zones when in effect;
     All vessels greater than or equal to 19.8 m in overall 
length operating from November 1 through April 30 will operate at 
speeds of 10 knots or less, except while transiting in Nantucket Sound;
     All vessels must reduce their speed to 10 knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel;
     All vessels must maintain a minimum separation distance of 
500 m from ESA-listed whales or other unidentifiable large marine 
mammals visible at the surface;
     All vessels must maintain a minimum separation distance of 
100 m from all non-ESA-listed baleen whales;
     All vessels 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);
     When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained;
     These requirements do not apply in any case where 
compliance would create an imminent and serious threat to a person or 
vessel or to the extent that a vessel is restricted in its ability to 
maneuver and, because of the restriction, cannot comply; and
     Members of the monitoring team will consult NMFS North 
Atlantic right whale reporting system and Whale Alert, as able, for the 
presence of North Atlantic right whales throughout survey operations, 
and for the establishment of a DMA or Slow Zone. If NMFS should 
establish a DMA or Slow Zone in the survey area during survey 
operations, the vessels will abide by speed restrictions in the DMA or 
Slow Zone.

Passive Acoustic Monitoring

    Vineyard Wind 1 plans to employ trained PAM operators to monitor 
for acoustic detections of marine mammals during nighttime HRG survey 
activities. PAM operators will communicate nighttime detections to the 
lead PSO on duty who will ensure the implementation of the appropriate 
mitigation measure. If PAM is not used or is deemed non-functional at 
any time during the survey, the survey will be shut down until PAM is 
restored. NMFS does not concur that PAM is an effective technique for 
detecting mysticetes in order to implement mitigation measures during 
HRG surveys, given masking that would occur from vessel noise and flow 
noise. Therefore, NMFS has not included it as a requirement in this 
IHA.

Seasonal Restrictions

    Vineyard Wind 1 will not operate more than three survey vessels 
concurrently, with HRG survey equipment operating below 180 kHz, from 
January through April within the lease area or export cable corridor, 
not including coastal and bay waters. Additionally, the monitoring team 
will consult NMFS's North Atlantic right whale reporting systems for 
any observed right whales throughout survey operations within or 
adjacent to SMAs, DMAs, and/or Slow Zones and will comply with 10 knot 
speed restrictions in any SMA, DMA, or Slow Zone as noted above.

Crew Training

    Prior to initiation of survey work, all crew members will undergo 
environmental training, a component of which will focus on the 
procedures for sighting and protection of marine mammals.
    In addition to the measures discussed in detail in this section, 
Vineyard Wind 1 must abide by the relevant Project Design Criteria 
(PDC) of the programmatic consultation completed by NMFS GARFO on June 
29, 2021, pursuant to section 7 of the Endangered Species Act.

[[Page 40490]]

    Based on our evaluation of the applicant's planned measures, NMFS 
has determined that the mitigation measures provide the means effecting 
the least practicable impact on the affected species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
planned action area. Effective reporting is critical both to compliance 
as well as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Monitoring Measures

    As described above, visual monitoring will be performed by 
qualified and NMFS-approved PSOs, the resumes of whom will be provided 
to NMFS for review and approval prior to the start of survey 
activities. Vineyard Wind 1 will employ independent, dedicated, trained 
PSOs, meaning that the PSOs must (1) be employed by a third-party 
observer provider, (2) have no tasks other than to conduct 
observational effort, collect data, and communicate with and instruct 
relevant vessel crew with regard to the presence of marine mammals and 
mitigation requirements (including brief alerts regarding maritime 
hazards), and (3) have successfully completed an approved PSO training 
course appropriate for their designated task.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including exclusion zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established exclusion zones 
during survey activities. It will be the responsibility of the Lead PSO 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
and conducting visual observations at all times on all active survey 
vessels when HRG equipment operating at or below 200 kHz is operating, 
including both daytime and nighttime operations. Visual monitoring will 
begin no less than 30 minutes prior to initiation of HRG survey 
equipment and will continue until 30 minutes after use of the acoustic 
source ceases. Vineyard Wind 1 states that a requirement to employ at 
least two PSOs during all nighttime survey operations is impracticable, 
given the limited available berths on the survey vessels and additional 
personnel required to conduct PAM.
    Observations will take place from the highest available vantage 
point on the survey vessel. In cases where more than one PSO is on duty 
at a time PSOs will coordinate to ensure 360[deg] visual coverage 
around the vessel from the most appropriate observation posts. PSOs may 
be on watch for a maximum of 4 consecutive hours followed by a break of 
at least 2 hours between watches and may conduct a maximum of 12 hours 
of observation per 24-hour period. In cases where multiple vessels are 
surveying concurrently, any observations of marine mammals will be 
communicated to PSOs on all survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars will also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the monitoring of marine mammals. PSOs must use 
night-vision technology during nighttime surveys when the sources are 
active. Position data will be recorded using hand-held or vessel GPS 
units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs will conduct 
observations when the acoustic source is not operating for comparison 
of sighting rates and behavior with and without use of the acoustic 
source. Any observations of marine mammals by crew members aboard any 
vessel associated with the survey will be relayed to the PSO team. Data 
on all PSO observations will be recorded based on standard PSO 
collection requirements. This will include dates, times, and locations 
of survey operations; dates and times of observations, location and 
weather; details of marine mammal sightings (e.g., species, numbers, 
behavior); and details of any observed marine mammal take that occurs 
(e.g., noted behavioral disturbances).

Reporting Measures

    Within 90 days after completion of survey activities, a final 
technical report will be provided to NMFS that fully documents the 
methods and monitoring protocols, summarizes the data recorded during 
monitoring, summarizes the number of marine mammals estimated to have 
been taken during survey activities (by species, when known), 
summarizes the mitigation actions taken during surveys (including what 
type of mitigation and the species and number of animals that prompted 
the mitigation action, when known), and provides an interpretation of 
the results and effectiveness of all mitigation and monitoring 
measures. Any recommendations made by NMFS must be addressed in the 
final report prior to acceptance by NMFS. PSO datasheets or raw 
sightings data must also be provided with the draft and final

[[Page 40491]]

monitoring report. All draft and final monitoring reports must be 
submitted to [email protected] and [email protected].
    The report must contain at minimum, the following:
     PSO names and affiliations;
     Dates of departures and returns to port with port name;
     Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
     Survey activity information, such as 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.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
     Estimated number of animals (high/low/best);
     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
     Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source; and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on any project vessels, during surveys or during vessel 
transit, Vineyard Wind 1 must immediately report sighting information 
to the NMFS North Atlantic Right Whale Sighting Advisory System: (866) 
755-6622. North Atlantic right whale sightings in any location may also 
be reported to the U.S. Coast Guard via channel 16.
    In the event that personnel involved in the survey activities 
covered by the authorization discover an injured or dead marine mammal, 
Vineyard Wind 1 must report the incident to the NMFS Office of 
Protected Resources (OPR) and the NMFS New England/Mid-Atlantic 
Stranding Coordinator as soon as feasible. The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the event of a vessel strike of a marine mammal by any vessel 
involved in the activities covered by the authorization, Vineyard Wind 
1 must report the incident to the NMFS OPR and the NMFS New England/
Mid-Atlantic Stranding Coordinator as soon as feasible. The report must 
include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     To the extent practicable, photographs or video footage of 
the animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their

[[Page 40492]]

impacts on the environmental baseline (e.g., as reflected in the 
regulatory status of the species, population size and growth rate where 
known, ongoing sources of human-caused mortality, or ambient noise 
levels).
    To avoid repetition, our analysis applies to all the species listed 
in Table 2, given that NMFS expects the anticipated effects of the 
planned survey to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the North 
Atlantic right whale--they are included as separate subsections below. 
NMFS does not anticipate that serious injury or mortality would occur 
as a result from Vineyard Wind 1's planned survey activities, even in 
the absence of mitigation, and no serious injury or mortality is 
authorized. As discussed in the Potential Effects of Specified 
Activities on Marine Mammals and Their Habitat section, non-auditory 
physical effects and vessel strike are not expected to occur. NMFS 
expects that all potential takes will be in the form of short-term 
Level B behavioral harassment in the form of temporary avoidance of the 
area or decreased foraging (if such activity was occurring), reactions 
that are considered to be of low severity and with no lasting 
biological consequences (e.g., Southall et al., 2007). Even repeated 
Level B harassment of some small subset of an overall stock is unlikely 
to result in any significant realized decrease in viability for the 
affected individuals, and thus would not result in any adverse impact 
to the stock as a whole. As described above, Level A harassment is not 
expected to occur given the nature of the operations, the estimated 
size of the Level A harassment zones, and the required shutdown zones 
for certain activities.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 178 m. Although this distance is assumed 
for all survey activity in estimating take numbers authorized and 
evaluated here, in reality much of the survey activity will involve use 
of acoustic sources with smaller acoustic harassment zones, producing 
expected effects of particularly low severity. Therefore, the 
ensonified area surrounding each vessel is relatively small compared to 
the overall distribution of the animals in the area and their use of 
the habitat. Feeding behavior is not likely to be significantly 
impacted as prey species are mobile and are broadly distributed 
throughout the survey area; therefore, marine mammals that may be 
temporarily displaced during survey activities are expected to be able 
to resume foraging once they have moved away from areas with disturbing 
levels of underwater noise. Because of the temporary nature of the 
disturbance and the availability of similar habitat and resources in 
the surrounding area, the impacts to marine mammals and the food 
sources that they utilize are not expected to cause significant or 
long-term consequences for individual marine mammals or their 
populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the planned survey 
area. (Biologically important areas for feeding and migration are 
discussed below.) There is no designated critical habitat for any ESA-
listed marine mammals in the planned survey area.

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. As noted 
previously, elevated North Atlantic right whale mortalities began in 
June 2017 and there is an active UME. Overall, preliminary findings 
support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of right whales.
    As noted previously, the planned project area overlaps a migratory 
corridor BIA for North Atlantic right whales (March-April and November-
December). In addition to the migratory BIA, Oleson et al. (2020) 
identified an area south of Martha's Vineyard and Nantucket, referred 
to as ``South of the Islands,'' as a newer, year-round, core North 
Atlantic right whale foraging habitat. The South of the Islands area 
overlaps with most of Vineyard Wind 1's project area.
    As stated previously, the largest Level B harassment isopleth for 
Vineyard Wind 1's survey is 178 m. Therefore, even if Vineyard Wind 1 
operates multiple survey vessels concurrently in this area, the total 
area ensonified above the Level B harassment threshold will be minimal 
in comparison with the remaining South of the Islands feeding habitat, 
and habitat within the migratory corridor BIA available to North 
Atlantic right whales. Additionally, NMFS is also requiring Vineyard 
Wind 1 to limit the number of survey vessels operating concurrently in 
the lease area or export cable corridor (not including coastal and bay 
waters) to no more than three from January through April, when North 
Atlantic right whale densities are the highest. Given the factors 
discussed above, and the temporary nature of the surveys, right whale 
migration is not expected to be impacted by the planned survey, and 
feeding is not expected to be affected to a degree that will affect 
North Atlantic right whale foraging success in the South of the Islands 
important feeding area.
    No vessel strike is expected to occur during Vineyard Wind 1's 
planned activities, and required vessel strike avoidance measures will 
decrease risk of vessel strike, including during migration and feeding. 
HRG survey operations are required to maintain a 500 m EZ and shutdown 
if a North Atlantic right whale is sighted at or within the EZ. 
Regarding take by Level B harassment, the 500 m shutdown zone for right 
whales is conservative, considering the Level B harassment isopleth for 
the most impactful acoustic source (i.e., boomer) is estimated to be 
178 m. Therefore, this EZ minimizes the potential for behavioral 
harassment of this species. Additionally, as noted previously, Level A 
harassment take is not expected for any species, including North 
Atlantic right whales, given the small PTS zones associated with HRG 
equipment types planned for use.
    The authorized Level B harassment takes of North Atlantic right 
whale are not expected to exacerbate or compound upon the ongoing UME. 
The limited North Atlantic right whale Level B harassment takes 
authorized are expected to be of a short duration, and given the number 
of estimated takes, repeated exposures of the same individual are not 
expected. Therefore, the takes are not expected to impact individual 
fitness or annual rates of recruitment or survival. Further, given the 
relatively small size of the ensonified area during surveys, it is 
unlikely that North Atlantic right whale prey availability will be 
adversely affected by HRG survey operations.

Biologically Important Area for Fin Whales

    The planned project area overlaps with a feeding BIA for fin whales 
(March-October). The fin whale feeding BIA is large (2,933 km\2\), and 
the acoustic footprint of the planned survey is sufficiently small such 
that feeding opportunities for these whales will not be reduced 
appreciably. Any fin whales temporarily displaced from the planned 
survey area will be expected to have sufficient remaining feeding 
habitat available to them, and will not be prevented from feeding in 
other areas within the biologically important feeding habitat. In 
addition, any displacement of fin whales from the BIA or interruption 
of foraging bouts would be expected to be temporary in nature. 
Therefore, we do not expect fin whales feeding within the feeding BIAs 
to be

[[Page 40493]]

impacted by the planned survey to an extent that would affect fitness 
or reproduction.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Vineyard Wind 1's planned survey area. Elevated humpback 
whale mortalities have occurred along the Atlantic coast from Maine 
through Florida since January 2016. Of the cases examined, 
approximately half had evidence of human interaction (vessel strike or 
entanglement). Despite the UME, the relevant population of humpback 
whales (the West Indies breeding population, or distinct population 
segment (DPS)) remains stable at approximately 12,000 individuals, and 
the authorized Level B harassment takes of humpback whale are not 
expected to exacerbate or compound the ongoing UME.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. The likely 
population abundance is greater than 20,000 whales, and the authorized 
Level B harassment takes of minke whale are not expected to exacerbate 
or compound upon the ongoing UME.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and have occurred across Maine, New 
Hampshire, and Massachusetts. Based on tests conducted so far, the main 
pathogen found in the seals is phocine distemper virus, although 
additional testing to identify other factors that may be involved in 
this UME are underway. The authorized Level B harassment takes of 
harbor seal and gray seal are not expected to exacerbate or compound 
upon the ongoing UME. For harbor seals, the population abundance is 
over 75,000 and annual M/SI (350) is well below PBR (2,006) (Hayes et 
al., 2020). The population abundance for gray seals in the United 
States is over 27,000, with an estimated abundance, including seals in 
Canada, of approximately 450,000. In addition, the abundance of gray 
seals is likely increasing in the U.S. Atlantic as well as in Canada 
(Hayes et al., 2020).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in Table 2, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular they will provide animals the opportunity to move 
away from the sound source throughout the survey area before HRG survey 
equipment reaches full energy, thus preventing them from being exposed 
to sound levels that have the potential to cause injury (Level A 
harassment) or more severe Level B harassment. No Level A harassment is 
anticipated, even in the absence of mitigation measures, or authorized.
    NMFS expects that takes will be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals will only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures will 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area;
     While the survey area overlaps areas noted as a migratory 
BIA for North Atlantic right whales, the activities will occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities will not affect migration. In addition, mitigation 
measures to shutdown at 500 m to minimize potential for Level B 
behavioral harassment will limit any take of the species;
     Similarly, due to the relatively small footprint of the 
survey activities in relation to the size of the fin whale feeding BIA 
and South of the Islands North Atlantic right whale feeding area, the 
survey activities will not affect foraging success of these species; 
and
     The required mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from Vineyard 
Wind 1's planned HRG survey activities will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    Take of all species or stocks is below one third of the estimated 
stock abundance (in fact, take of individuals is less than 3 percent of 
the abundance for all affected stocks) as shown in Table 4. Based on 
the analysis contained herein of the planned activity (including the 
mitigation and monitoring measures) and the anticipated take of marine 
mammals, NMFS finds that small numbers of marine mammals will be taken 
relative to the population size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks will not 
have an unmitigable adverse impact on the availability of such species 
or stocks for taking for subsistence purposes.

[[Page 40494]]

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must evaluate our proposed action (i.e., the issuance of the 
incidental take authorization) and alternatives with respect to 
potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, 
which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which we have not identified any extraordinary circumstances that would 
preclude this categorical exclusion. Accordingly, NMFS has determined 
that this action qualifies to be categorically excluded from further 
NEPA review.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with NMFS GARFO.
    The NMFS OPR is authorizing the incidental take of fin whale, North 
Atlantic right whale, sei whale, and sperm whale, which are listed 
under the ESA. We requested initiation of consultation under section 7 
of the ESA with NMFS GARFO for issuance of this IHA. On July 13, 2021, 
NMFS GARFO determined that OPR's issuance of an IHA to Vineyard Wind 1 
would be covered under the June 29, 2021 programmatic consultation, and 
that issuance of the IHA is not likely to adversely affect fin whale, 
North Atlantic right whale, sei whale, and sperm whale or the critical 
habitat of any ESA-listed species or result in the take of any marine 
mammals in violation of the ESA.

Authorization

    NMFS has issued an IHA to Vineyard Wind 1 for the potential 
harassment of small numbers of 14 marine mammal species incidental to 
conducting marine site characterization surveys offshore of 
Massachusetts and Rhode Island in the area of Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Area OCS-A 0501 and along the Offshore Export 
Cable Corridor provided the previously mentioned mitigation, monitoring 
and reporting requirements are followed.

    Dated: July 22, 2021.
Angela Somma,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-16025 Filed 7-27-21; 8:45 am]
BILLING CODE 3510-22-P