Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore From New York to Massachusetts, 756-762 [2022-00016]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 4 (Thursday, January 6, 2022)]
[Notices]
[Pages 756-762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00016]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB618]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Offshore From New York to Massachusetts

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

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

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SUMMARY: NMFS received a request from [Oslash]rsted Wind Power North 
America, LLC, ([Oslash]rsted) for the Renewal of their 2020 IHA to take 
marine mammals incidental marine site characterization surveys, using 
high-resolution geophysical (HRG) equipment, in coastal waters from New 
York to Massachusetts. [Oslash]rsted is also planning to conduct marine 
site characterization surveys along one or more potential submarine 
export cable routes (ECRs). The activities for which [Oslash]rsted has 
requested a Renewal IHA are identical to those covered under the 
initial IHA, which expired on September 24, 2021. Pursuant to the 
Marine Mammal Protection Act (MMPA), prior to issuing the initial IHA 
in 2020, NMFS requested comments on both the proposed IHA and the 
potential for renewing the initial authorization if certain 
requirements were satisfied. The Renewal requirements have been 
satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed Renewal not 
previously provided during the initial 30-day comment period. If 
issued, the Renewal would be effective through September 24, 2022.

DATES: Comments and information must be received no later than January 
21, 2022.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written

[[Page 757]]

comments should be submitted via email to [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments received are a part of 
the public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected 
Resources, NMFS, (301) 427-8421. Electronic copies of the original 
application, renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are proposed or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization is provided to the public for 
review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional period not to exceed 
one year for each reauthorization. In the notice of proposed IHA for 
the initial authorization, NMFS described the circumstances under which 
we would consider issuing a Renewal for this activity and requested 
public comment on a potential Renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a one-time, one-
year Renewal IHA following notice to the public providing an additional 
15 days for public comments when (1) up to another year of identical, 
or nearly identical, activities as described in the Description of the 
Specified Activities section of the initial IHA issuance notice is 
planned or (2) the activities as described in the Description of the 
Specified Activities section of the initial IHA issuance notice would 
not be completed by the time the initial IHA expires and a Renewal 
would allow for completion of the activities beyond that described in 
the DATES section of the notice of issuance of initial IHA, provided 
all of the following conditions are met:
    (1) A request for Renewal is received no later than 60 days prior 
to the needed Renewal IHA effective date (recognizing that the Renewal 
IHA expiration date cannot extend beyond one year from expiration of 
the initial IHA).
    (2) The request for Renewal must include the following:
     An explanation that the activities to be conducted under 
the requested Renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    (3) Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential Renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA Renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested Renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

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

[[Page 758]]

History of Request

    On September 25, 2020, NMFS issued an IHA to [Oslash]rsted to take 
marine mammals incidental to marine site characterization survey 
activities offshore from New York to Massachusetts in the areas of the 
Commercial Lease of Submerged Lands for Renewable Energy Development on 
the Outer Continental Shelf (OCS-A 0486/0517, OCS-A 0487, and OCS-A 
0500) (Lease Areas) and along potential submarine ECRs to landfall 
locations from New York to Massachusetts (85 FR 63508, October 8, 
2020), effective from September 25, 2020 through September 24, 2021. On 
July 8, 2021, NMFS received a request for a Renewal of that initial IHA 
so that [Oslash]rsted can continue survey activities beyond September 
24, 2021. [Oslash]rsted later communicated that marine site 
characterization surveys under the Renewal IHA would not begin until 
2022. As described in the request for a Renewal IHA, the activities for 
which incidental take is requested are identical to those covered by 
the initial authorization. As required, the applicant also provided a 
monitoring report (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-site-characterization) which confirms that the applicant has implemented the 
required mitigation and monitoring, and which also shows that no 
impacts of a scale or nature not previously analyzed or authorized have 
occurred as a result of the activities conducted.
    NMFS previously issued an IHA to [Oslash]rsted for similar 
activities (84 FR 52464; October 2, 2019); [Oslash]rsted complied with 
all the requirements (e.g., mitigation, monitoring, and reporting) of 
that IHA.

Description of the Specified Activities and Anticipated Impacts

    [Oslash]rsted proposes to conduct a second year of marine site 
characterization surveys, using high-resolution geophysical (HRG) 
equipment, within the Lease Areas, located approximately 14 miles (mi) 
(22 kilometers (km)) south of Martha's Vineyard, Massachusetts at its 
closest point, and proposed ECRs from the Lease Areas to potential 
shore landing locations for submarine cables associated with offshore 
wind development along the coast from New York to Massachusetts. The 
purpose of the marine site characterization surveys is to support site 
characterization, siting, and engineering design of offshore project 
facilities, including wind turbine generators (WTGs), offshore 
substation(s), and submarine cables within the Lease and proposed ECR 
Areas. The activities covered under the initial IHA have been 
completed. [Oslash]rsted requested a Renewal of the initial IHA issued 
by NMFS in September 2020 on the basis that they plan to conduct up to 
another year of identical activities in the same area as described in 
the Detailed Description of the Specified Activities section of the 
Federal Register notice for the initial proposed IHA (85 FR 48179, 
August 10, 2020), which can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    In their 2020 IHA application, [Oslash]rsted estimated it would 
conduct surveys at a rate of 70 kilometers (km) per survey day. 
[Oslash]rsted defined a survey day as a 24-hour activity day, which 
could be the sum of multiple partial surveys if less than 70 km is 
surveyed in 24 hours. Based on the planned 24-hour operations, the 
survey activities for all survey areas would require 1,302 survey days 
if one vessel were surveying continuously. However, [Oslash]rsted 
proposed to use an estimated five vessels simultaneously, with a 
maximum of no more than nine vessels. Therefore, [Oslash]rsted planned 
to complete all survey effort in one year, prior to the expiration of 
the initial IHA on September 24, 2021; all of the work addressed under 
the initial IHA was completed prior to the initial IHA expiration date. 
The Renewal IHA would authorize take, by Level B harassment only (in 
the form of behavioral disturbance), of 15 species/stocks of marine 
mammals for a second year of identical survey activities to be 
completed in one year, in the same area, using survey methods identical 
to those described in the initial IHA application; therefore, the 
anticipated effects on marine mammals and the affected stocks also 
remain the same. The amount of take, by Level B harassment, requested 
for the Renewal IHA is also identical to that authorized in the initial 
IHA. All active acoustic sources, mitigation, and monitoring measures 
would remain exactly as described in the Federal Register notice of the 
issued initial IHA (85 FR 63508, October 8, 2020; 85 FR 71058, November 
6, 2020).

Detailed Description of the Activity

    A detailed description of the marine site characterization survey 
activities for which incidental take is proposed here may be found in 
the Federal Register notice of the proposed IHA (85 FR 48179; August 
10, 2020) for the initial authorization. As described above, 
[Oslash]rsted completed the survey activities analyzed for the initial 
IHA by the date the IHA expired (September 24, 2021). The surveys 
[Oslash]rsted proposes to conduct under this Renewal would be a second 
year of surveys, identical to those described in the initial IHA. The 
location and nature of the activities, including the types of equipment 
planned for use, are identical to those described in the previous 
notices. The proposed Renewal IHA would be effective from the date of 
issuance to September 24, 2022 (one year from the expiration of the 
initial IHA).

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice of the proposed IHA for the initial 
authorization (85 FR 48179; August 10, 2020). NMFS has reviewed the 
monitoring data from the initial IHA, recent draft Stock Assessment 
Reports (SARs), Technical Reports (e.g., Pace 2021), information on 
relevant Unusual Mortality Events (UMEs), and other scientific 
literature, and determined that neither this nor any other information 
affects which species or stocks have the potential to be affected or 
the pertinent information in the Description of the Marine Mammals in 
the Area of Specified Activity contained in the supporting documents 
for the initial IHA.
    The draft 2021 SARs, available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports) state that estimated abundance has 
increased for the Western North Atlantic stocks of common dolphins 
(from 172,825 (CV = 0.21) to 172,974 (CV = 0.21)), and gray seals (from 
27,131 (CV = 0.19) to 27,300 (CV = 0.22)). Abundance estimates have 
decreased for the following: The Western North Atlantic stocks of fin 
whales (from 7,418 (CV = 0.25) to 6,802 (CV = 0.24)), Risso's dolphins 
(from 35,293 (CV = 0.19 to 35,215 (CV = 0.19)), harbor seals (from 
75,834 (CV = 0.15) to 61,336 (CV = 0.22)), and the Canadian East coast 
stock of minke whales (from 24,202 (CV = 0.3) to 21,968 (CV = 0.31)). 
The abundance estimate for the Western North Atlantic stock of North 
Atlantic right whales has also been updated in the draft 2021 SAR, 
which states that right whale abundance has decreased from 428 to 368 
(95% CI 356-378) individuals (Hayes et al., 2021).
    NMFS has preliminarily determined that neither the updated 
abundance

[[Page 759]]

information presented above nor any other new information affects which 
species or stocks have the potential to be affected or the pertinent 
information in the Description of the Marine Mammals in the Area of 
Specified Activity contained in the supporting documents for the 
initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Federal Register notice of the 
proposed IHA for the initial authorization (85 FR 48179; August 10, 
2020). NMFS has reviewed the most recent information relevant to this 
proposed Renewal IHA (monitoring data from the initial IHA, recent 
draft SARs, Technical Reports (e.g., Pace 2021), information on 
relevant Unusual Mortality Events, and other scientific literature and 
data), and preliminarily determined that there is no new information 
that affects our initial analysis of impacts on marine mammals and 
their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed (85 FR 48179; August 10, 2020) and issued (85 FR 63508; 
October 8, 2020) IHAs for the initial authorization. The acoustic 
source types, as well as source levels, applicable to this 
authorization remain unchanged from the initial IHA. Similarly, the 
stocks taken, methods of take and type of take (i.e., Level B 
harassment in the form of behavioral disturbance) remain unchanged from 
the initial IHA.
    In the initial authorization for marine site characterization 
survey activities, [Oslash]rsted used the following parameters to 
estimate the potential for take: (1) Maximum number of survey days that 
could occur over a 12-month period in each of the identified survey 
areas; (2) maximum distance each vessel could travel per 24-hour period 
in each of the identified survey areas; (3) maximum ensonified area; 
and (4) mean annual marine mammal densities in each of the identified 
survey areas. The calculated radial distances to the Level B harassment 
isopleth (160 decibel (dB) root mean square (rms)) from each acoustic 
source for a subset of representative survey equipment are included in 
Table 1 (please see the notice of the issued initial IHA for a complete 
list).

     Table 1--Modeled Radial Distances in Meters (m) From HRG Survey
   Equipment to Isopleth Corresponding to Level B Harassment Threshold
------------------------------------------------------------------------
                                                              Radial
                                                            distance to
                      Sound source                            Level B
                                                            harassment
                                                           isopleth (m)
------------------------------------------------------------------------
EdgeTech Chirp 424......................................               4
EdgeTech Chirp 512i.....................................               6
EdgeTech Chirp 216......................................              12
GeoPulse 5430...........................................              29
Teledyne Benthos Chirp III..............................              54
Applied Acoustics Triple plate S-Boom (700/1,000 J).....              76
Applied Acoustics, Dura-spark (500 J/400 tip)...........             141
Applied Acoustics, Dura-spark 400+400...................             141
GeoMarine, Geo-Source dual 400 tip sparker..............             141
------------------------------------------------------------------------

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

Estimated Take = D x ZOI x # of days

Where:

D = species density (per km\2\) and
ZOI = maximum daily ensonified area

    As described in the notices of the proposed (85 FR 48179; August 
10, 2020) and issued (85 FR 63508; October 8, 2020) IHAs for the 
initial authorization, not all noise producing survey equipment/sources 
will be operated concurrently by each survey vessel on every vessel 
day. In the initial IHA application, [Oslash]rsted calculated 
conservative ZOIs by applying the maximum radial distance for any 
category and type of HRG survey equipment considered in its assessment. 
The maximum distances to the Level B harassment isopleth for impulsive 
sources (141 m; e.g., sparkers or boomers) and non-impulsive sources 
(54 m; e.g., Chirps) were used to calculate the ZOIs for the 54 percent 
and 46 percent of survey days on which each type of survey equipment 
would be used predominantly, respectively. The resulting ZOIs were 19.8 
km\2\ (e.g., sparkers and boomers) and 7.659 km\2\ (e.g., Chirps). The 
Renewal request applied this exact same approach to calculate ZOIs, 
resulting in ZOIs for sparkers/boomers and Chirps that are identical to 
those in the initial IHA.
    The methodology for calculating take in the initial IHA applies to 
the proposed Renewal IHA for all species. The result is that the amount 
of take requested in [Oslash]rsted's request for a Renewal IHA is 
identical to that authorized in the initial IHA. NMFS agrees with 
[Oslash]rsted's request for take and proposes to authorize the same 
amount of take as described in their request.

                            Table 2--Renewal IHA Proposed Take by Level B Harassment
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                             Species                                   Abundance  Requested take         Percent
                                                                    estimate \1\                      population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale............  Eubalaena glacialis.....             368              37           10.05
Humpback whale........................  Megaptera novaeangliae..           1,396              21            1.50
Fin whale.............................  Balaenoptera physalus...           6,802              36            0.53
Sei whale.............................  Balaenoptera borealis...           6,292               2             0.0
Minke whale...........................  Balaenoptera                      21,968              13            0.06
                                         acutorostrata.
Sperm whale...........................  Physeter macrocephalus..           4,349               3            0.07
Long-finned pilot whale...............  Globicephala melas......          39,215              69            0.18
Bottlenose dolphin (W.N.A. offshore)..  Tursiops truncatus......          62,851             419            0.67
Common dolphin........................  Delphinus delphis.......         172,974           2,211            1.28
Atlantic white-sided dolphin..........  Lagenorhynchus acutus...          93,233             418            0.45
Atlantic spotted dolphin..............  Stenella frontalis......          35,215               7            0.02
Risso's dolphin.......................  Grampus griseus.........          35,493              30            0.08
Harbor porpoise.......................  Phocoena phocoena.......          95,543             916            0.96
Harbor seal...........................  Phoca vitulina..........          61,336             215            0.36
Gray seal.............................  Halichoerus grypus......          27,300             215            0.79
----------------------------------------------------------------------------------------------------------------
W.N.A. = Western North Atlantic.
\1\ Abundance estimates have been updated from the initial IHA (85 FR 63508; October 8, 2020) using the 2021
  Draft SARs (Hayes et al., 2021).


[[Page 760]]

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this proposed authorization are identical 
to those included in the Federal Register notice announcing the 
issuance of the initial IHA (85 FR 63508; October 8, 2020), and the 
discussion of the least practicable adverse impact included in that 
document and the notice of the proposed IHA remains applicable. All 
mitigation, monitoring, and reporting measures in the initial IHA are 
carried over to this proposed Renewal IHA and summarized below.
     Ramp-up: A ramp-up procedure would be used for HRG 
equipment capable of adjusting energy levels at the start or re-start 
of survey activities.
     Protected Species Observers (PSOs): A minimum of one NMFS-
approved PSO would be on duty and conducting visual observations at all 
times during daylight hours (i.e., from 30 minutes prior to sunrise 
through 30 minutes following sunset), and two active duty PSOs would 
conduct observations 30 minutes prior to and during nighttime ramp-ups 
of HRG equipment.
     Exclusion Zones (EZ): Marine mammal EZs would be 
established around the HRG survey equipment and monitored by PSOs 
during marine site characterization surveys as follows: A 500-m EZ for 
North Atlantic right whales during use of impulsive acoustic sources 
(e.g., boomers and/or sparkers) and non-impulsive, non-parametric sub-
bottom profilers (e.g., Chirps); and a 100-m EZ for all other marine 
mammals during use of impulsive acoustic sources (e.g., boomers and/or 
sparkers).
     Pre-Operation Clearance Protocols: [Oslash]rsted would 
implement a 30-minute pre-start clearance period of the specified EZs 
prior to the initiation of ramp-up of boomers, sparkers, and non-
impulsive, non-parametric sub-bottom profilers (e.g., Chirps). During 
this period, the EZs would be monitored by PSOs using the appropriate 
visual technology. Ramp-up would not be initiated if any marine 
mammal(s) is within its respective EZ. If a marine mammal is observed 
within its respective EZ during the pre-start clearance period, ramp-up 
would not begin until the animal(s) has been observed exiting its 
respective EZ, or until an additional period has elapsed with no 
further sighting (i.e., 15 minutes for small odontocetes and seals, and 
30 minutes for all other species). Pre-clearance and ramp-up, but not 
shutdown, would be required when using non-impulsive, non-parametric 
sub-bottom profilers (e.g., Chirps), except in the case that a North 
Atlantic right whale is observed within the 500-m EZ.
     Shutdown of HRG Equipment: If an HRG source is active and 
a marine mammal is observed entering or within a relevant EZ (as 
described above), an immediate shutdown of the HRG survey equipment 
would be required. Note that this shutdown requirement would be waived 
for certain genera of small delphinids. 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 
(54 m, non-impulsive; 141 m impulsive), shutdown would occur.
     Vessel strike avoidance measures: Vessel strike measures 
include, but are not limited to, separation distances for large whales 
(500 m North Atlantic right whales, 100 m other large whales; 50 m 
other cetaceans and pinnipeds), restricted vessel speeds, and 
operational maneuvers.
     Seasonal Operating Requirements: [Oslash]rsted would limit 
to three the number of survey vessels that will operate concurrently 
from January 1 through May 31 within the Lease Areas (OSC-A 0486/0517, 
OCS-A 0487, and OCS-A 500) and ECR Area north of the Lease Areas up to, 
but not including, coastal and bay waters. [Oslash]rsted would operate 
either a single vessel, two vessels concurrently or, for short periods, 
no more than three survey vessels concurrently in the areas described 
above from January 1 through May 31. The seasonal restriction described 
above would help to reduce both the number and intensity of North 
Atlantic right whale takes by Level B harassment.
     Reporting: [Oslash]rsted would submit a final technical 
report within 90 days following completion of the surveys. In the event 
that [Oslash]rsted personnel discover an injured or dead marine mammal, 
[Oslash]rsted would be required to report the incident to NMFS Office 
of Protected Resources (OPR) ([email protected] and 
[email protected]) and to the New England/Mid-Atlantic Regional 
Stranding Coordinator through the NOAA Fisheries Marine Mammal and Sea 
Turtle Stranding and Entanglement Hotline (866-755-6622) as soon as 
feasible. In the event of a ship strike of a marine mammal by any 
vessel involved in the activities covered by the authorization, 
[Oslash]rsted would be required to report the incident immediately to 
NMFS OPR and to the New England/Mid-Atlantic Regional Stranding 
Coordinator through the NOAA Fisheries Marine Mammal and Sea Turtle 
Stranding and Entanglement Hotline. [Oslash]rsted would be required to 
immediately cease all project activities until NMFS OPR is able to 
review the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the proposed Renewal IHA.

Comments and Responses

    As noted previously, NMFS published a notice of the proposed 
initial IHA (85 FR 48179; August 10, 2020) and solicited public 
comments on both our proposal to issue the initial IHA for marine site 
characterization surveys and on the potential for a Renewal IHA, should 
certain requirements be met.
    All public comments were addressed in the notices announcing the 
issuance of the initial IHA (85 FR 63508, October 8, 2020; 85 FR 71058, 
November 6, 2020). Below, we describe how we have addressed, with 
updated information where appropriate, the comment received that 
specifically pertains to the renewal of the 2020 IHA.
    Comment: A group of environmental non-governmental organizations 
(ENGOs) objected to NMFS' process to consider extending any 1-year IHA 
with a truncated 15-day comment period, claiming that it is contrary to 
the MMPA.
    Response: NMFS' IHA Renewal process meets all statutory 
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA, 
are valid for a period of not more than one year. The public has at 
least 30 days to comment on all proposed IHAs, with a cumulative total 
of 45 days for IHA Renewals. As noted above, the Request for Public 
Comments section in the notice of the proposed initial IHA made clear 
that the agency was seeking comment on both the proposed initial IHA 
and the potential issuance of a Renewal for this project. Because any 
Renewal (as explained in the Request for Public Comments section) is 
limited to another year of identical or nearly identical activities in 
the same location (as described in the Description of the Proposed 
Activity section) 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.
    While there are additional documents submitted with a Renewal 
request, for a qualifying Renewal these are limited to documentation 
that NMFS will make

[[Page 761]]

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 will also confirm, among 
other things, that the activities will occur in the same location; 
involve the same species and stocks; provide for continuation of the 
same mitigation, monitoring, and reporting requirements; and that no 
new information has been received that would alter the prior analysis. 
The renewal request must also contain a preliminary monitoring report, 
but that is to verify that effects from the activities do not indicate 
impacts of a scale or nature not previously analyzed. The additional 
15-day public comment period 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. NMFS also will provide direct notice of the 
proposed Renewal to those who commented on the initial IHA, to provide 
an opportunity to submit any additional comments. 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.
    In addition to the IHA Renewal process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress's intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for Renewals in the regulations, description of the process 
and express invitation to comment on specific potential Renewals in the 
Request for Public Comments section of each proposed IHA, the 
description of the process on NMFS' website, further elaboration on the 
process through responses to comments such as this, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed initial IHAs and 
Renewals, respectively, NMFS has ensured that the public ``is invited 
and encouraged to participate fully in the agency decision-making 
process.''
    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. For more information, NMFS has published a description of the 
Renewal process on our website (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals).

Preliminary Determinations

    The survey activities proposed by [Oslash]rsted are identical to 
those analyzed in the initial IHA, including the planned number of days 
and location of activity, as are the method of taking and the effects 
of the action. Therefore, the amount of take proposed is equal to that 
authorized in the initial IHA. The proposed mitigation measures and 
monitoring and reporting requirements, as described above, are 
identical to the initial IHA. The potential effect of [Oslash]rsted's 
activities remains limited to Level B harassment in the form of 
behavioral disturbance. In analyzing the effects of the activities in 
the initial IHA, NMFS preliminarily determined that [Oslash]rsted's 
activities would have a negligible impact on the affected species or 
stocks and that the authorized take numbers of each species or stock 
were small relative to the relevant stocks (e.g., less than one-third 
of the abundance of all stocks).
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. This includes consideration of the 
estimated abundances of five stocks (North Atlantic right whales, fin 
whales, minke whales, Risso's dolphins, and harbor seals) decreasing 
and the estimated abundances of two stocks (common dolphins and gray 
seals) increasing (Hayes et al., 2021). Based on the information and 
analysis contained here and in the referenced documents, NMFS has 
determined the following: (1) The required mitigation measures will 
effect the least practicable adverse impact on marine mammal species or 
stocks and their habitat; (2) the authorized takes will have a 
negligible impact on the affected marine mammal species or stocks; (3) 
the authorized takes represent small numbers of marine mammals relative 
to the affected stock abundances; (4) [Oslash]rsted's activities will 
not have an unmitigable adverse impact on taking for subsistence 
purposes as no relevant subsistence uses of marine mammals are 
implicated by this action, and; (5) appropriate monitoring and 
reporting requirements are included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take of endangered or threatened species.
    The NMFS Office of Protected Resources is proposing to authorize 
the incidental take of four species of marine mammals that are listed 
under the ESA: The North Atlantic right, fin, sei and sperm whale. We 
requested initiation of consultation under Section 7 of the ESA with 
NMFS GARFO on July 1, 2020, for issuance of the initial IHA. 
Previously, BOEM consulted with NMFS GARFO under section 7 of the ESA 
on commercial wind lease issuance and site assessment activities on the 
Atlantic Outer Continental Shelf in Massachusetts, Rhode Island, New 
York and New Jersey Wind Energy Areas. The NMFS GARFO issued a 
Biological Opinion in 2013 concluding that these activities may 
adversely affect but are not likely to jeopardize the continued 
existence of the North Atlantic right, fin, sei and sperm whale. Upon 
request from the NMFS Office of Protected Resources, NMFS GARFO issued 
an amended incidental take statement associated with this Biological 
Opinion on September 25, 2020, to include the take of the ESA-listed 
marine mammal species authorized through the initial IHA. The proposed 
Renewal IHA provides no new information about the effects of the 
action, nor does it change the extent of effects of the action, or any 
other basis to require reinitiation of consultation with NMFS GARFO; 
therefore, the incidental take statement issued for the initial IHA 
remains valid.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a Renewal IHA to [Oslash]rsted for conducting marine site 
characterization survey activities offshore from New York to 
Massachusetts in the areas of the Commercial Lease of Submerged Lands 
for Renewable Energy Development on

[[Page 762]]

the Outer Continental Shelf (OCS-A 0486/0517, OCS-A 0487 and OCS-A 
0500) and along potential ECRs to landfall locations from New York to 
Massachusetts from the date of issuance through September 24, 2022, 
provided the previously described mitigation, monitoring, and reporting 
requirements are incorporated. A draft of the proposed initial IHA and 
the final initial IHA can be found at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-site-characterization. We request comments on our analyses, the 
proposed Renewal IHA, and any other aspect of this Notice. Please 
include with your comments any supporting data or literature citations 
to help inform our final decision on the request for MMPA 
authorization.

    Dated: January 3, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-00016 Filed 1-5-22; 8:45 am]
BILLING CODE 3510-22-P