Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the Area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Areas OCS-A 0486, 0487, and 0500, 69159-69170 [2023-22120]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 192 (Thursday, October 5, 2023)]
[Notices]
[Pages 69159-69170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22120]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD419]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys in the Area of Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf Lease Areas 
OCS-A 0486, 0487, and 0500

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

ACTION: Notice; issuance of Renewal incidental harassment 
authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Orsted Wind Power North America LLC (Orsted) for the renewal of their 
2022 incidental harassment authorization (IHA) (hereinafter, the 2022 
IHA is referred to as the ``initial IHA'' and the 2023 IHA is referred 
to as the ``Renewal IHA'') to take marine mammals incidental to marine 
site characterization surveys, using high-resolution geophysical (HRG) 
equipment, in coastal waters from New York to Massachusetts, including 
the Bureau of Ocean Energy Management (BOEM) Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS) Lease Areas OCS-A 0486, 0487, 0500 and along 
potential export cable routes (ECR).

DATES: This Renewal IHA is valid October 6, 2023 to October 5, 2024.

ADDRESSES: Electronic copies of the original application, Renewal IHA 
request, and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
initial 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 below.

FOR FURTHER INFORMATION CONTACT: Karolyn Lock, Office of Protected 
Resources, NMFS, (301) 427-8401.

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 promulgated or, if the taking is limited to 
harassment, an incidental harassment authorization is issued.
    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). 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''). NMFS must also prescribe requirements pertaining to 
monitoring and reporting of such takings. The definitions of key terms 
such as ``take,'' ``harassment,'' and ``negligible impact'' can be 
found in the MMPA and NMFS implementing regulations (see 16 U.S.C. 
1362; 50 CFR 216.3; 50 CFR 216.103).
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial IHA, NMFS described the circumstances under which we 
would consider issuing a renewal for this activity, and requested 
public comment on a potential renewal under those circumstances. 
Specifically, on a case-by-case basis, NMFS may issue a 1-time 1-year 
renewal of an 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 
Description of the Specified Activities and Anticipated Impacts section 
of the initial IHA issuance notice would not be completed by the time 
the initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed renewal of the initial IHA effective date (recognizing that 
the renewal's expiration date cannot extend beyond 1 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 are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take); 
and
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature

[[Page 69160]]

not previously analyzed or authorized; and
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

Summary of Request

    On October 6, 2022, NMFS issued an IHA to Orsted to take small 
numbers of marine mammals incidental to marine site characterization 
surveys in Federal and state waters located in Lease Areas OCS-A 0486, 
0487, 0500 off the coasts from New York to Massachusetts and along 
potential ECRs to landfall locations between Raritan Bay (part of the 
New York Bight) and Falmouth, Massachusetts. On May 26, 2023, NMFS 
received a request for a renewal of that initial IHA because Orsted's 
marine site characterization surveys under the initial IHA had not yet 
occurred and more time is required. As described in the application for 
the Renewal IHA, the activities for which incidental take is requested 
are identical to those covered by the initial IHA. However, Orsted 
decreased the number of survey days from 400 to 390 based on the 
assumption that subsidiaries of Orsted will have separate incidental 
take authorizations for marine site characterization surveys in Lease 
Areas OCS-A 0486 (Revolution Wind; 88 FR 8996, February 10, 2023) and 
OCS-A 0487 (Sunrise Wind; 87 FR 79072, January 19, 2023) during the 
effective period of the Renewal IHA. NMFS has authorize incidental take 
through this Renewal IHA assuming 400 survey days will be necessary as 
NMFS has not promulgated final rules for Revolution Wind and Sunrise 
Wind. The notice of the proposed Renewal IHA was published on September 
11, 2023 (88 FR 62337).
    As no work has commenced under the initial IHA, Orsted cannot 
provide a preliminary monitoring report. However, if work occurs before 
the effective date of the proposed Renewal IHA, a preliminary 
monitoring report would be required and be made available on NMFS' 
website (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable) and would detail any implemented mitigation and 
monitoring and show that no impacts of a scale or nature not previously 
analyzed or authorized have occurred as a result of the activities 
conducted. Orsted has complied with all the requirements (e.g., 
mitigation, monitoring, and reporting) of the previous IHAs in Lease 
Areas OCS-A 0486, 0487, and 0500 (84 FR 52464, October 2, 2019; 85 FR 
63508, October 8, 2020; 87 FR 13975, March 11, 2022).
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered North 
Atlantic right whales from vessel collisions, which are a leading cause 
of the species' decline and a primary factor in an ongoing Unusual 
Mortality Event (87 FR 46921). Should a final vessel speed rule be 
issued and become effective during the effective period of this 
proposed Renewal IHA (or any other MMPA incidental take authorization), 
the authorization holder would be required to comply with any and all 
applicable requirements contained within the final rule. Specifically, 
where measures in any final vessel speed rule are more protective or 
restrictive than those in this or any other MMPA authorization, 
authorization holders would be required to comply with the requirements 
of the rule. Alternatively, where measures in this or any other MMPA 
authorization are more restrictive or protective than those in any 
final vessel speed rule, the measures in the MMPA authorization would 
remain in place. These changes would become effective immediately upon 
the effective date of any final vessel speed rule and would not require 
any further action on NMFS's part.

Description of the Specified Activities and Anticipated Impacts

    Orsted plans to conduct marine site characterization surveys, 
specifically HRG surveys, in the Lease Areas OCS-A 0486, 0487, 0500 and 
ECR Area in Federal and state waters from New York to Massachusetts to 
support the characterization of the existing seabed and subsurface 
geological conditions, which is necessary for the development of an 
offshore electric transmission system. The project would use active 
acoustic sources, including some with potential to result in the 
incidental take of marine mammals by Level B harassment.
    This Renewal IHA is identical to the initial IHA and conservatively 
assumes no work will occur for the remainder of the initial IHA.
    The Renewal IHA would authorize incidental take, by Level B 
harassment only (in the form of behavioral disturbance), of 16 species 
or stocks of marine mammals for identical marine site characterization 
survey activities to be completed in 1 year, in the same area, using 
survey methods identical to those described in the initial IHA 
application. Therefore, the anticipated effects on marine mammals and 
the affected stocks also remain the same. The amount of take, by Level 
B harassment, requested for the Renewal IHA is also identical to that 
authorized in the initial IHA. All mitigation, monitoring, and 
reporting measures would remain exactly as described in the Federal 
Register notice of the issued initial IHA (87 FR 61575, October 12, 
2022).

Detailed Description of the Activity

    A detailed description of the marine site characterization survey 
activities for which incidental take is authorized may be found in the 
Federal Register notice of the proposed IHA (87 FR 52515, August 26, 
2022) for the initial authorization. The location and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the previous notices. This Renewal IHA 
is effective from October 6, 2023 through October 5, 2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
Federal Register notice of the proposed IHA for the initial 
authorization (87 FR 52515, August 26, 2022). NMFS has reviewed the 
recently finalized 2022 Stock Assessment Reports (SARs), which included 
updates to stock abundances since the initial IHA was issued, 
information on relevant Unusual Mortality Events, and other scientific 
literature. In August 2023, NMFS released its final 2022 SARs, which 
updated the population estimate (Nbest) of North Atlantic 
right whales from 368 to 338 and annual mortality and serious injury 
increased from 8.1 to 31.2. This large increase in annual serious 
injury/mortality is a result of NMFS including undetected annual 
mortality and serious injury in the total

[[Page 69161]]

annual serious injury/mortality, which had not been previously included 
in the SARs. The population estimate is slightly lower than the North 
Atlantic Right Whale Consortium's 2022 Report Card, which identifies 
the population estimate as 340 individuals (Pettis et al., 2023). NMFS 
has determined that neither this nor any other new information affects 
which species or stocks have the potential to be affected or any other 
pertinent information in the Description of the Marine Mammals in the 
Area of Specified Activities contained in the supporting documents for 
the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the Federal Register notice of the 
proposed IHA for the initial authorization proposed (87 FR 52515, 
August 26, 2022). NMFS has reviewed information on relevant Unusual 
Mortality Events, the 2022 SARs, and other scientific literature and 
data, and preliminarily determined that there is no new information 
that affects our initial analysis of impacts on marine mammals and 
their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed (87 FR 52515, August 26, 2022) and issued (87 FR 61575, 
October 12, 2022) IHAs for the initial authorization. Specifically, the 
acoustic sources and levels, survey days, and marine mammal density 
applicable to this authorization remain unchanged from the initial IHA. 
Similarly, the stocks taken, methods of take and type of take (i.e., 
Level B harassment in the form of behavioral disturbance) remain 
unchanged from the initial IHA.
    As was done in the initial IHA, Orsted requested a deviation from 
the calculated take for some species given to account for group size or 
observations during surveys in the surrounding area. Other than in the 
instances described below, Orsted's requested take matches their 
initial IHA. Orsted's Renewal IHA request references new data sources 
to inform group sizes for humpback whale (collected under the Northeast 
Projects IHA (87 FR 13975, March 11, 2022)), minke whale (Kenney and 
Vigness-Raposa, 2010); and Risso's dolphin (Barkaszi and Kelly, 2019). 
When these group size data were considered, the takes requested by 
Orsted for these species in their application were equal to or less 
than that authorized under the initial IHA. However, NMFS proposes to 
authorize the same number of incidental takes for all species as the 
initial IHA as the activities are identical and NMFS considers the data 
sources used in the initial IHA the best scientific information 
available.
    During consideration of the Renewal IHA request, a typographical 
error in the proposed and notice of issuance Federal Register 
publications was identified that stated 17 pilot whales were authorized 
for take when 52 were requested and authorized within the IHA (as 
stated in the initial IHA application and issued IHA). The number of 
takes included in the Renewal IHA application and within this proposed 
Renewal IHA is 52, which equates to 0.13 percent of the population 
abundance. Lastly, the stock abundance amounts used for the initial IHA 
were from the 2021 SARs (Hayes et al., 2022), the most recent available 
at the time of publication; the abundance amounts used for this 
proposed Renewal IHA are the final 2022 SARs (Hayes et al., 2023).

          Table 1--Initial IHA Take Authorized and Renewal IHA Proposed Take by Level B Harassment \1\
----------------------------------------------------------------------------------------------------------------
                                                       Take          Requested    NMFS  proposed    Percent of
             Species                Population      authorized     proposed take   take  renewal  population for
                                   abundance \2\    initial IHA     renewal IHA       IHA \3\       renewal IHA
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale \4\..             338              17              16              17            5.03
Humpback whale..................           1,396              34              19              34            2.44
Fin whale.......................           6,802              14              14              14            0.21
Sei whale.......................           6,292               3               3               3            0.05
Minke whale.....................          21,968              13               9              13            0.06
Sperm whale.....................           4,349               2               2               2            0.05
Long-finned Pilot whale \5\.....          39,215              52              52              52            0.13
Bottlenose dolphin \6\..........          62,851             139             139             139            0.22
Common Dolphin..................         172,974           6,000           6,000           6,000            3.47
Atlantic white-sided dolphin....          93,233             210             206             210            0.23
Atlantic spotted dolphin........          39,921              29              29              29            0.07
Risso's dolphin.................          35,215              30              30              30            0.09
Striped dolphin.................          67,036              20              20              20            0.03
Harbor porpoise.................          95,543             287             279             287            0.30
Gray seal.......................          27,300             118             116             118            0.43
Harbor seal.....................          61,336             118             116             118           <0.01
----------------------------------------------------------------------------------------------------------------
\1\ No take by Level A harassment is anticipated nor proposed to be authorized.
\2\ Final 2022 SARs (Hayes et al., 2023). At the time of the issuance of the initial IHA, the 2021 SARs were
  used as the best available science. This table utilizes the 2022 SARs abundance numbers. The only species
  where the abundance number changed between the initial IHA and this proposed renewal was the North Atlantic
  right whale.
\3\ While Orsted adjusted their requested take numbers for some species based on 10 less survey days or by
  utilizing a different data source, NMFS proposes to authorize the same amount of take as the initial IHA; as
  previously described.
\4\ The SARs stock abundance number at the time of issuance for the initial IHA was 368. The percent of
  population affected under the initial IHA was 4.62 percent. While the total number of proposed takes remains
  the same between the initial IHA and this proposed renewal, due to the decrease in the population abundance to
  338 (2022 SARs), the percent of the population affected would increase slightly to 5.03 percent.
\5\ While the original Federal Register publications for the initial IHA contained a typo of 17 takes by Level B
  harassment instead of the 52 requested and eventually authorized, the percent abundance affected provided in
  those publications was correct (0.13 percent) as that value had been correctly calculated using 52. Therefore,
  as the population abundance remains unchanged from the initial IHA, the correction in this proposed renewal
  notice of 17 to 52 does not change the percent of the population proposed to be affected (0.13 percent).
\6\ Western North Atlantic, Offshore stock.


[[Page 69162]]

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 
(87 FR 61575, October 12, 2022), and the discussion of the least 
practicable adverse impact determination included in that document 
remains applicable and accurate. All mitigation, monitoring, and 
reporting measures in the initial IHA are identical in the Renewal IHA 
and summarized below.
     Ramp-Up: A ramp-up procedure would be used for geophysical 
survey equipment capable of adjusting energy levels at the start or re-
start of survey activities;
     Protected Species Observers: A minimum of one NMFS-
approved Protected Species Observer (PSO) must be on duty and 
conducting visual observations at all times during daylight hours 
(i.e., from 30 minutes prior to sunrise through 30 minutes following 
sunset). Two PSOs will be on watch during nighttime operations;
     Pre-Operation Clearance Protocols: Prior to initiating HRG 
survey activities, Orsted would implement a 30-minute pre-operation 
clearance period. If any marine mammals are detected within the 
Exclusion Zones prior to or during ramp-up, the HRG equipment would be 
shut down (as described below);
     Shutdown Zones: If an HRG source is active and a marine 
mammal is observed within or entering a relevant shutdown zone, an 
immediate shutdown of the HRG survey equipment would be required. Note 
this shutdown requirement would be waived for certain genera of small 
delphinids and pinnipeds;
     Vessel Strike Avoidance Measures: Separation distances for 
large whales (500 meter (m) North Atlantic right whales and other ESA-
listed marine mammals; 100 m for all other non-ESA listed baleen 
whales; 50 m all other marine mammals); restricted vessel speeds and 
operational maneuvers; and
     Reporting: Orsted will submit a marine mammal report 
within 90 days following completion of the surveys.

Comments and Responses

    A notice of NMFS' proposal to issue a Renewal IHA to Orsted was 
published in the Federal Register on September 11, 2023 (88 FR 62337). 
That notice either described or referenced descriptions of Orsted's 
activity, the marine mammal species that may be affected by the 
activity, the anticipated effects on marine mammals and their habitat, 
estimated amount and manner of take, and proposed mitigation, 
monitoring and reporting measures. In that notice, we requested public 
input on the request for authorization described therein, our analyses, 
the proposed authorization, and any other aspect of the notice of the 
proposed IHA renewal and requested that interested persons submit 
relevant information, suggestions, and comments. That proposed notice 
was available for a 15-day public comment period.
    NMFS received a total of 17 public comment letters from 13 private 
citizens and 4 non-governmental organizations. The comments and our 
responses are summarized below.
    Most comments received expressed general opposition to issuance of 
the IHA or to the underlying associated activities. We reiterate here 
that NMFS' proposed action concerns only the authorization of marine 
mammal take incidental to the planned surveys--NMFS' authority under 
the MMPA does not extend to the surveys themselves or to wind energy 
development more generally. Many comments received requested that NMFS 
not issue any IHAs related to wind energy development and/or expressed 
opposition for wind energy development generally without providing 
information relevant to NMFS' decision. We do not specifically address 
comments expressing general opposition to activities related to wind 
energy development or respond to comments that are out of scope of the 
proposed Renewal IHA (88 FR 62337, September 11, 2023), such as 
comments on other Federal agency processes and activities not planned 
under this IHA.
    All substantive comments and NMFS' responses are provided below, 
and all comment letters are available online at https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-marine-site-0.
    Please review the comment letters for full details regarding the 
comments and associated rationale.
    Comment 1: NMFS lacked adequate analysis of cumulative impacts 
(i.e., effects) to marine mammals and should conduct an Environmental 
Impact Statement (EIS).
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations require consideration of other unrelated activities and 
their impacts on marine mammal populations. The preamble for NMFS' 
implementing regulations (54 FR 40338, September 29, 1989) states in 
response to comments that the impacts from other past and ongoing 
anthropogenic activities are to be incorporated into the negligible 
impact analysis via their impacts on the baseline. Consistent with that 
direction, NMFS has factored into its negligible impact analysis the 
impacts of other past and ongoing anthropogenic activities via their 
impacts on the baseline (e.g., as reflected in the density, 
distribution and status of the species, population size and growth 
rate, and other relevant stressors). The 1989 final rule for the MMPA 
implementing regulations also addressed public comments regarding 
cumulative effects from future, unrelated activities. There, NMFS 
stated that such effects are not considered in making findings under 
MMPA section 101(a)(5) concerning negligible impact. In this case, this 
Renewal IHA, as well as other IHAs currently in effect or proposed 
within the specified geographic region, are appropriately considered an 
unrelated activity relative to the others. The IHAs are unrelated in 
the sense that they are discrete actions under section 101(a)(5)(D), 
issued to discrete applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations 50 CFR 216.104(a)(1) require 
applicants to include in their request a detailed description of the 
specified activity or class of activities that can be expected to 
result in incidental taking of marine mammals. Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, Orsted was the applicant for the Renewal IHA, and we 
are responding to the specified activity as described in that 
application and making the necessary findings on that basis.
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated (1) that we would consider cumulative 
effects that are reasonably foreseeable when preparing a National 
Environmental Policy Act (NEPA) analysis, and (2) that reasonably 
foreseeable cumulative effects would also be considered under section 7 
of the Endangered Species Act (ESA) for ESA-listed species, as 
appropriate. Accordingly, NMFS has written Environmental Assessments 
(EA) that addressed cumulative impacts related to substantially similar 
activities, in similar locations (e.g., the 2019 Avangrid EA for survey 
activities offshore North Carolina and Virginia; the 2017 Ocean Wind, 
LLC EA for site

[[Page 69163]]

characterization surveys off New Jersey; and the 2018 Deepwater Wind EA 
for survey activities offshore Delaware, Massachusetts, and Rhode 
Island). Cumulative impacts regarding issuance of IHAs for site 
characterization survey activities such as those planned by Orsted have 
been adequately addressed under NEPA in prior environmental analyses 
that support NMFS' determination that this action is appropriately 
categorically excluded from further NEPA analysis. NMFS independently 
evaluated the use of a categorical exclusion (CE) for issuance of 
Orsted's IHA, which included consideration of extraordinary 
circumstances.
    Separately, the cumulative effects of substantially similar 
activities in the northwest Atlantic Ocean have been analyzed in the 
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion 
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New 
York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities 
include those for which NMFS issued previous IHAs (82 FR 31562, July 7, 
2017; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10, 2021), which 
are similar to those planned by Orsted under this current Renewal IHA 
request. This Biological Opinion determined that NMFS' issuance of IHAs 
for site characterization survey activities associated with leasing, 
individually and cumulatively, are not likely to adversely affect 
listed marine mammals. NMFS notes that, while issuance of this IHA is 
covered under a different consultation, this BiOp remains valid.
    Comment 2: NMFS' proposed mitigation measures are beneficial but 
not reliable, ``practical'' but not effective. The mitigation 
measurements are not clearly defined and the monitoring measures are 
insufficient to ensure compliance with the IHA. Lastly, the IHA must 
include requirements to ensure the least practicable impact on marine 
mammal species or stocks and their habitats in and around the project 
site and include the use of effective reactive restrictions that are 
triggered by detection of protected species before or during site 
characterization activities.
    Response: NMFS disagrees that the mitigation and associated 
monitoring measures are insufficient (e.g., not reliable or effective) 
to affect the least practicable adverse impact on the affected species 
and stocks. NMFS notes that the commenters did not provide specific 
recommendations on the measures to address their concerns on 
effectiveness for NMFS to consider. In practice, NMFS agrees that the 
IHA should include conditions for the survey activities that will first 
avoid adverse effects in and around the survey site, where practicable, 
and then minimize the effects that cannot be avoided. NMFS has 
determined that the IHA meets this requirement to effect the least 
practicable adverse impact. All mitigation measures stated in the 
issued IHA, which are the same for the Renewal IHA, are considered 
practicable. NMFS works with each ITA applicant, including Orsted, to 
ensure that project-specific mitigation measures are practicable in 
real-world conditions. NMFS does not agree that additional wording is 
necessary within the IHA to further describe the measure requirements 
and implementation. If NMFS determines during the effective period of 
the IHA that the prescribed measures are likely not or are not 
effecting the least practicable adverse impact on the affected species 
or stocks and their habitat, NMFS may modify, suspend, or revoke the 
IHA.
    As part of the analysis for all marine site characterization survey 
IHAs, including this Renewal IHA, NMFS evaluated the effects expected 
as a result of the specified activity, made the necessary findings, and 
prescribed mitigation requirements sufficient to achieve the least 
practicable adverse impact on the affected species and stocks of marine 
mammals. There are several reactive mitigation measures, such as 
shutdown requirements, described in the Federal Register notice of the 
proposed initial IHA (87 FR 52515, August 26, 2022), and which are 
included in the final Renewal IHA, including the stipulation that 
geophysical survey equipment must be immediately shut down if any 
marine mammal is observed within or entering the relevant exclusion 
zone while geophysical survey equipment is operational. In addition, 
clearance zones are required and a pre-start clearance period must be 
implemented prior to ramp-up of specified HRG equipment. During this 
period, clearance zones will be monitored by the PSOs, using the 
appropriate visual technology. Ramp-up may not be initiated if any 
marine mammal(s) is within its respective clearance zone. If a marine 
mammal is observed within a clearance zone during the pre-start 
clearance period, ramp-up may not begin until the animal(s) has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting. If the acoustic 
source is shut down for reasons other than mitigation (e.g., mechanical 
difficulty) for less than 30 minutes, it may be activated again without 
ramp-up if PSOs have maintained constant observation and no detections 
of any marine mammal have occurred within the respective exclusion 
zones.
    NMFS reviews required reporting by authorization holders, which 
includes data from the independent PSOs and uses the information to 
evaluate the mitigation measure effectiveness and ensure compliance 
with the measures described in the issued IHA. Additionally, the 
mitigation measures included in the Renewal IHA are not unique, and 
data from prior IHAs support the effectiveness of these mitigation 
measures. NMFS finds the level of reporting currently required is 
sufficient for managing the Renewal IHA and monitoring the affected 
stocks of marine mammals.
    Comment 3: NMFS uses complex formulas for estimated take and zone 
of influence (i.e., ensonified area) which are flawed and 
inappropriately applied. The root mean square (RMS) 160 dB threshold is 
outdated.
    Response: NMFS disagrees with the commenter and note the commenter 
did not provide additional scientific information for NMFS to consider. 
NMFS' estimated take analysis is based on the best scientific 
information available. As described in the notice of proposed initial 
IHA, the area of water ensonified ((Distance/day x 2r) + [pi]r\2\) is a 
representation of the maximum extent of the ensonified area around a 
sound source over a 24-hr period. ``r'' is the linear distance from the 
source to the isopleth for the Level B harassment threshold. The 
distance to this threshold was calculated using a simple model of sound 
propagation loss at or above the rms 160 (decibel) dB threshold, which 
accounts for the loss of sound energy over increasing range. NMFS 
acknowledges that the 160-dB rms step-function approach is simplistic 
and that an approach reflecting a more complex probabilistic function 
may more effectively represent the known variation in responses at 
different levels due to differences in the receivers, the context of 
the exposure, and other factors. However, we recognize the potential 
for Level B harassment at exposures to received levels below 160 dB rms 
in addition to the potential that animals exposed to received levels 
above 160 dB rms will not respond in ways constituting behavioral 
harassment. Overall, there is a lack of scientific consensus regarding 
what criteria might be more appropriate. Defining sound levels that 
disrupt

[[Page 69164]]

behavioral patterns is difficult because responses depend on the 
context in which the animal receives the sound, including an animal's 
behavioral mode when it hears sounds (e.g., feeding, resting, or 
migrating), prior experience, and biological factors (e.g., age and 
sex). Other contextual factors, such as signal characteristics, 
distance from the source, and signal to noise ratio, may also help 
determine response to a given received level of sound. Therefore, 
levels at which responses occur are not necessarily consistent and can 
be difficult to predict (Southall et al., 2007, 2019; Ellison et al., 
2012; Bain and Williams, 2006; Gomez et al., 2016). Use of the 160-dB 
threshold allows for a simple quantitative estimate of take while we 
can qualitatively address the variation in responses across different 
received levels in our discussion and analysis.
    NMFS has determined that spherical spreading is the most 
appropriate form of propagation loss for these surveys and has relied 
on this approach for past IHAs with similar equipment, locations, and 
depths. Please refer back to the Garden State HRG IHA (83 FR 14417, 
April 4, 2018) and the 2019 Skipjack HRG IHA (84 FR 51118, September 
27, 2019) for examples. Prior to the issuance of these IHAs 
(approximately 2018 and older), NMFS typically relied upon practical 
spreading for these types of survey activities. However, as additional 
scientific evidence became available, including numerous sound source 
verification reports, NMFS determined that this approach was 
inappropriately conservative and, since that time, as consistently used 
spherical spreading. Furthermore, NMFS' User Spreadsheet tool assumes a 
``safe distance'' methodology for mobile sources where propagation loss 
is spherical spreading (20LogR) (https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null), and NMFS calculator tool for 
estimating isopleths to Level B harassment thresholds also incorporates 
the use of spherical spreading.
    As described in the notice for the proposed initial IHA (87 FR 
52515, August 26, 2022), NMFS estimate the amount of take through a 
simple formula (Estimated take = species density x ZOI x # of survey 
days). For the initial and Renewal IHAs, NMFS relied upon the best 
available scientific information in assessing the likelihood of 
occurrence for all potentially impacted marine mammal species, using 
Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016b, 2017, 2018, 2021) 
which represent the best available information regarding marine mammal 
densities in the survey area. Density data for all taxa are available 
for 10 km x 10 km grid cells over the entire survey area and, for most 
species (including North Atlantic right whale), are available for each 
of 12 months. NMFS believes that this approach to use the density 
information to estimate take is appropriate. Once the density per 
species in the project area were obtained, the ZOI and number of days 
of possible activity resulting in ensonified waters were multiplied. In 
some instances, the resulting estimated take is less than one group 
size and the take is increased to account for such (as described in the 
proposed initial and Renewal IHA notices). This creates a sound 
approach to calculate the number of species possibly affected by the 
proposed activities. A description on what numbers were used in the 
calculations for the Renewal IHA can be found in the proposed IHA in 
the Federal Register (88 FR 62337, September 11, 2023).
    Comment 4: The planned activities could result in death or serious 
injury of marine mammals. Additionally, the increased boat traffic and 
sound from the acoustic sources for profiling the ocean floor could 
result in more than Level B harassment (e.g., death or serious injury). 
The IHA must include a vessel traffic plan to minimize the effects of 
vessels on marine mammals.
    Response: NMFS emphasizes that there is no credible scientific 
evidence available suggesting that mortality and/or serious injury is a 
potential outcome of the planned survey activity. Additionally, NMFS 
cannot authorize mortality or serious injury via an IHA, and such 
taking is prohibited under the IHA. Moreover, the commenter did not 
provide additional scientific information for NMFS to consider.
    NMFS has carefully reviewed the best available scientific 
information in assessing impacts to marine mammals and determined that 
the surveys have the potential to impact marine mammals through 
behavioral effects and auditory masking. The best available science 
indicates that Level B harassment, or disruption of behavioral 
patterns, may occur as a result of Orsted's specified activities. No 
Level A harassment is expected to result, even in the absence of 
mitigation, given the characteristics of the sources planned for use. 
This is additionally supported by the required mitigation and very 
small estimated Level A harassment zones described in the initial IHA 
Federal Register notice (87 FR 61575, October 12, 2022) and carried 
through to the Renewal IHA (88 FR 62337, September 11, 2023). NMFS 
considers the potential for Level A harassment for any species to be 
discountable.
    We also refer to the Greater Atlantic Regional Fisheries Office 
(GARFO) 2021 Programmatic Consultation, which finds that these survey 
activities are in general not likely to adversely affect ESA-listed 
marine mammal species (i.e., GARFO's analysis conducted pursuant to the 
ESA finds that marine mammals are not likely to be taken at all (as 
that term is defined under the ESA), much less be taken by serious 
injury or mortality). That document is found at https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation.
    Orsted did not request authorization for take incidental to vessel 
strike during Orsted's marine site characterization survey. 
Nevertheless, NMFS analyzed the potential for vessel strikes to occur 
during the survey, and determined that the potential for vessel strike 
is so low as to be discountable. NMFS takes seriously the risk of 
vessel strike and has prescribed measures sufficient to avoid the 
potential for vessel strike to the extent practicable. NMFS has 
required these measures despite a very low likelihood of vessel strike; 
vessels associated with the survey activity will add a discountable 
amount of vessel traffic to the specific geographic region and, 
furthermore, vessels towing survey gear travel at very slow speeds 
(i.e., roughly 4-5 knots). Condition 4(g) in the IHA contains a suite 
of non-discretionary requirements pertaining to vessel strike 
avoidance, including vessel operation protocols and monitoring. To 
date, NMFS is not aware of any site characterization vessel from 
surveys reporting a vessel strike within the United States.
    Comment 5: NMFS should deny the proposed project and/or postpone 
any offshore wind (OSW) activities until NMFS determines effects of all 
OSW activities on marine mammals in the region and determines that the 
recent whale deaths are not related to OSW activities. Similarly, some 
commenters provided general concerns regarding recent whale stranding 
events on the Atlantic Coast, including speculation that the strandings 
may be related to wind energy development-related activities.
    Response: NMFS authorizes take of marine mammals incidental to 
marine site characterization surveys but does not authorize the surveys 
themselves. Therefore, while NMFS has the

[[Page 69165]]

authority to modify, suspend, or revoke an IHA if the IHA holder fails 
to abide by the conditions prescribed therein (including, but not 
limited to, failure to comply with monitoring or reporting 
requirements), or if NMFS determines that (1) the authorized taking is 
having or is likely to have more than a negligible impact on the 
species or stocks of affected marine mammals, or (2) the prescribed 
measures are likely not or are not effecting the least practicable 
adverse impact on the affected species or stocks and their habitat, it 
is not within NMFS' jurisdiction to impose a moratorium on offshore 
wind development or to require surveys to cease on the basis of 
unsupported speculation. The MMPA requires us to evaluate the effects 
of the specified activities in consideration of the best scientific 
evidence available and, if the necessary findings are made, to issue 
the requested incidental take authorization. The MMPA does not allow us 
to delay decision making in hopes that additional information may 
become available in the future.
    NMFS reiterates that there is no evidence that noise resulting from 
offshore wind development-related site characterization surveys could 
potentially cause marine mammal stranding, and there is no evidence 
linking recent large whale mortalities and currently ongoing surveys. 
The commenters offer no such evidence. NMFS will continue to gather 
data to help us determine the cause of death for these stranded whales. 
We note the Marine Mammal Commission's recent statement: ``There 
continues to be no evidence to link these large whale strandings to 
offshore wind energy development, including no evidence to link them to 
sound emitted during wind development-related site characterization 
surveys, known as HRG surveys. Although HRG surveys have been occurring 
off New England and the mid-Atlantic coast, HRG devices have never been 
implicated or causatively-associated with baleen whale strandings.'' 
(Marine Mammal Commission Newsletter, Spring 2023).
    There is an ongoing Unusual Mortality Event (UME) for humpback 
whales along the Atlantic coast from Maine to Florida, which includes 
animals stranded since 2016. Partial or full necropsy examinations were 
conducted on approximately half of the whales. Necropsies were not 
conducted on other carcasses because they were too decomposed, not 
brought to land, or stranded on protected lands (e.g., national and 
state parks) with limited or no access. Of the whales examined (roughly 
90), about 40 percent had evidence of human interaction, either vessel 
strike or entanglement. Vessel strikes and entanglement in fishing gear 
are the greatest human threats to large whales. The remaining 50 
necropsied whales either had an undetermined cause of death (due to a 
limited examination or decomposition of the carcass) or had other 
causes of death including parasite-caused organ damage and starvation.
    As discussed herein, HRG sources may behaviorally disturb marine 
mammals (e.g., avoidance of the immediate area). These HRG surveys are 
very different from seismic airguns used in oil and gas surveys or 
tactical military sonar. They produce much smaller impact zones 
because, in general, they have lower source levels and produce output 
at higher frequencies. The area within which HRG sources might 
behaviorally disturb a marine mammal is orders of magnitude smaller 
than the impact areas for seismic airguns or military sonar. Any marine 
mammal exposure would be at significantly lower levels and shorter 
duration, which is associated with less severe impacts to marine 
mammals.
    Comment 6: The number of takes NMFS proposed to authorize for North 
Atlantic right whale is too high, the data used to determine the level 
of take was not based on the best available science and should have 
included Level A harassment. In addition, NMFS should delay or deny 
issuing the Renewal IHA until the results from new North Atlantic right 
whale research is published and fully analyzed.
    Response: NMFS disagrees that the number of takes by Level B 
harassment is high and emphasizes its determination that the authorized 
takes of North Atlantic right whales represents small numbers of marine 
mammals relative to the affected stock abundances (i.e., 5.03 percent; 
NMFS considers that one-third of the most appropriate population 
abundance number--as compared with the assumed number of individuals 
taken--is an appropriate limit with regard to ``small numbers''). NMFS 
refers to our response on estimating take in Comment 3, which 
referenced the process that resulted in the 5.03 percent takes by Level 
B harassment of North Atlantic right whale. NMFS reiterates that there 
is no credible scientific evidence available suggesting that Level A 
harassment, mortality, and/or serious injury is a potential outcome of 
the planned survey activity, as further discussed in our response to 
Comment 4.
    The MMPA specifies that the ``best available data'' must be used, 
which does not always mean the most recent. We referenced the best 
available data for our effects analysis (i.e., impact assessment) 
available at the time of publication. NMFS relied upon the best 
scientific evidence available, including, but not limited to, the 2022 
SAR (Hayes et al., 2023), scientific literature, and Duke University's 
density model (Roberts et al., 2022), in analyzing the impacts of this 
project's specified activities on marine mammals. The commenter did not 
provide additional scientific information for NMFS to consider. NMFS 
reiterates our response on the use of best available science in Comment 
4.
    NMFS disagrees that a delay or denial of the Renewal IHA is 
necessary until new scientific information is available. The MMPA 
requires us to evaluate the effects of the specified activities in 
consideration of the best scientific evidence available and, if the 
necessary findings are made, to issue the requested incidental take 
authorization. The MMPA does not allow us to delay decision making in 
hopes that additional information may become available in the future. 
If new information, which NMFS considers to be the best available 
scientific information, demonstrates that the authorized activity is 
having a non-negligible impact on a marine mammal stock, NMFS must 
modify, suspend, or revoke the IHA.
    Comment 7: NMFS must reissue the Renewal IHA notice and provide a 
full 30-day comment period to ensure adequate public engagement. The 
15-day public comment period for IHA renewals is a violation of the 
MMPA, which requires a 30-day public comment period for all IHAs, 
including reauthorizations. NMFS falsely asserts that if it includes an 
opportunity to comment on a renewal at the time of the proposed IHA, 
the original comment period will count towards the 30-day requirement. 
The text of the MMPA, however, does not explicitly or implicitly 
recognize an expedited renewal process with a 15-day comment period for 
IHAs even if NMFS determines the activities are nearly identical.
    Response: NMFS' IHA renewal process meets all statutory 
requirements. In prior responses to comments about IHA renewals (e.g., 
84 FR 52464, October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS 
explained the IHA renewal process is consistent with the statutory 
requirements contained in section 101(a)(5)(D) of the MMPA and further,

[[Page 69166]]

promotes NMFS' goals of improving conservation of marine mammals and 
increasing efficiency in the MMPA compliance process. Therefore, NMFS 
disagrees with this comment.
    All IHAs issued, whether an initial IHA or a renewal, are valid for 
a period of not more than 1 year. The public has 30 days to comment on 
proposed IHAs, with a cumulative total of 45 days for IHA renewals. The 
notice of the proposed IHA published in the Federal Register (87 FR 
52515, August 26, 2022) provided a 30-day public comment period and 
made clear that NMFS was seeking comment on the proposed IHA and the 
potential issuance of a renewal for this survey. As detailed in the 
Federal Register notice for the proposed IHA and on the agency's 
website, eligibility for renewal is determined on a case-by-case basis, 
renewals are subject to an additional 15-day public comment period, and 
the renewal is limited to up to another year of identical or nearly 
identical activities as described in the Description of Proposed 
Activities section of the proposed IHA notice or the activities 
described in the Description of Proposed Activities section of the 
proposed IHA notice would not be completed by the time the IHA expires 
and a renewal would allow for completion of the activities beyond that 
described in the Dates and Duration section of this notice. NMFS' 
analysis of the anticipated impacts on marine mammals caused by the 
applicant's activities covers both the initial IHA period and the 
possibility of a 1-year renewal. Therefore, a member of the public 
considering commenting on a proposed initial IHA also knows exactly 
what activities (or subset of activities) would be included in a 
proposed renewal IHA, the potential impacts of those activities, the 
maximum amount and type of take that could be caused by those 
activities, the mitigation and monitoring measures that would be 
required, and the basis for the agency's negligible impact 
determinations, least practicable adverse impact findings, small 
numbers findings, and (if applicable) the no unmitigable adverse impact 
on subsistence use finding--all the information needed to provide 
complete and meaningful comments on a possible renewal at the time of 
considering the proposed initial IHA. Reviewers have the information 
needed to meaningfully comment on both the immediate proposed IHA and a 
possible 1-year renewal, should the IHA holder choose to request one.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
would also contain a preliminary monitoring report, if work had 
commenced, in order to verify that effects from the activities do not 
indicate impacts of a scale or nature not previously analyzed. The 
additional 15-day public comment period, which includes NMFS' direct 
notice to anyone who commented on the proposed initial IHA, 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. Combined together, the 30-day 
public comment period on the initial IHA and the additional 15-day 
public comment period on the renewal of the same or nearly identical 
activities, provides the public with a total of 45 days to comment on 
the potential for renewal of the IHA.
    In addition to the IHA renewal process being consistent with all 
requirements under section 101(a)(5)(D) of the MMPA, it is also 
consistent with Congress' intent for issuance of IHAs to the extent 
reflected in statements in the legislative history of the MMPA. Through 
the 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 these, posting of substantive documents on the agency's website, and 
provision of 30 or 45 days for public review and comment on all 
proposed initial IHAs and renewals respectively, NMFS has ensured that 
the public is ``invited and encouraged to participate fully in the 
agency's decision-making process,'' as Congress intended.
    Comment 8: NMFS must use the best available science, especially for 
North Atlantic right whale, including population estimates, recent 
habitat usage patterns for the study area and up to date seasonality 
information that may differ from the March-April and November-December 
migration periods cited in the notice. NMFS has not fully considered 
both the use of the area and the effects of both acute and chronic 
stressors on the health and fitness of North Atlantic right whales, as 
disturbance responses in North Atlantic right whales could lead to 
chronic stress or habitat displacement, leading to an overall decline 
in their health and fitness.
    Response: While NMFS agrees that the best available science must be 
used for assessing North Atlantic right whale abundance estimates, we 
disagree that the provided New England Aquarium's (i.e., North Atlantic 
Right Whale Report Card) 2022 estimate of 340 referenced represents the 
most recent and best available estimate for North Atlantic right whale 
abundance. Rather the abundance estimate (338) in the 2022 Stock 
Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), 
which was used in the proposed Renewal IHA, provides the most recent 
and best available estimate. Furthermore, NMFS notes that the SARs are 
peer reviewed by statutorily established scientific review groups prior 
to being finalized and published and that the North Atlantic Right 
Whale Report Card (Pettis et al., 2022) does not undertake this 
process.
    NMFS further notes that the commenters seem to be conflating the 
phrase ``best available data'' with ``the most recent data''. The MMPA 
specifies that the ``best available data'' must be used, which does not 
always mean the most recent. We referenced the best available North 
Atlantic right whale abundance estimate of 338 from the 2022 SARs as 
NMFS' determination of the best available data that we relied on in our 
analysis.
    NMFS considered the best available science regarding both recent 
habitat usage patterns for the study area and up-to-date seasonality 
information in the notice of the proposed IHA, including consideration 
of existing Biologically Important Areas (BIAs) and densities provided 
by Roberts et al. (2022). While the commenter has suggested that NMFS 
consider best available information for recent habitat usage patterns 
and seasonality, it has not offered any additional information for NMFS 
to consider.
    Lastly, any impacts to marine mammals are expected to be temporary 
and minor given the relative size of the survey area compared to the 
overall

[[Page 69167]]

migratory BIA. The survey area is extremely small (encompassing a small 
area offshore New England) compared to the size of the North Atlantic 
right whale migratory BIA (269,448 km2), which spans from Florida to 
Maine. Because of this, and in context of the minor, low-level nature 
of the impacts expected to result from the planned survey, such impacts 
are not expected to result in disruption to biologically important 
behaviors.
    NMFS agrees that both acute and chronic stressors are of concern 
for North Atlantic right whale conservation and recovery. We recognize 
that acute stress from acoustic exposure is one potential impact of 
these surveys, and that chronic stress can have fitness, socializing, 
feeding impacts at the population-level scale. NMFS has carefully 
reviewed the best available scientific information in assessing impacts 
to marine mammals, and recognizes that the surveys have the potential 
to impact marine mammals through behavioral effects, stress responses, 
and auditory masking. However, NMFS does not expect that the generally 
short-term, intermittent, and transitory marine site characterization 
survey activities planned will create conditions of acute or chronic 
acoustic exposure leading to long-term physiological stress responses 
in marine mammals. Because North Atlantic right whales generally use 
this area for migration, any potential impacts from these surveys are 
expected to be brief. In context of these expected low-level impacts, 
which are not expected to meaningfully affect important behavior, we 
also refer again to the large size of the migratory corridor compared 
with the survey area. Thus, the transitory nature of North Atlantic 
right whales at this location means it is unlikely for any exposure to 
cause chronic effects, as the planned survey area and ensonified zones 
are much smaller than the overall migratory corridor. As such, NMFS 
does not expect acute or cumulative stress to be a detrimental factor 
to North Atlantic right whales from Orsted's described survey 
activities. NMFS has also prescribed a robust suite of mitigation 
measures, including extended distance shutdowns for North Atlantic 
right whales that are expected to further reduce the duration and 
intensity of acoustic exposure while limiting the potential severity of 
any possible behavioral disruption.
    Lastly, NMFS disagrees that the effects of Orsted's survey may 
contribute to stunted growth rates as suggested by a commenter. The 
activities associated with Orsted's survey are outside the scope of 
activities described in the Steward et al. (2021) paper and NMFS does 
not expect impacts such as these to result from Orsted's described 
survey activities.
    Comment 9: NMFS must make an assessment of which activities, 
technologies and strategies are truly necessary to achieve site 
characterization to inform development of the offshore wind projects 
and which are not critical, asserting that NMFS should prescribe the 
appropriate survey techniques. NMFS must require that all IHA 
applicants minimize the impacts of underwater noise to the fullest 
extent feasible, including through the use of lower impact technology 
and methods to minimize adverse effects (e.g., sound levels) from 
geophysical surveys.
    Response: The MMPA requires that an IHA include measures that will 
affect the least practicable adverse impact on the affected species and 
stocks and, in practice, NMFS agrees that the IHA should include 
conditions for the survey activities that will first avoid adverse 
effects in and around the survey site and then minimize the effects 
that cannot be avoided. NMFS has determined that the IHA meets this 
requirement to effect the least practicable adverse impact. As part of 
the analysis for all marine site characterization survey IHAs, NMFS 
evaluated the effects expected as a result of the specified activity, 
made the necessary findings, and prescribed mitigation requirements 
sufficient to achieve the least practicable adverse impact on the 
affected species and stocks of marine mammals. It is not within NMFS' 
purview to make judgments regarding what may be appropriate techniques 
or technologies for an operator's survey objectives.
    Comment 10: NMFS should require all vessels associated with the 
site characterization activities to carry and use PSOs at all times 
when underway. During low visibility conditions, the IHA should require 
PSO monitoring to include infrared (IR) detection devices. NMFS should 
restrict all vessels of all sizes associated with the proposed survey 
activities to speeds less than 10 knots (kn) at all times due to the 
risk of vessel strikes to North Atlantic right whales and other large 
whales. NMFS should require vessels maintain a separation distance of 
at least 500 m from North Atlantic right whales at all times.
    Response: NMFS notes a requirement to utilize PSOs when specific 
acoustic sources (impulsive: sparkers; non-impulsive: non-parametric 
sub-bottom profilers-CHIRPs) are operating, a minimum of one PSO must 
be on duty, per source vessel, during daylight hours and two PSOs must 
be on duty, per source vessel, during nighttime hours (see Condition 
4(a)). In addition, visual observers monitoring the vessel strike 
avoidance zone may be third-party observers (i.e., PSOs) or crew 
members, but crew members responsible for these duties must be provided 
sufficient training (see Condition 4(g)(i)).
    NMFS notes a requirement to utilize a thermal (infrared) device 
during low-light conditions was included in the proposed Federal 
Register Notice of the initial IHA. That requirement is included as a 
requirement of the issued IHA and the Renewal IHA.
    While NMFS acknowledges that vessel strikes can result in injury or 
mortality, we have analyzed the potential for vessel strike resulting 
from Orsted's activities and have determined that based on the nature 
of the activity and the required mitigation measures specific to vessel 
strike avoidance included in the IHA, potential for vessel strike is so 
low as to be discountable. The required mitigation measures, all of 
which were included in the proposed initial IHA and were required in 
the final IHA (and in this Renewal IHA), include: A requirement that 
all vessel operators comply with 10 kn (18.5 km/hour) or less speed 
restrictions in any Seasonal Management Area (SMA), Dynamic Management 
Area (DMA), or Slow Zone while underway, and check daily for 
information regarding the establishment of mandatory or voluntary 
vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and information 
regarding NARW sighting locations; a requirement that all vessels 
greater than or equal to 19.8 m in overall length operating from 
November 1 through April 30 operate at speeds of 10 kn (18.5 km/hour) 
or less; a requirement that all vessel operators reduce vessel speed to 
10 kn (18.5 km/hour) or less when any large whale, any mother/calf 
pairs, pods, or large assemblages of non-delphinid cetaceans are 
observed near the vessel; a requirement that all survey vessels 
maintain a separation distance of 500 m or greater from any ESA-listed 
whales or other unidentified large marine mammals visible at the 
surface while underway; a requirement that, if underway, vessels must 
steer a course away from any sighted ESA-listed whale at 10 kn or less 
until the 500 m minimum separation distance has been established; a 
requirement that, if an ESA-listed whale is sighted in a vessel's path, 
or within 500 m of an underway vessel, the underway vessel must reduce 
speed and shift the engine to neutral; a requirement that all vessels 
underway must maintain a minimum separation distance of 100 m from all 
non-ESA-

[[Page 69168]]

listed baleen whales; and a requirement that all vessels underway must, 
to the maximum extent practicable, attempt to maintain a minimum 
separation distance of 50 m from all other marine mammals, with an 
understanding that at times this may not be possible (e.g., for animals 
that approach the vessel). We have determined that the vessel strike 
avoidance measures in the IHA are sufficient to ensure the least 
practicable adverse impact on species or stocks and their habitat. 
Furthermore, no documented vessel strikes have occurred for any marine 
site characterization surveys which were issued IHAs from NMFS during 
the survey activities themselves or while transiting to and from survey 
sites.
    NMFS notes the requirement to maintain a separation distance of at 
least 500 m from North Atlantic right whales at all times was included 
in the proposed Federal Register Notice and was included as a 
requirement in the issued IHA (and for the Renewal IH).
    Comment 11: The IHA should require all vessels supporting site 
characterization to be equipped with and using Class A Automatic 
Identification System (AIS) devices at all times while on the water. 
Oceana suggested this requirement should apply to all vessels, 
regardless of size, associated with the survey.
    Response: NMFS is generally supportive of the idea that vessels 
involved with survey activities be equipped with and using Class A 
Automatic Identification System (devices) at all times while on the 
water. Given the small isopleths and small numbers of take authorized 
by this IHA, NMFS does not agree that the benefits of requiring AIS on 
all vessels associated with the survey activities outweighs and 
warrants the cost and practicability issues associated with this 
requirement.
    Comment 12: The IHA must include requirements to hold all vessels 
associated with site characterization surveys accountable to the IHA 
requirements, including vessels owned by the developer, contractors, 
employees, and others regardless of ownership, operator, and contract. 
The comment further states that exceptions and exemptions will create 
enforcement uncertainty and incentives to evade regulations through 
reclassification and redesignation. They recommend that NMFS simplify 
this by requiring all vessels to abide by the same requirements, 
regardless of size, ownership, function, contract or other specifics.
    Response: NMFS notes that the initial and Renewal IHAs authorizes 
Orsted and and its designees to incidentally harass marine mammals 
under certain conditions. Nevertheless, NMFS has added language to the 
Renewal IHA to clarify that the IHA conditions apply to those persons 
Orsted authorizes or funds to conduct activities on its behalf. The 
initial and Renewal IHAs also require that a copy of the IHA must be in 
the possession of Orsted, the vessel operators, the lead PSO, and any 
other relevant designees of Orsted operating under the authority of 
this IHA. The IHA also states that Orsted must ensure that the vessel 
operator and other relevant vessel personnel, including the Protected 
Species Observer (PSO) team, are briefed on all responsibilities, 
communication procedures, marine mammal monitoring protocols, 
operational procedures, and IHA requirements prior to the start of 
survey activity, and when relevant new personnel join the survey 
operations.
    Comment 13: The IHA must include a requirement for all phases of 
the site characterization to subscribe to the highest level of 
transparency, including frequent reporting to federal agencies. NMFS 
should require that Orsted report all visual and acoustic detections of 
North Atlantic right whales and any dead, injured, or entangled marine 
mammals to NMFS or the U.S. Coast Guard as soon as possible and no 
later than the end of the PSO shift. In addition, to foster stakeholder 
relationships and allow public engagement and oversight of the 
permitting, the IHA should require all reports and data to be 
accessible on a publicly available website.
    Response: NMFS notes the reporting requirements were included in 
the proposed IHA and were carried forward into the issued IHA (see 
Condition 6). As such, Orsted is already required to submit a 
monitoring report to NMFS within 90 days after completion of survey 
activities that fully documents the methods and monitoring protocols, 
summarizes the data recorded during monitoring. PSO datasheets or raw 
sightings data must also be provided with the draft and final 
monitoring report; sightings of North Atlantic right whales must be 
reported to the NMFS Right Whale Sightings Advisory System within two 
hours of occurrence, when practicable, or no later than 24 hours after 
occurrence; Orsted must also report North Atlantic right whale sighting 
to the U.S. Coast Guard. Additionally, Orsted must report any 
discoveries of injured or dead marine mammals to the NMFS Office of 
Protected Resources and to the New England/Mid-Atlantic Regional 
Stranding Coordinator as soon as feasible. This includes entangled 
animals.
    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 
PSO reports is warranted and we have not included this measure in the 
authorization.
    Comment 14: NMFS should require a visual and acoustic clearance 
zone of at least 1,000 m for North Atlantic right whales during HRG 
survey activities. If a North Atlantic right whale is observed in the 
clearance zone then survey activities must cease (i.e., shut down). If 
a shutdown cannot occur due to human safety, Orsted must immediately 
notify NMFS with reasons and explanation for exemption and a summary of 
the frequency of these exceptions must be publicly available to ensure 
that these are the exception rather than the norm for the project. When 
safe to resume, HRG surveys should be required to use a soft start, 
ramp-up procedure to encourage any nearby marine life to leave the 
area.
    Response: NMFS notes that the 500 m clearance and shutdown zones 
included in the proposed IHA and carried forward in the issued IHA for 
North Atlantic right whales exceeds the modeled distance to the largest 
160 dB Level B harassment isopleth (141 m during sparker use) by a 
substantial margin. Commenters did not provide additional scientific 
information for NMFS to consider to support their recommendation to 
expand the clearance and shutdown zones. Given that these surveys are 
relatively low impact and that NMFS has prescribed North Atlantic right 
whale clearance and shutdown zones that are significantly larger (500 
m) than the conservatively estimated largest harassment zone (141 m), 
NMFS has determined that the 500-m zone size is appropriate.
    While the IHA requires that Orsted report when a shutdown occurs 
and if required mitigation was not implemented, NMFS disagrees that 
data on when shutdowns do not occur due to safety concerns should be 
made publicly available because the exemption is due to human safety 
and

[[Page 69169]]

is a blanket provision necessary for the safety of the crew and vessels 
and is not an act of non-compliance with the requirements within the 
IHA.
    NMFS notes the recommendation to require ramp-up is included in the 
Federal Register notice of the proposed IHA (87 FR 52515, August 26, 
2022) and the final IHA (87 FR 61575, October 12, 2022), and is 
required in the Renewal IHA (see Condition 4(e)).
    Comment 15: In the Renewal application, Orsted proposed lower 
levels of take for humpback whales, Risso's dolphin, and minke whale 
than previously authorized in the initial IHA. NMFS must clarify why 
the lower take levels, including the use of different group size data, 
was not used in the Renewal IHA and NMFS is choosing to allow more take 
than requested. Subsequently, NMFS claimed that the 2020-2021 PSO data 
for humpback and minke whales is the best scientific evidence 
available, and the 2022 PSO data collected under 87 FR 13975 (March 11, 
2022) is not. PSO synthesis from 2019 is not the best scientific 
evidence available for Risso's dolphins, but PSO data from 2020-2021 is 
the best scientific evidence available for humpback and minke whales. 
Kenney and Vigness-Raposa, for reasons unknown, may be used for Risso's 
dolphins and not for minke whales.
    Response: NMFS utilizes the best available science when analyzing 
which species may be impacted by an applicant's proposed activities. 
NMFS proposed to authorize the same number of incidental takes for all 
species as the initial IHA as the activities are identical and we 
referenced the activity level and data sources (as the best scientific 
information available) used in the initial IHA, as explained below.
    Orsted's Renewal IHA application requested lower take numbers 
through a combination of slightly fewer survey day (390 verses 400) and 
referenced different data sources from the initial IHA to inform group 
sizes for humpback whale (collected under the Northeast Projects IHA 
(87 FR 13975, March 11, 2022)), minke whale (Kenney and Vigness-Raposa, 
2010); and Risso's dolphin (Barkaszi and Kelly, 2019). Orsted decreased 
the number of survey days from 400 to 390 based on the assumption that 
subsidiaries of Orsted will have separate incidental take 
authorizations for marine site characterization surveys in Lease Areas 
OCS-A 0486 (Revolution Wind; 88 FR 8996, February 10, 2023) and OCS-A 
0487 (Sunrise Wind; 87 FR 79072, January 19, 2023) during the proposed 
effective period of the Renewal IHA. NMFS proposed to authorize 
incidental take assuming 400 survey days would be necessary as NMFS has 
not promulgated final rules for Revolution Wind and Sunrise Wind. As 
the take requested in the renewal application assumed 390 days and not 
the 400, NMFS applied the prior activity levels from the initial IHA to 
the species average annual density amount (the initial and renewal used 
Robert et al., 2022) to estimate take (Estimated take = species density 
x ZOI x # of survey days). Therefore, the requested take numbers should 
be consistent with the amounts previously authorized when only 
considering the number of survey days.
    When the group size data were considered, the takes requested by 
Orsted for these species in their Renewal IHA application were equal to 
or less than that authorized under the initial IHA. NMFS assessed the 
changed data sources and chose the best available science and most 
conservative route to estimate take when adjusted for group size. NMFS 
refers to our responses pertaining to the best available science in 
Comments 6 and 8.
    In the Renewal IHA application, Orsted referenced data for minke 
whale using Kenney and Vigness-Raposa (2010), however, the initial IHA 
application used draft PSO data from surveys conducted in the project 
lease areas and export cable routes between May 2020 and December 2021 
(Table 13 in the initial IHA application). NMFS disagreed with Orsted's 
use of Kenney and Vigness-Raposa (2010) as the PSO data previously 
provided was considered the best scientific information available. The 
``draft PSO data'' was from ongoing site characterization surveys, 
spanning nearly two years (May 2020 through December 2021), under 
previous and existing IHAs in the area (13 minke observed within 500 m 
of an active sound source). The final PSO data referenced in the 
Renewal IHA application was collected under one IHA (87 FR 13975, March 
11, 2022), though not used by Orsted in their take request, was limited 
to an observation period of 7 month (March through September 2022) and 
resulted in a mean group size of 1 (Table 2 in the Renewal IHA 
application). In their Renewal IHA application, Orsted chose to use a 
group size adjustment of 9 from Kenney and Vigness-Raposa (2010) and 
not the final PSO data due to the low group size number (1). As the 
planned activities may occur in any month of the year, the draft PSO 
data were over a significantly longer observation period and included 
year-round PSO data, and to be conservative in estimating the possible 
level of effect, NMFS chose to utilize the draft PSO data when setting 
the group size adjustment within the project area for minke (13).
    In the Renewal IHA application, Orsted referenced data for humpback 
whales from PSO data collected in 2022 under 87 FR 13975 (March 11, 
2022), however, the initial IHA application used draft PSO data from 
surveys conducted in the project lease areas and export cable routes 
between May 2020 and December 2021 (Table 13 in the initial IHA 
application). As with minke, the draft PSO data was considered the best 
available science for the group size adjustment (34 observed within 500 
m of an active source) as opposed to the final PSO data (mean group 
size of 2.3; Table 2 in the Renewal IHA application). To be 
conservative in estimating the possible level of effect, NMFS chose to 
utilize the draft PSO data due to the longer observation period when 
setting the group size adjustment within the project area for humpback 
(34).
    In the Renewal IHA application, Orsted referenced data for Risso's 
dolphin from Barkaszi and Kelly (2019), however, the initial IHA 
application used Kenney and Vigness-Raposa (2010). NMFS disagrees with 
the use of Barkaszi and Kelly (2019) as that research is from 
observations in the Gulf of Mexico and other more geographically 
appropriate data exists (Kenney and Vigness-Raposa, 2010). Orsted did 
not use the draft or final PSO data used for minke in their 
applications; the draft PSO data observed 1 Risso's dolphin within 500 
m of an active sound source, the final PSO data collected under 87 FR 
13975 had 0 observations (no detections of that species in the PSO 
records). Due to the lack of observation data on Risso's dolphins 
through the PSO records, this data source was not appropriate for this 
particular species and NMFS chose to not use it as the best available 
science.
    The change from 17 to 16 for take by Level B harassment for the 
North Atlantic right whale was due to a difference in rounding between 
the initial IHA and Renewal IHA applications. NMFS continued with the 
previous rounding approach from the initial IHA (17).
    Comment 16: Commenters expressed concern regarding ocean noise and 
the interference it has on whales and other marine mammals' use of 
echolocation and sonography to communication and travel (i.e., 
masking).
    Response: The commenters did not provide additional scientific 
information for NMFS to consider. NMFS has carefully reviewed the best

[[Page 69170]]

available scientific information in assessing impacts to marine mammals 
and determined that the surveys have the potential to impact marine 
mammals through behavioral effects and auditory masking. NMFS agrees 
that noise pollution in marine waters is an issue and is affecting 
marine mammals, including their ability to communicate when noise 
reaches certain thresholds. However, NMFS does not expect that the 
generally short-term, intermittent, and transitory marine site 
characterization survey activities planned by Orsted will create 
conditions of acute or chronic acoustic exposure leading to long-term 
physiological impacts in marine mammals.

Determinations

    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. This includes consideration of the 2022 SAR estimated 
abundance of the North Atlantic right whale stock. Specifically, NMFS 
is proposing to authorize 17 takes of North Atlantic right whales by 
Level B harassment only, and the impacts resulting from the project's 
activities are neither reasonably expected nor reasonably likely to 
adversely affect the stock through effects on annual rates of 
recruitment or survival. Additionally, approximately 5 percent of the 
stock abundance is proposed for take by Level B harassment.
    Based on the information and analysis contained here and in the 
referenced documents, including the consideration of the final 2022 
SARs, NMFS has determined the following: (1) the required mitigation 
measures will effect the least practicable impact on marine mammal 
species or stocks and their habitat; (2) the authorized takes will have 
a negligible impact on the affected marine mammal species or stocks; 
(3) the authorized takes represent small numbers of marine mammals 
relative to the affected stock abundances; (4) Orsted'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

    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take authorizations with no 
anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has determined that the application of this categorical 
exclusion remains appropriate for this Renewal IHA.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take for endangered or threatened species.
    NMFS Office of Protected Resources has authorized the incidental 
take of four species of marine mammals which are listed under the ESA 
(the North Atlantic right, fin, sei, and sperm whale) and has 
determined that these activities fall within the scope of activities 
analyzed in GARFO's programmatic consultation regarding geophysical 
surveys along the U.S. Atlantic coast in the three Atlantic Renewable 
Energy Regions (completed June 29, 2021; revised September 2021). The 
Renewal IHA provides no new information about the effects of the 
action, nor does it change the extent of effects of the action, or any 
other basis to require reinitiation of consultation with NMFS GARFO; 
therefore, the ESA consultation has been satisfied for the initial IHA 
and remains valid for the Renewal IHA.

Renewal IHA

    As a result of these determinations, NMFS has issued a renewal IHA 
to Orsted for conducting marine site characterization surveys off New 
York to Massachusetts (Lease Areas OCS-A 0486, 0487, and 0500), 
effective from October 6, 2023 through October 5, 2024, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: September 29, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-22120 Filed 10-4-23; 8:45 am]
BILLING CODE 3510-22-P