Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore From New York to Massachusetts, 13975-13983 [2022-05102]

Download as PDF Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices Secretary, NAFTA Secretariat, Room 2061, 1401 Constitution Avenue NW, Washington, DC 20230, (202) 482–5438. SUPPLEMENTARY INFORMATION: Article 1904 of chapter 19 of NAFTA provides a dispute settlement mechanism involving trade remedy determinations issued by the Government of the United States, the Government of Canada, and the Government of Mexico. Following a Request for Panel Review, a Binational Panel is composed to provide judicial review of the trade remedy determination being challenged and then issue a binding Panel Decision. The NAFTA Binational Panel Decision is available publicly at https://can-mexusa-sec.org/secretariat/report-rapportreporte.aspx?lang=eng. There are established NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews and the NAFTA Panel Decision has been notified in accordance with Rule 70. For the complete Rules, please see https://can-mex-usa-sec.org/ secretariat/agreement-accord-acuerdo/ nafta-alena-tlcan/rules-regles-reglas/ article-article-articulo_ 1904.aspx?lang=eng. Dated: March 8, 2022. Garrett Peterson, International Trade Specialist, NAFTA Secretariat. [FR Doc. 2022–05169 Filed 3–10–22; 8:45 am] BILLING CODE 3510–GT–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648–XB797] Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore From New York to Massachusetts National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; issuance of Renewal incidental harassment authorization (IHA). AGENCY: In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS has issued a Renewal incidental harassment authorization (IHA) to ;rsted to incidentally harass marine mammals incidental to marine site characterization surveys offshore from New York to Massachusetts. lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 This Renewal IHA is valid from the date of issuance through September 24, 2022. 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-undermarine-mammal-protection-act. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: DATES: Background The Marine Mammal Protection Act (MMPA) prohibits the ‘‘take’’ of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are proposed or, if the taking is limited to harassment, a notice of a proposed incidental take authorization is provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other ‘‘means of effecting the least practicable adverse impact’’ on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to here as ‘‘mitigation measures’’). Monitoring and reporting of such takings are also required. The meaning of key terms such as ‘‘take,’’ ‘‘harassment,’’ and ‘‘negligible impact’’ can be found in section 3 of the MMPA (16 U.S.C. 1362) and the agency’s regulations at 50 CFR 216.103. NMFS’ regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods not to exceed one PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 13975 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 IHA for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a caseby-case basis, NMFS may issue a onetime 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 Detailed Description of Specified Activities section of the initial IHA issuance notice is planned or (2) the activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice would not be completed by the time the initial IHA expires and a renewal would allow for completion of the activities beyond that described in the DATES section of the initial IHA issuance, provided all of the following conditions are met: (1) A request for renewal is received no later than 60 days prior to the needed Renewal IHA effective date (recognizing that the Renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA). (2) The request for renewal must include the following: • An explanation that the activities to be conducted under the requested Renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take). • 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 E:\FR\FM\11MRN1.SGM 11MRN1 13976 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices Renewal IHA. A description of the renewal process may be found on our website at: www.fisheries.noaa.gov/ national/marine-mammal-protection/ incidental-harassment-authorizationrenewals. lotter on DSK11XQN23PROD with NOTICES1 History of Request On September 25, 2020, NMFS issued an IHA to ;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 export cable routes (ECRs) to landfall locations from New York to Massachusetts (85 FR 63508, October 8, 2020), effective from September 25, 2020 through September 24, 2021. Work under the initial IHA was completed, and on July 8, 2021, NMFS received an application for the renewal of that initial IHA to cover a second year of identical work. ;rsted later communicated that marine site characterization surveys under the Renewal IHA would not begin until 2022. As described in the application for renewal, 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-orstedwind-power-north-america-llc-sitecharacterization) which confirms that the applicant has implemented the required mitigation and monitoring, and which also shows that no impacts of a scale or nature not previously analyzed or authorized have occurred as a result of the activities conducted. The notice of the proposed Renewal IHA was published on January 6, 2022 (87 FR 756). Description of the Specified Activities and Anticipated Impacts ;rsted plans 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 VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 is to support site assessment, 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. ;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/incidentaltake-authorizations-other-energyactivities-renewable. In their 2020 IHA application, ;rsted estimated it would conduct surveys at a rate of 70 kilometers (km) per survey day. ;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, ;rsted proposed to use an estimated five vessels simultaneously from June 1 through December 31, with a maximum of no more than nine vessels. Therefore, ;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 will 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 no later than September 24, 2022, 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 identical to that authorized in the initial IHA. All active acoustic sources, mitigation, and monitoring measures are exactly as described in the Federal Register notices 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 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 which incidental take is planned 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, ;rsted completed the survey activities analyzed for the initial IHA by the date the IHA expired (September 24, 2021). The surveys ;rsted plans to conduct under this renewal will be 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. Description of Marine Mammals A description of the marine mammals in the area of the activities for which take is authorized, 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 alters 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-stockassessment-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 species: 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 percent CI 356–378) individuals (Hayes et al., 2021). E:\FR\FM\11MRN1.SGM 11MRN1 13977 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices NMFS has determined that neither the updated abundance 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 authorized may be found in the Federal Register notices of the proposed (85 FR 48179; August 10, 2020) and final (85 FR 63508, October 8, 2020; 85 FR 71058, November 6, 2020) initial IHAs. NMFS has reviewed the most recent information relevant to this 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 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 final (85 FR 63508; October 8, 2020) IHAs for the initial authorization. Specifically, the acoustic source types, source levels, and days of operation applicable to this authorization remain unchanged from the previously issued initial IHA. Similarly, the methodology for calculating take, and thus 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, as do the number of takes for each species or stock, which are indicated below in Table 2. TABLE 2—AUTHORIZED TAKE BY LEVEL B HARASSMENT Species North Atlantic right whale ................................ Humpback whale ............................................ Fin whale ......................................................... Sei whale ........................................................ Minke whale .................................................... Sperm whale ................................................... Long-finned pilot whale ................................... Bottlenose dolphin (W.N.A. offshore) ............. Common dolphin ............................................. Atlantic white-sided dolphin ............................ Atlantic spotted dolphin ................................... Risso’s dolphin ................................................ Harbor porpoise .............................................. Harbor seal ..................................................... Gray seal ......................................................... Abundance estimate 1 Eubalaena glacialis ........................................ Megaptera novaeangliae ................................ Balaenoptera physalus ................................... Balaenoptera borealis .................................... Balaenoptera acutorostrata ............................ Physeter macrocephalus ................................ Globicephala melas ........................................ Tursiops truncatus .......................................... Delphinus delphis ........................................... Lagenorhynchus acutus ................................. Stenella frontalis ............................................. Grampus griseus ............................................ Phocoena phocoena ...................................... Phoca vitulina ................................................. Halichoerus grypus ........................................ 368 1,396 6,802 6,292 21,968 4,349 39,215 62,851 172,974 93,233 35,215 35,493 95,543 61,336 27,300 Authorized take 37 21 36 2 13 3 69 419 2,211 418 7 30 916 215 215 Percent population 10.05 1.50 0.53 0.0 0.06 0.07 0.18 0.67 1.28 0.45 0.02 0.08 0.96 0.36 0.79 lotter on DSK11XQN23PROD with NOTICES1 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). Description of Mitigation, Monitoring and Reporting Measures The mitigation, monitoring, and reporting measures included as requirements in this authorization are identical to those included in the Federal Register notice announcing the issuance of the initial IHA (85 FR 63508, October 8, 2020), and the discussion of the least practicable adverse impact included in that document and the notice of the proposed Renewal IHA remains applicable. All mitigation, monitoring, and reporting measures in the initial IHA are carried over to this Renewal IHA and summarized below: • Ramp-up: A ramp-up procedure must 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 must be on duty and conducting visual observations at all times during VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 daylight hours (i.e., from 30 minutes prior to sunrise through 30 minutes following sunset), and two active duty PSOs must conduct observations 30 minutes prior to and during nighttime ramp-ups and operation of HRG equipment. • Exclusion Zones (EZ): Marine mammal EZs must 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 subbottom 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: ;rsted must implement a 30-minute pre-start clearance period of the specified clearance zones (CZs; 500 m PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 for North Atlantic right whales, 100 m for all other marine mammals) prior to the initiation of ramp-up of boomers, sparkers, and non-impulsive, nonparametric sub-bottom profilers (e.g., Chirps). During this period, the CZs must be monitored by PSOs using the appropriate visual technology. Ramp-up must not be initiated if any marine mammal(s) is within its respective CZ. If a marine mammal is observed within its respective CZ during the pre-start clearance period, ramp-up must not begin until the animal(s) has been observed exiting its respective CZ, 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). Preclearance and ramp-up, but not shutdown, will be required when using only non-impulsive, non-parametric sub-bottom profilers (e.g., Chirps), except in the case that a North Atlantic E:\FR\FM\11MRN1.SGM 11MRN1 lotter on DSK11XQN23PROD with NOTICES1 13978 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices right whale is observed within the 500m CZ. • 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 is required. Note that this shutdown requirement is 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 has been met, approaches or is observed within the Level B harassment zone (54 m, nonimpulsive; 141 m impulsive), shutdown must occur. • Vessel strike avoidance measures: Vessel strike avoidance measures include, but are not limited to, vessel 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: ;rsted must limit to three the number of survey vessels that 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. ;rsted must 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. This seasonal restriction will help to reduce both the number and intensity of North Atlantic right whale takes by Level B harassment. • Reporting: ;rsted must submit a final technical report within 90 days following completion of the surveys. In the event that ;rsted personnel discover an injured or dead marine mammal, ;rsted must report the incident to NMFS Office of Protected Resources (OPR) (PR.ITP.MonitoringReports@ noaa.gov and itp.esch@noaa.gov) 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, ;rsted must 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. ;rsted must VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 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 A notice of NMFS’ proposal to issue a Renewal IHA to ;rsted was published in the Federal Register on January 6, 2022 (87 FR 756). That notice either described, or referenced descriptions of, ;rsted’s activity, the marine mammal species that may be affected by the activity, anticipated effects on marine mammals and their habitat, estimated amount and manner of take, and proposed mitigation, monitoring and reporting measures. NMFS received comments from a group of environmental non-governmental organizations (ENGOs) including the Natural Resources Defense Council, Conservation Law Foundation, Defenders of Wildlife, Whale and Dolphin Conservation, National Wildlife Federation, NY4WHALES, and the Southern Environmental Law Center. However, the comments consisted of a short cover letter with a subject line and comments referring to the issuance of an IHA for the construction of a different project (87 FR 806; January 6, 2022), and an attached set of previously submitted recommendations related to right whale mitigation for the site assessment and characterization phases and construction phases of offshore wind development more generally. That other project occupies a small portion of ;rsted’s survey area for this Renewal IHA, and the relevant issued IHA would be effective during a different time from when this Renewal IHA would be effective. NMFS thus did not receive any comments relevant to the issuance of this Renewal IHA. Nevertheless, given the more general nature of some of the issues raised in the ENGOs’ appended recommendations, NMFS reviewed the comments. To the extent that some of the issues may be relevant to this Renewal IHA, the pertinent comments and our responses are summarized below. Comment 1: The 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 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 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 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 E:\FR\FM\11MRN1.SGM 11MRN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices 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; 85 FR 53342, August 28, 2020; 86 FR 33664, June 25, 2021; 87 FR 806, January 6, 2022), 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/incidentalharassment-authorization-renewals). Comment 2: The ENGOs recommended that NMFS should require all project vessels to adhere to a 10-knot (18.5 km/hr) speed restriction at all times, and in all places except in limited circumstances where the best available scientific information demonstrates that whales do not occur in the area. As a mechanism for modifying this speed restriction, the ENGOs suggest that the project proponent develop and implement, in consultation with NMFS, an Adaptive Plan that is scientifically proven to be equally or more effective than a 10-knot (18.5 km/hr) speed restriction. Response: ;rsted communicated to NMFS that marine site characterization vessels (both survey and supporting) travel at 10 knots or less while in transit and during the surveys. During active surveying, speeds are generally significantly less (in the range of 3–5 knots) although this is dependent on the type of equipment and survey. NMFS has analyzed the potential for ship strike resulting from ;rsted’s activity and has determined that the mitigation measures specific to ship strike avoidance are sufficient to avoid VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 the potential for ship strike. These include, but are not limited to the survey vessel crew members responsible for navigation duties must receive sitespecific training on marine mammal sighting/reporting and vessel strike avoidance measures; the vessel operator and crew must maintain a vigilant watch for all large whale species (including the North Atlantic right whale); a requirement that all vessel operators comply with the 10 knot (18.5 km/hour) or less speed restriction while underway in any established Seasonal Management Areas (SMAs), or Dynamic Management Areas (DMAs); a requirement that all vessel operators reduce vessel speed to 10 knots (18.5 km/hour) or less when any large whale, 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 at least 500 m from any sighted North Atlantic right whale; a requirement that, if underway, vessels must steer a course away from any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less until the 500m minimum separation distance has been established; a requirement that all vessels must maintain a minimum separation distance of 100 m from sperm whales and other baleen whales; and a requirement that 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). We have determined the existing ship strike avoidance measures are sufficient to ensure the least practicable adverse impact on species or stocks and their habitat. Further, NMFS is not aware of a wind industry vessel (e.g., marine site characterization survey vessel or wind energy vessels used in European wind project construction and operation) reporting a ship strike to date. Regarding the ENGOs’ suggestion that project proponents should coordinate with NMFS to develop an Adaptive Plan for potential modification of vessel speed restrictions for future projects, NMFS will consider specific proposals for the development, quantitative evaluation, and implementation of such a Plan, should that information become available in the future. Comment 3: The ENGOs recommend that NMFS prohibit site characterization surveys during times of highest risk to North Atlantic right whales, which they define as times of highest relative density of animals during foraging and PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 13979 migration, and times when mother-calf pairs, pregnant females, surface active groups, or aggregations of three or more whales are, or, are expected to be, present. The ENGOs suggest that these time periods should be defined based on the best available scientific information at the time of the survey activity. Finally, the ENGOs suggest that the development and scientific validation of a near real-time monitoring system and mitigation protocol for North Atlantic right whales and other large whale species could be used to dynamically manage the timing of site assessment and characterization activities to ensure that those activities are undertaken during times of lowest risk for all relevant larges whales species. Response: NMFS is requiring ;rsted to operate no more than three concurrent survey vessels, with HRG survey equipment operating at or below 180 kHz, from January 1 through May 31 within the Lease Areas and ECRs, not including coastal and bay waters. This seasonal restriction aligns with the timeframe during which North Atlantic right whale densities are highest in the project area, based on Roberts (2020) and Robert et al. (2021), which incorporated more recent survey data (through 2018) and that for the first time included data from the 2011–2015 surveys of the MA and RI/MA wind energy areas (WEAs; Kraus et al. 2016) as well as the 2017–2018 continuation of those surveys, known as the Marine Mammal Surveys of the Wind Energy Areas (MMS–WEA) (Quintana et al., 2018). We believe these models provide the best available scientific information to quantify temporal and spatial patterns of North Atlantic right whale occurrence in the project area. The seasonal restriction will limit the number and intensity of potential take by Level B harassment resulting from exposure to active HRG equipment (i.e., boomers, sparkers, and Chirps). NMFS is also requiring ;rsted to comply with vessel speed restrictions associated with SMAs, and DMAs if any are established near the project area. Prior to and during survey operations, ;rsted must consult the NOAA Right Whale Sightings Advisory System and WhaleMap for situational awareness of recent sighting locations. Should North Atlantic right whales be observed while HRG survey equipment is active, ;rsted must abide by a mandatory 500-m shutdown zone, which is more than three times as large as the greatest distance to the Level B harassment isopleth (141 m). Finally, the ship strike avoidance and minimum separation requirements described in response to Comment 2 further E:\FR\FM\11MRN1.SGM 11MRN1 lotter on DSK11XQN23PROD with NOTICES1 13980 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices minimize the potential impacts of site characterization surveys on North Atlantic rights whales. The ENGOs suggested that a real-time monitoring system and mitigation protocol for North Atlantic right whales would be useful to dynamically manage the timing of site characterization survey activities, although it is not clear if the suggested system and protocol is based on acoustic or visual monitoring, or both. 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 that 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-OPR-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-rightwhale-monitoring-and-surveillancereport-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 autobuoys 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. The type of dynamic monitoring system and mitigation protocol suggested by the commenters has not been proposed by any applicant, including ;rsted, when applying for an IHA to conduct the type of work analyzed here. As discussed above, the seasonal restriction (January 1 through May 31) already serves to reduce temporal and spatial overlap between ;rsted’s marine site characterization surveys and times during which North Atlantic right whale occurrence is expected to be highest in the project area. In addition, NMFS cannot require VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 project proponents to be part of a monitoring network such as the one described above until such a network of monitoring devices is available. However, NMFS will consider how to best incorporate the use of such systems in the future should such a network be developed. Comment 4: The ENGOs recommended that site characterization surveys should not be initiated within 1.5 hours of civil sunset or in times of low visibility when the visual clearance zone and exclusion zone cannot be visually monitored, as determined by the lead PSO. Response: NMFS acknowledges the limitations inherent in detection of marine mammals at night. However, no injury is expected to result from exposure to HRG equipment, 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., <54 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. 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 ;rsted 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 over the course of the surveys. In fact, the restrictions recommended by the commenters could result in the surveys spending increased total time on the water introducing noise into the marine environment, which may result in greater overall exposure to sound for marine mammals; PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 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 5: The ENGOs recommended that NMFS should require project proponents to implement visual clearance and exclusion zones of at least 500 m for all large whale species, except North Atlantic right whales, for which they recommended 1,000-m visual and acoustic clearance and exclusion zones. To the monitor the acoustic zones, the ENGOs recommend utilizing near real-time passive acoustic monitoring (PAM) from a vessel other than the dedicated survey vessel, or from a stationary unit. Response: NMFS disagrees with these recommendations for this Renewal IHA. Regarding the clearance and shutdown zone recommendations, we note that the 500-m exclusion zone for North Atlantic right whales exceeds the modeled distance to the Level B harassment isopleth (141 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 zone 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., <36.5 m for all impulsive sources). There are several reasons why we do not agree that use of PAM is warranted E:\FR\FM\11MRN1.SGM 11MRN1 lotter on DSK11XQN23PROD with NOTICES1 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices for ;rsted’s 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 for ;rsted’s HRG survey activities is limited. We note first using a towed passive acoustic sensor(s) to detect baleen whales (including North Atlantic right whales) is not ideal for monitoring low-frequency vocalizing baleen whales because calls are masked by ship and flow noise, and vessel presence can alter vocal behavior of the study animals (Lesage et al., 1999; Thode, 2004; Norris et al., 2012; Guerra et al., 2014; Heinemann et al., 2016). Vessels produce low-frequency noise, primarily through propeller cavitation, with the main energy in the 5–300 Hertz (Hz) frequency range. Source levels range from approximately 140 to 195 decibels (dB) re 1 micropascal (mPa) at 1 m (NRC, 2003; Hildebrand, 2009), depending on factors such as ship type, load, and speed, and ship hull and propeller design. Studies of vessel noise show that it appears to increase background noise levels in the 71–224 Hz range by 10–13 dB (Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems employ hydrophones towed in streamer cables approximately 500 m behind a vessel. Noise from water flow around the cables and from strumming of the cables themselves is also low frequency and typically masks signals in the same range (i.e., most baleen whale vocalizations). Whales are routinely detected acoustically using moored systems and sonobuoys, or using autonomous gliders. However, these platforms are all quiet. Providers of observer services, including PAM, report that they have never detected a baleen whale (other than rare detections of humpback whales, which have significantly higher frequency content in their calls) using towed PAM. Even if a right whale could be detected using towed PAM, the area expected to be ensonified above the Level B harassment threshold is relatively small (≤141 m) and, 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, supporting the limited value of PAM for use in reducing take with smaller zones. In addition, if a PAM system was deployed from a secondary vessel, that vessel will still have to travel at 4 knots to accompany the survey vessel, leading to the same limitations when using towed PAM. Finally, if a stationary PAM unit were deployed (assuming its location is within relatively close VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 proximity to the starting position of the survey vessel), the unit would have to be equipped to localize North Atlantic right whale calls, for example, to positions within the clearance and exclusion zones (regardless of size) relative to the changing position of a transiting survey vessel. Even if localization is possible, it becomes impracticable once the vessel moves out of the detection and localization range of the stationary unit. Many of the ENGO recommendations included acoustic monitoring of clearance and exclusion zones. Given that the effects to marine mammals from the types of surveys authorized in this IHA are expected to be limited to a small amount of low-level behavioral harassment, even in the absence of mitigation, the additional benefit anticipated for North Atlantic right whales by adding this detection method would be essentially non-existent. Given the lack of efficacy, the logistical challenges, and the cost 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. For the reasons described above, NMFS’ responses to additional comments do not include references to acoustic monitoring during site characterization surveys. Please see the ENGOs’ full comment letter for information regarding their general recommendations for acoustic monitoring, which can be found here: https://www.fisheries.noaa.gov/action/ incidental-take-authorization-orstedwind-power-north-america-llc-sitecharacterization. Comment 6: The ENGOs recommended that NMFS should require project proponents to (1) conduct visual monitoring of the clearance zone beginning 30 minutes prior to commencement or re-initiation of, and continuing throughout, survey activities, (2) delay survey activities if a North Atlantic right whale, or other large whale species, is detected within the relevant clearance zone, (3) shutdown survey activities upon a visual detection of any of these species within the species-specific exclusion zone and, if shutdown occurs, (4) resume or initiate survey activities only after the lead PSO confirms that no North Atlantic right whales or other large whale species have been visually detected in the relevant clearance zones for 30 minutes. The ENGOs suggested that these measures should be implemented during site characterization activities PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 13981 with noise levels that could result in injury or harassment to large whales. Response: No injury is expected to result from site characterization surveys, 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., <36.5 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. Only take by Level B harassment is anticipated and authorized. NMFS does agree that monitoring of a clearance zone should begin 30 minutes prior to commencement or resumption of use of HRG survey equipment that may incidentally harass marine mammals following a delay or shutdown. NMFS also agrees that visual detection of a species (including North Atlantic right whales) within its respective clearance zone during the 30minute clearance period or exclusion zone when acoustic sources are active should trigger a delay or shutdown, respectively, of survey activities. Finally, as suggested by the ENGOs, in order for survey activities to commence or resume, the lead PSO must confirm that no North Atlantic right whale or other baleen whale has been sighted in the clearance zone during the clearance period. Thus, these measures are required by all authorizations for take incidental to site characterization activities. Comment 7: The ENGOs stated that it is their general view that NMFS must require a minimum of four PSOs on survey vessels following a two-on, twooff rotation, each responsible for scanning no more than 180° of the horizon. 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., 500m exclusion zone for North Atlantic right whales, which is more than three times the maximum 141-m Level B harassment zone) will be successful in detecting marine mammals that are available for observation at the surface. Further, ;rsted is required to deploy two PSOs for nighttime survey activities, during which the PSOs will have access to night vision devices. The monitoring report for the initial IHA, as well as monitoring reports for E:\FR\FM\11MRN1.SGM 11MRN1 lotter on DSK11XQN23PROD with NOTICES1 13982 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices similar marine site assessment and characterization surveys (which can be found here https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable), 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 initial IHA and this Renewal IHA that nightvision equipment (i.e., night-vision goggles and/or infrared technology) must be available for use during nighttime monitoring. Under the issued Renewal 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 exclusion zones. 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 8: The ENGOs recommended that NMFS should require operation of sub-bottom profiling systems at the lowest practicable source level for the survey objectives. Response: ;rsted has selected the equipment necessary to achieve their objectives. We have evaluated the effects expected as a result of use of this equipment, made the necessary findings, and imposed mitigation requirements sufficient to achieve the least practicable adverse impact on the affected species and stocks of marine mammals. It is not within NMFS’ purview to make judgments regarding what constitutes the ‘‘lowest practicable source level’’ for an operator’s survey objectives. Comment 9: The ENGOs recommended that (1) NMFS require project proponents to report observation(s) of a North Atlantic right whale(s) to NMFS or the USCG as soon as possible, but no later than the end of the PSO shift during which the VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 observation(s) occurred, and (2) ;rsted should be required to immediately report an entangled or dead North Atlantic right whale or other large whale species to NMFS OPR, NOAA Fisheries Marine Mammal and Sea Turtle Stranding and Entanglement Hotline (866–755–6622; also the North Atlantic Right Whale Sighting Advisory System), or the USCG via available reporting systems (e.g., phone, app, radio). In addition, the ENGOs encourage project proponents to commit to supporting and participating in future advancing/ streamlining efforts for methods of reporting. Finally, the ENGOs suggest that quarterly reports of PSO sightings data should be made publicly available to inform marine mammal science and protection. Response: NMFS agrees with the ENGOs’ first and second recommendations, hence the inclusion of these measures in both the initial and Renewal IHAs. Regarding reporting methods, NMFS agrees with the ENGOs and supports efforts to improve methods by which a sighting of a live North Atlantic right whale, or entangled or dead North Atlantic right whale (or other large whale), is reported by a project proponent and we welcome specific proposals to do so. Finally, NMFS does not concur with the suggestion that ;rsted should submit quarterly PSO sightings data reports, and that these reports be made publicly available. ;rsted is required to submit a final report to NMFS within 90 days after completion of survey activities or expiration of this IHA, whichever comes sooner. The report must fully document the methods and monitoring protocols, summarize the data recorded during monitoring, and describe, assess, and compare the effectiveness of monitoring and mitigation measures. The ENGOs did not provide specific examples regarding how making PSO sightings data publicly available on a quarterly basis would inform marine mammal science and protection in any meaningful way on this timescale. PSO sightings data (as well as all of the additional information required in a final report) are included in PSO monitoring reports from previous marine site characterization surveys, including the PSO monitoring report from the initial IHA that NMFS is renewing, which can be found here: https://www.fisheries.noaa.gov/ national/marine-mammal-protection/ incidental-take-authorizations-otherenergy-activities-renewable. As noted above, ;rsted is already required to immediately report all North Atlantic right whale sightings to the NMFS North PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 Atlantic Right Whale Sighting Advisory System (866) 755–6622) and to the U.S. Coast Guard via channel 16, providing mariners in the area with awareness of North Atlantic right whale locations and, thus, the opportunity to proactively reduce vessel speeds. In addition, daily visual and acoustic detections of North Atlantic right whales and other large whale species along the Eastern Seaboard, as well as Slow Zone locations, are publicly available on WhaleMap (https://whalemap.org/ WhaleMap/). Further, recent acoustic detections of North Atlantic right whales and other large whale species are available to the public on NOAA’s Passive Acoustic Cetacean Map website https://apps-nefsc.fisheries.noaa.gov/ pacm/#/narw. Given the open access to the resources described above, NMFS does not concur that public access to quarterly PSO reports is warranted and we have not included this measure in the authorization. Determinations The survey activities proposed by ;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 authorized take is equal to that authorized in the initial IHA. The mitigation measures and monitoring and reporting requirements, as described above, are identical to the initial IHA. The potential effect of ;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 determined that ;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 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 Orsted’s monitoring report, 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 E:\FR\FM\11MRN1.SGM 11MRN1 Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices 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) ;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. lotter on DSK11XQN23PROD with NOTICES1 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 determined that the issuance of the Renewal IHA qualifies to be categorically excluded from further NEPA review. Endangered Species Act Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the NMFS Greater Atlantic Regional Fisheries Office (GARFO), whenever we propose to authorize take of endangered or threatened species. The NMFS Office of Protected Resources is authorizing 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 VerDate Sep<11>2014 17:10 Mar 10, 2022 Jkt 256001 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 a Letter of Concurrence on September 24, 2020 concluding that the initial IHA issuance fell under the scope of the 2013 Biological Opinion and that the initial IHA issuance was not likely to adversely affect ESA-listed marine mammal species. 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 consultation and determinations for the initial IHA remains valid. 13983 Notice; receipt of application for letter of authorization; request for comments and information. ACTION: National Oceanic and Atmospheric Administration NMFS has received a request from the California Department of Fish and Wildlife (CDFW), on behalf of the Interagency Ecological Program (IEP), for authorization to take marine mammals incidental to conducting fisheries and ecosystem monitoring and research activities within the San Francisco Bay-Delta Estuary, CA, over the course of five years. Pursuant to regulations implementing the Marine Mammal Protection Act (MMPA), NMFS is announcing receipt of CDFW’s request for the development and implementation of regulations governing the incidental taking of marine mammals. NMFS invites the public to provide information, suggestions, and comments on CDFW’s application and request. DATES: Comments and information must be received no later than April 11, 2022. ADDRESSES: Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service and should be sent to ITP.Laws@noaa.gov. 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 received electronically, including all attachments, must not exceed a 25megabyte file size. All comments received are a part of the public record and will generally be posted online at www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-constructionactivities 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: Ben Laws, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: [RTID 0648–XB879] Availability Renewal NMFS has issued a Renewal IHA to ;rsted for the take of 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, effective from the date of issuance through September 24, 2022. Dated: March 7, 2022. Kimberly Damon-Randall, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2022–05102 Filed 3–10–22; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Fisheries and Ecosystem Monitoring and Research Activities National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. AGENCY: PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 SUMMARY: Electronic copies of CDFW’s application and separate monitoring plan may be obtained online at: www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake-authorizations-research-and-otheractivities. In case of problems accessing these documents, please call the contact listed above. E:\FR\FM\11MRN1.SGM 11MRN1

Agencies

[Federal Register Volume 87, Number 48 (Friday, March 11, 2022)]
[Notices]
[Pages 13975-13983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05102]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB797]


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; issuance of Renewal incidental harassment authorization 
(IHA).

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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 a Renewal incidental harassment authorization 
(IHA) to [Oslash]rsted to incidentally harass marine mammals incidental 
to marine site characterization surveys offshore from New York to 
Massachusetts.

DATES: This Renewal IHA is valid from the date of issuance through 
September 24, 2022.

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 Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are proposed or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods 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 IHA 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 
Detailed Description of Specified Activities section of the initial IHA 
issuance notice is planned or (2) the activities as described in the 
Detailed Description of Specified Activities section of the initial IHA 
issuance notice would not be completed by the time the initial IHA 
expires and a renewal would allow for completion of the activities 
beyond that described in the DATES section of the initial IHA issuance, 
provided all of the following conditions are met:
    (1) A request for renewal is received no later than 60 days prior 
to the needed Renewal IHA effective date (recognizing that the Renewal 
IHA expiration date cannot extend beyond one year from expiration of 
the initial IHA).
    (2) The request for renewal must include the following:
     An explanation that the activities to be conducted under 
the requested Renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     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

[[Page 13976]]

Renewal IHA. A description of the renewal process may be found on our 
website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

    On 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 export cable routes 
(ECRs) to landfall locations from New York to Massachusetts (85 FR 
63508, October 8, 2020), effective from September 25, 2020 through 
September 24, 2021. Work under the initial IHA was completed, and on 
July 8, 2021, NMFS received an application for the renewal of that 
initial IHA to cover a second year of identical work. [Oslash]rsted 
later communicated that marine site characterization surveys under the 
Renewal IHA would not begin until 2022. As described in the application 
for renewal, 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. The notice of the proposed Renewal IHA was 
published on January 6, 2022 (87 FR 756).

Description of the Specified Activities and Anticipated Impacts

    [Oslash]rsted plans 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 
assessment, 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 from June 1 
through December 31, 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 will 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 no later than September 24, 2022, 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 identical 
to that authorized in the initial IHA. All active acoustic sources, 
mitigation, and monitoring measures are exactly as described in the 
Federal Register notices 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 planned 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 
plans to conduct under this renewal will be 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.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized, 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 alters 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 species: 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 percent CI 356-378) individuals (Hayes et al., 2021).

[[Page 13977]]

    NMFS has determined that neither the updated abundance 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 
authorized may be found in the Federal Register notices of the proposed 
(85 FR 48179; August 10, 2020) and final (85 FR 63508, October 8, 2020; 
85 FR 71058, November 6, 2020) initial IHAs. NMFS has reviewed the most 
recent information relevant to this 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 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 final (85 FR 63508; October 
8, 2020) IHAs for the initial authorization. Specifically, the acoustic 
source types, source levels, and days of operation applicable to this 
authorization remain unchanged from the previously issued initial IHA. 
Similarly, the methodology for calculating take, and thus 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, as do 
the number of takes for each species or stock, which are indicated 
below in Table 2.

                                 Table 2--Authorized Take by Level B Harassment
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Species                                                                Abundance      Authorized         Percent
                                                                    estimate \1\            take      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).

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the initial IHA 
(85 FR 63508, October 8, 2020), and the discussion of the least 
practicable adverse impact included in that document and the notice of 
the proposed Renewal IHA remains applicable. All mitigation, 
monitoring, and reporting measures in the initial IHA are carried over 
to this Renewal IHA and summarized below:
     Ramp-up: A ramp-up procedure must 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 must be on duty and conducting visual observations at all 
times during daylight hours (i.e., from 30 minutes prior to sunrise 
through 30 minutes following sunset), and two active duty PSOs must 
conduct observations 30 minutes prior to and during nighttime ramp-ups 
and operation of HRG equipment.
     Exclusion Zones (EZ): Marine mammal EZs must 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 must 
implement a 30-minute pre-start clearance period of the specified 
clearance zones (CZs; 500 m for North Atlantic right whales, 100 m for 
all other marine mammals) 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 CZs must be monitored 
by PSOs using the appropriate visual technology. Ramp-up must not be 
initiated if any marine mammal(s) is within its respective CZ. If a 
marine mammal is observed within its respective CZ during the pre-start 
clearance period, ramp-up must not begin until the animal(s) has been 
observed exiting its respective CZ, 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, will be required when using 
only non-impulsive, non-parametric sub-bottom profilers (e.g., Chirps), 
except in the case that a North Atlantic

[[Page 13978]]

right whale is observed within the 500-m CZ.
     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 is 
required. Note that this shutdown requirement is 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 has been met, approaches or 
is observed within the Level B harassment zone (54 m, non-impulsive; 
141 m impulsive), shutdown must occur.
     Vessel strike avoidance measures: Vessel strike avoidance 
measures include, but are not limited to, vessel 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 must limit 
to three the number of survey vessels that 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 must 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. This seasonal 
restriction will help to reduce both the number and intensity of North 
Atlantic right whale takes by Level B harassment.
     Reporting: [Oslash]rsted must 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 must 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 must 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 must 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

    A notice of NMFS' proposal to issue a Renewal IHA to [Oslash]rsted 
was published in the Federal Register on January 6, 2022 (87 FR 756). 
That notice either described, or referenced descriptions of, 
[Oslash]rsted's activity, the marine mammal species that may be 
affected by the activity, anticipated effects on marine mammals and 
their habitat, estimated amount and manner of take, and proposed 
mitigation, monitoring and reporting measures. NMFS received comments 
from a group of environmental non-governmental organizations (ENGOs) 
including the Natural Resources Defense Council, Conservation Law 
Foundation, Defenders of Wildlife, Whale and Dolphin Conservation, 
National Wildlife Federation, NY4WHALES, and the Southern Environmental 
Law Center. However, the comments consisted of a short cover letter 
with a subject line and comments referring to the issuance of an IHA 
for the construction of a different project (87 FR 806; January 6, 
2022), and an attached set of previously submitted recommendations 
related to right whale mitigation for the site assessment and 
characterization phases and construction phases of offshore wind 
development more generally. That other project occupies a small portion 
of [Oslash]rsted's survey area for this Renewal IHA, and the relevant 
issued IHA would be effective during a different time from when this 
Renewal IHA would be effective. NMFS thus did not receive any comments 
relevant to the issuance of this Renewal IHA. Nevertheless, given the 
more general nature of some of the issues raised in the ENGOs' appended 
recommendations, NMFS reviewed the comments. To the extent that some of 
the issues may be relevant to this Renewal IHA, the pertinent comments 
and our responses are summarized below.
    Comment 1: The 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 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

[[Page 13979]]

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; 85 FR 53342, August 28, 2020; 86 FR 33664, 
June 25, 2021; 87 FR 806, January 6, 2022), 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).
    Comment 2: The ENGOs recommended that NMFS should require all 
project vessels to adhere to a 10-knot (18.5 km/hr) speed restriction 
at all times, and in all places except in limited circumstances where 
the best available scientific information demonstrates that whales do 
not occur in the area. As a mechanism for modifying this speed 
restriction, the ENGOs suggest that the project proponent develop and 
implement, in consultation with NMFS, an Adaptive Plan that is 
scientifically proven to be equally or more effective than a 10-knot 
(18.5 km/hr) speed restriction.
    Response: [Oslash]rsted communicated to NMFS that marine site 
characterization vessels (both survey and supporting) travel at 10 
knots or less while in transit and during the surveys. During active 
surveying, speeds are generally significantly less (in the range of 3-5 
knots) although this is dependent on the type of equipment and survey.
    NMFS has analyzed the potential for ship strike resulting from 
[Oslash]rsted's activity and has determined that the mitigation 
measures specific to ship strike avoidance are sufficient to avoid the 
potential for ship strike. These include, but are not limited to the 
survey vessel crew members responsible for navigation duties must 
receive site-specific training on marine mammal sighting/reporting and 
vessel strike avoidance measures; the vessel operator and crew must 
maintain a vigilant watch for all large whale species (including the 
North Atlantic right whale); a requirement that all vessel operators 
comply with the 10 knot (18.5 km/hour) or less speed restriction while 
underway in any established Seasonal Management Areas (SMAs), or 
Dynamic Management Areas (DMAs); a requirement that all vessel 
operators reduce vessel speed to 10 knots (18.5 km/hour) or less when 
any large whale, 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 
at least 500 m from any sighted North Atlantic right whale; a 
requirement that, if underway, vessels must steer a course away from 
any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less 
until the 500-m minimum separation distance has been established; a 
requirement that all vessels must maintain a minimum separation 
distance of 100 m from sperm whales and other baleen whales; and a 
requirement that 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). We have 
determined the existing ship strike avoidance measures are sufficient 
to ensure the least practicable adverse impact on species or stocks and 
their habitat. Further, NMFS is not aware of a wind industry vessel 
(e.g., marine site characterization survey vessel or wind energy 
vessels used in European wind project construction and operation) 
reporting a ship strike to date.
    Regarding the ENGOs' suggestion that project proponents should 
coordinate with NMFS to develop an Adaptive Plan for potential 
modification of vessel speed restrictions for future projects, NMFS 
will consider specific proposals for the development, quantitative 
evaluation, and implementation of such a Plan, should that information 
become available in the future.
    Comment 3: The ENGOs recommend that NMFS prohibit site 
characterization surveys during times of highest risk to North Atlantic 
right whales, which they define as times of highest relative density of 
animals during foraging and migration, and times when mother-calf 
pairs, pregnant females, surface active groups, or aggregations of 
three or more whales are, or, are expected to be, present. The ENGOs 
suggest that these time periods should be defined based on the best 
available scientific information at the time of the survey activity. 
Finally, the ENGOs suggest that the development and scientific 
validation of a near real-time monitoring system and mitigation 
protocol for North Atlantic right whales and other large whale species 
could be used to dynamically manage the timing of site assessment and 
characterization activities to ensure that those activities are 
undertaken during times of lowest risk for all relevant larges whales 
species.
    Response: NMFS is requiring [Oslash]rsted to operate no more than 
three concurrent survey vessels, with HRG survey equipment operating at 
or below 180 kHz, from January 1 through May 31 within the Lease Areas 
and ECRs, not including coastal and bay waters. This seasonal 
restriction aligns with the timeframe during which North Atlantic right 
whale densities are highest in the project area, based on Roberts 
(2020) and Robert et al. (2021), which incorporated more recent survey 
data (through 2018) and that for the first time included data from the 
2011-2015 surveys of the MA and RI/MA wind energy areas (WEAs; Kraus et 
al. 2016) as well as the 2017-2018 continuation of those surveys, known 
as the Marine Mammal Surveys of the Wind Energy Areas (MMS-WEA) 
(Quintana et al., 2018). We believe these models provide the best 
available scientific information to quantify temporal and spatial 
patterns of North Atlantic right whale occurrence in the project area. 
The seasonal restriction will limit the number and intensity of 
potential take by Level B harassment resulting from exposure to active 
HRG equipment (i.e., boomers, sparkers, and Chirps). NMFS is also 
requiring [Oslash]rsted to comply with vessel speed restrictions 
associated with SMAs, and DMAs if any are established near the project 
area. Prior to and during survey operations, [Oslash]rsted must consult 
the NOAA Right Whale Sightings Advisory System and WhaleMap for 
situational awareness of recent sighting locations. Should North 
Atlantic right whales be observed while HRG survey equipment is active, 
[Oslash]rsted must abide by a mandatory 500-m shutdown zone, which is 
more than three times as large as the greatest distance to the Level B 
harassment isopleth (141 m). Finally, the ship strike avoidance and 
minimum separation requirements described in response to Comment 2 
further

[[Page 13980]]

minimize the potential impacts of site characterization surveys on 
North Atlantic rights whales.
    The ENGOs suggested that a real-time monitoring system and 
mitigation protocol for North Atlantic right whales would be useful to 
dynamically manage the timing of site characterization survey 
activities, although it is not clear if the suggested system and 
protocol is based on acoustic or visual monitoring, or both. 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 that 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.
    The type of dynamic monitoring system and mitigation protocol 
suggested by the commenters has not been proposed by any applicant, 
including [Oslash]rsted, when applying for an IHA to conduct the type 
of work analyzed here. As discussed above, the seasonal restriction 
(January 1 through May 31) already serves to reduce temporal and 
spatial overlap between [Oslash]rsted's marine site characterization 
surveys and times during which North Atlantic right whale occurrence is 
expected to be highest in the project area. In addition, NMFS cannot 
require project proponents to be part of a monitoring network such as 
the one described above until such a network of monitoring devices is 
available. However, NMFS will consider how to best incorporate the use 
of such systems in the future should such a network be developed.
    Comment 4: The ENGOs recommended that site characterization surveys 
should not be initiated within 1.5 hours of civil sunset or in times of 
low visibility when the visual clearance zone and exclusion zone cannot 
be visually monitored, as determined by the lead PSO.
    Response: NMFS acknowledges the limitations inherent in detection 
of marine mammals at night. However, no injury is expected to result 
from exposure to HRG equipment, 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., <54 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. 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 
[Oslash]rsted 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 over the course of the surveys. In fact, the 
restrictions recommended by the commenters could result in the surveys 
spending increased total time on the water introducing noise into the 
marine environment, 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 5: The ENGOs recommended that NMFS should require project 
proponents to implement visual clearance and exclusion zones of at 
least 500 m for all large whale species, except North Atlantic right 
whales, for which they recommended 1,000-m visual and acoustic 
clearance and exclusion zones. To the monitor the acoustic zones, the 
ENGOs recommend utilizing near real-time passive acoustic monitoring 
(PAM) from a vessel other than the dedicated survey vessel, or from a 
stationary unit.
    Response: NMFS disagrees with these recommendations for this 
Renewal IHA. Regarding the clearance and shutdown zone recommendations, 
we note that the 500-m exclusion zone for North Atlantic right whales 
exceeds the modeled distance to the Level B harassment isopleth (141 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 zone 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., <36.5 m for 
all impulsive sources).
    There are several reasons why we do not agree that use of PAM is 
warranted

[[Page 13981]]

for [Oslash]rsted's 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 for 
[Oslash]rsted's HRG survey activities is limited. We note first using a 
towed passive acoustic sensor(s) to detect baleen whales (including 
North Atlantic right whales) is not ideal for monitoring low-frequency 
vocalizing baleen whales because calls are masked by ship and flow 
noise, and vessel presence can alter vocal behavior of the study 
animals (Lesage et al., 1999; Thode, 2004; Norris et al., 2012; Guerra 
et al., 2014; Heinemann et al., 2016).
    Vessels produce low-frequency noise, primarily through propeller 
cavitation, with the main energy in the 5-300 Hertz (Hz) frequency 
range. Source levels range from approximately 140 to 195 decibels (dB) 
re 1 micropascal ([micro]Pa) at 1 m (NRC, 2003; Hildebrand, 2009), 
depending on factors such as ship type, load, and speed, and ship hull 
and propeller design. Studies of vessel noise show that it appears to 
increase background noise levels in the 71-224 Hz range by 10-13 dB 
(Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM 
systems employ hydrophones towed in streamer cables approximately 500 m 
behind a vessel. Noise from water flow around the cables and from 
strumming of the cables themselves is also low frequency and typically 
masks signals in the same range (i.e., most baleen whale 
vocalizations). Whales are routinely detected acoustically using moored 
systems and sonobuoys, or using autonomous gliders. However, these 
platforms are all quiet. Providers of observer services, including PAM, 
report that they have never detected a baleen whale (other than rare 
detections of humpback whales, which have significantly higher 
frequency content in their calls) using towed PAM.
    Even if a right whale could be detected using towed PAM, the area 
expected to be ensonified above the Level B harassment threshold is 
relatively small (<=141 m) and, 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, supporting 
the limited value of PAM for use in reducing take with smaller zones. 
In addition, if a PAM system was deployed from a secondary vessel, that 
vessel will still have to travel at 4 knots to accompany the survey 
vessel, leading to the same limitations when using towed PAM. Finally, 
if a stationary PAM unit were deployed (assuming its location is within 
relatively close proximity to the starting position of the survey 
vessel), the unit would have to be equipped to localize North Atlantic 
right whale calls, for example, to positions within the clearance and 
exclusion zones (regardless of size) relative to the changing position 
of a transiting survey vessel. Even if localization is possible, it 
becomes impracticable once the vessel moves out of the detection and 
localization range of the stationary unit.
    Many of the ENGO recommendations included acoustic monitoring of 
clearance and exclusion zones. Given that the effects to marine mammals 
from the types of surveys authorized in this IHA are expected to be 
limited to a small amount of low-level behavioral harassment, even in 
the absence of mitigation, the additional benefit anticipated for North 
Atlantic right whales by adding this detection method would be 
essentially non-existent. Given the lack of efficacy, the logistical 
challenges, and the cost 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. For the reasons described 
above, NMFS' responses to additional comments do not include references 
to acoustic monitoring during site characterization surveys. Please see 
the ENGOs' full comment letter for information regarding their general 
recommendations for acoustic monitoring, which can be found here: 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-site-characterization.
    Comment 6: The ENGOs recommended that NMFS should require project 
proponents to (1) conduct visual monitoring of the clearance zone 
beginning 30 minutes prior to commencement or re-initiation of, and 
continuing throughout, survey activities, (2) delay survey activities 
if a North Atlantic right whale, or other large whale species, is 
detected within the relevant clearance zone, (3) shutdown survey 
activities upon a visual detection of any of these species within the 
species-specific exclusion zone and, if shutdown occurs, (4) resume or 
initiate survey activities only after the lead PSO confirms that no 
North Atlantic right whales or other large whale species have been 
visually detected in the relevant clearance zones for 30 minutes.
    The ENGOs suggested that these measures should be implemented 
during site characterization activities with noise levels that could 
result in injury or harassment to large whales.
    Response: No injury is expected to result from site 
characterization surveys, 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., <36.5 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. Only take by Level B harassment is anticipated and 
authorized.
    NMFS does agree that monitoring of a clearance zone should begin 30 
minutes prior to commencement or resumption of use of HRG survey 
equipment that may incidentally harass marine mammals following a delay 
or shutdown. NMFS also agrees that visual detection of a species 
(including North Atlantic right whales) within its respective clearance 
zone during the 30-minute clearance period or exclusion zone when 
acoustic sources are active should trigger a delay or shutdown, 
respectively, of survey activities. Finally, as suggested by the ENGOs, 
in order for survey activities to commence or resume, the lead PSO must 
confirm that no North Atlantic right whale or other baleen whale has 
been sighted in the clearance zone during the clearance period. Thus, 
these measures are required by all authorizations for take incidental 
to site characterization activities.
    Comment 7: The ENGOs stated that it is their general view that NMFS 
must require a minimum of four PSOs on survey vessels following a two-
on, two-off rotation, each responsible for scanning no more than 
180[deg] of the horizon.
    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 exclusion zone for North Atlantic right whales, which is more 
than three times the maximum 141-m Level B harassment zone) will be 
successful in detecting marine mammals that are available for 
observation at the surface. Further, [Oslash]rsted is required to 
deploy two PSOs for nighttime survey activities, during which the PSOs 
will have access to night vision devices.
    The monitoring report for the initial IHA, as well as monitoring 
reports for

[[Page 13982]]

similar marine site assessment and characterization surveys (which can 
be found here https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable), 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 initial IHA and this 
Renewal 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 Renewal 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 exclusion zones. 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 8: The ENGOs recommended that NMFS should require operation 
of sub-bottom profiling systems at the lowest practicable source level 
for the survey objectives.
    Response: [Oslash]rsted has selected the equipment necessary to 
achieve their objectives. We have evaluated the effects expected as a 
result of use of this equipment, made the necessary findings, and 
imposed mitigation requirements sufficient to achieve the least 
practicable adverse impact on the affected species and stocks of marine 
mammals. It is not within NMFS' purview to make judgments regarding 
what constitutes the ``lowest practicable source level'' for an 
operator's survey objectives.
    Comment 9: The ENGOs recommended that (1) NMFS require project 
proponents to report observation(s) of a North Atlantic right whale(s) 
to NMFS or the USCG as soon as possible, but no later than the end of 
the PSO shift during which the observation(s) occurred, and (2) 
[Oslash]rsted should be required to immediately report an entangled or 
dead North Atlantic right whale or other large whale species to NMFS 
OPR, NOAA Fisheries Marine Mammal and Sea Turtle Stranding and 
Entanglement Hotline (866-755-6622; also the North Atlantic Right Whale 
Sighting Advisory System), or the USCG via available reporting systems 
(e.g., phone, app, radio). In addition, the ENGOs encourage project 
proponents to commit to supporting and participating in future 
advancing/streamlining efforts for methods of reporting. Finally, the 
ENGOs suggest that quarterly reports of PSO sightings data should be 
made publicly available to inform marine mammal science and protection.
    Response: NMFS agrees with the ENGOs' first and second 
recommendations, hence the inclusion of these measures in both the 
initial and Renewal IHAs. Regarding reporting methods, NMFS agrees with 
the ENGOs and supports efforts to improve methods by which a sighting 
of a live North Atlantic right whale, or entangled or dead North 
Atlantic right whale (or other large whale), is reported by a project 
proponent and we welcome specific proposals to do so. Finally, NMFS 
does not concur with the suggestion that [Oslash]rsted should submit 
quarterly PSO sightings data reports, and that these reports be made 
publicly available. [Oslash]rsted is required to submit a final report 
to NMFS within 90 days after completion of survey activities or 
expiration of this IHA, whichever comes sooner. The report must fully 
document the methods and monitoring protocols, summarize the data 
recorded during monitoring, and describe, assess, and compare the 
effectiveness of monitoring and mitigation measures. The ENGOs did not 
provide specific examples regarding how making PSO sightings data 
publicly available on a quarterly basis would inform marine mammal 
science and protection in any meaningful way on this timescale. PSO 
sightings data (as well as all of the additional information required 
in a final report) are included in PSO monitoring reports from previous 
marine site characterization surveys, including the PSO monitoring 
report from the initial IHA that NMFS is renewing, which can be found 
here: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. As 
noted above, [Oslash]rsted is already required to immediately report 
all North Atlantic right whale sightings to the NMFS North Atlantic 
Right Whale Sighting Advisory System (866) 755-6622) and to the U.S. 
Coast Guard via channel 16, providing mariners in the area with 
awareness of North Atlantic right whale locations and, thus, the 
opportunity to proactively reduce vessel speeds. In addition, daily 
visual and acoustic detections of North Atlantic right whales and other 
large whale species along the Eastern Seaboard, as well as Slow Zone 
locations, are publicly available on WhaleMap (https://whalemap.org/WhaleMap/). Further, recent acoustic detections of North Atlantic right 
whales and other large whale species are available to the public on 
NOAA's Passive Acoustic Cetacean Map website https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw. Given the open access to the 
resources described above, NMFS does not concur that public access to 
quarterly PSO reports is warranted and we have not included this 
measure in the authorization.

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 authorized take is equal to 
that authorized in the initial IHA. The 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 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 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 Orsted's monitoring report, 
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

[[Page 13983]]

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.

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 determined 
that the issuance of the Renewal IHA qualifies to be categorically 
excluded from further NEPA review.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take of endangered or threatened species.
    The NMFS Office of Protected Resources is authorizing 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 
a Letter of Concurrence on September 24, 2020 concluding that the 
initial IHA issuance fell under the scope of the 2013 Biological 
Opinion and that the initial IHA issuance was not likely to adversely 
affect ESA-listed marine mammal species. 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 
consultation and determinations for the initial IHA remains valid.

Renewal

    NMFS has issued a Renewal IHA to [Oslash]rsted for the take of 
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, effective from the date of 
issuance through September 24, 2022.

    Dated: March 7, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-05102 Filed 3-10-22; 8:45 am]
BILLING CODE 3510-22-P