Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off the Coast of Delaware, 46073-46084 [2024-11537]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Notices]
[Pages 46073-46084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11537]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD820]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off the Coast of Delaware

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

[[Page 46074]]

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from Orsted Wind Power North 
America, LLC (Orsted), for an incidental harassment authorization (IHA) 
that is identical to an IHA previously issued to Orsted authorizing the 
take of marine mammals, by Level B harassment only, incidental to 
marine site characterization surveys conducted off the coast of 
Delaware in the Bureau of Ocean Energy Management (BOEM) Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS) Lease Area OCS-A 0482 and 0519 (Lease Areas), 
and the associated export cable route (ECR) area. The only changes from 
the previously issued IHAs involve the updated marine mammal population 
estimates, marine mammal density data, and take estimates, as well as 
the new effective dates for the IHA. Accordingly, pursuant to the 
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an IHA to incidentally take marine mammals during 
specified activities. NMFS is also requesting comments on a possible 1-
year renewal IHA that could be issued under certain circumstances and 
if all requirements are met, as described in Request for Public 
Comments at the end of this notice. NMFS will consider public comments 
prior to making any final decision on the issuance of the requested 
MMPA authorization and agency responses will be summarized in the final 
notice of our decision. The IHA would be valid for one year from the 
effective date.

DATES: Comments and information must be received no later than June 27, 
2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email to [email protected]. Electronic copies of the 
original application, updated application, 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 below.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to comments will be 
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All 
comments received are a part of the public record and will generally be 
posted online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. 
All personal identifying information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.

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

SUPPLEMENTARY INFORMATION:

Background

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

National Environmental Policy Act

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

History of Request

    On October 1, 2021, Orsted, a limited liability company registered 
in the State of Delaware, submitted a request on behalf of Garden State 
Offshore Energy, LLC (Garden State) and Skipjack Offshore Energy, LLC 
(Skipjack), both subsidiaries of Orsted and both registered in the 
State of Delaware, for an IHA to take marine mammals incidental to 
marine site characterization surveys off the coast of Delaware in OCS-A 
0482 and 0519, and along potential ECRS to landfall locations in 
Delaware and New Jersey. NMFS published a notice of the proposed IHA in 
the Federal Register on March 21, 2022 (87 FR 15922). Subsequently, the 
final notice of issuance of the IHA was published in the Federal 
Register (87 FR 30182, May 18, 2022), announcing the effective dates of 
that IHA were from May 10, 2022, through May 9, 2023 (2022 IHA). The 
specified activities were expected to result in the take, by Level B 
harassment, of 15 species (16 stocks) of marine mammals. The work was 
expected to be completed within the 1-year timeframe of the IHA. 
However, no work was completed under the original IHA.

[[Page 46075]]

    On February 23, 2023, Orsted submitted a request that NMFS re-issue 
the previously issued IHA with the only change being new effective 
dates. NMFS published a notice of re-issuance of that IHA, announcing 
effective dates of May 10, 2023, through May 9, 2024 (88 FR 30278, May 
11, 2023) (2023 IHA). The specified activity, specific geographical 
region, the type of equipment or survey activities, amount of take 
requested by Orsted and later authorized by NMFS, as well as the 
proposed mitigation, monitoring, and requirements remained 
substantially unchanged from the 2022 IHA. Orsted completed a portion 
of the survey work that was covered by the 2023 IHA and submitted a 
preliminary monitoring report demonstrating that the required 
mitigation and monitoring requirements were satisfied, no impacts of a 
scale or nature not previously analyzed or authorized occurred as a 
result of the activities conducted, and the IHA holder did not exceed 
the authorized levels of take under that IHA (88 FR 30278, May 11, 
2023).
    On March 6, 2024, NMFS received a letter from Orsted requesting 
renewal of the re-issued 2023 IHA (2024 request) to conduct the same 
site characterization surveys within the same survey areas using the 
same type of survey equipment that was previously analyzed under the 
2022 IHA and re-issued 2023 IHA. While Orsted's planned activity would 
ordinarily qualify for a renewal of the IHA, NMFS determined that a 
renewal of the 2023 IHA is not appropriate because Duke University 
Marine Geospatial Ecology Laboratory Habitat-based Marine Mammal 
Density Models for the U.S. Atlantic was updated (https://seamap.env.duke.edu/models/Duke/EC/), which NMFS determined represents 
the best available scientific data and serves as the basis for updating 
the estimated take numbers. Marine mammal density estimates in the 
survey area (animals/km\2\) were obtained using the most recent model 
results for all taxa (Roberts et al., 2023). The updated models 
incorporate sighting data, including sightings from NOAA's Atlantic 
Marine Assessment Program for Protected Species (AMAPPS) surveys. After 
discussions with the applicant, NMFS received a revised request 
incorporating the new information, which was deemed adequate and 
complete on April 12, 2024. In evaluating the 2024 request, and where 
applicable, NMFS relies on the information previously presented in 
notices associated with issuance of the 2022 IHA (87 FR 15922, March 
21, 2022; 87 FR 30182, May 18, 2022).

Description of the Proposed Activity and Anticipated Impacts

Overview

    Orsted proposes to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) surveys and geotechnical 
surveys, in BOEM Lease Areas OCS-A 0482 and 0519, and the associated 
ECRs. The purpose of the marine site characterization surveys is to 
collect data concerning seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of offshore wind facility development. Surveys are also 
conducted to support engineering design and to map unexploded ordnance 
(UXO). Underwater sound resulting from Orsted's proposed activities, 
specifically HRG surveys, has the potential to result in incidental 
take of 15 species (16 stocks) of marine mammals, in the form of Level 
B harassment only. The proposed IHA would cover the same specified 
activities previously described in its application for the 2022 IHA and 
subsequent documents. NMFS refers the public to the documents and 
supplemental materials related to the Federal Register notice of 
proposed IHA (87 FR 15922; March 21, 2022), the notice of issuance of 
the original 2022 IHA (87 FR 30182, May 18, 2022), and the notice of 
re-issuance of the 2023 IHA (88 FR 30278, May 11, 2023). The 
descriptions and analyses contained in those documents remain accurate 
with the exception of the minor modifications described herein.

Dates and Duration

    While the exact dates have not yet been established, the proposed 
activities are planned to begin as soon as possible upon issuance of an 
IHA. The duration of the proposed activity remains unchanged from the 
2022 IHA and the re-issued 2023 IHA. The proposed activity is expected 
to require up to 350 survey days across a maximum of three vessels 
operating concurrently over the course of a single year (``survey day'' 
defined as a 24-hr activity period in which the assumed number of line 
km are surveyed). The number of anticipated survey days was calculated 
as the number of days needed to reach the overall level of effort 
required to meet survey objectives assuming any single vessel travels 4 
knots (kn) (7.4 kilometers per hour (km/hr) and surveys cover, on 
average, 70 line km per 24-hr period.

Specific Geographic Region

    The specific geographic region remains unchanged from the 
previously issued 2022 IHA and re-issued 2023 IHA. The proposed 
activities would occur within the Project Area, which includes the 
Lease Areas and potential ECRs to landfall locations in Delaware 
(figure 1). The combined Lease Areas OCS-A 0482 and 0519 are comprised 
of approximately 568 square kilometers (km\2\) within the Wind Energy 
Area of BOEM's Mid-Atlantic planning area and the overall Project Area, 
including potential ECRs, is approximately 4,510 km\2\ (see figure 1). 
Water depths in the Lease Areas range from approximately 15-40 meters 
(m). Water depths within the ECR area extend from the shoreline (0 m 
depth) to approximately 40 m.
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[GRAPHIC] [TIFF OMITTED] TN28MY24.000

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Detailed Description of the Action

    A detailed description of the proposed specified activities can be 
found in the previous Federal Register notices (87 FR 15922, March 21, 
2022; 87 FR 30182, May 18, 2022) and related-supplemental documents. 
The nature of the specified activities, including the types of HRG 
equipment planned for use (CHIRPs, boomers, and sparkers), daily 
trackline distances (70 line km per 24-hr period), and number of survey 
vessels (up to three operating concurrently), are identical to those 
described in the previous notices.

Description of Marine Mammals

    A description of the marine mammals in the area of the specified 
activities can

[[Page 46077]]

be found in the previous documents and notices for the 2022 IHA (87 FR 
15922, March 21, 2022; 87 FR 30182, May 18, 2022), which remains 
applicable to this proposed IHA. NMFS reviewed the most recent SARs 
(found on NMFS' website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments), including 
the 2023 draft SARs, up-to-date information on relevant Unusual 
Mortality Events (UMEs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events), and recent 
scientific literature and determined that the new information does not 
change our original analysis of impacts under the 2022 IHA.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al., 
2024). All values presented in table 1 are the most recent available at 
the time of publication, including, as applicable, from the draft 2023 
SARs. NMFS notes that since the issuance of the 2022 IHA, new SARs are 
available for all species with the exception of humpback whale (Gulf of 
Maine stock), bottlenose dolphin (Northern Migratory Coastal stock), 
and harbor seal (Western North Atlantic stock). All new information is 
provided in table 1 and updated density data (Roberts et al., 2023) are 
incorporated into take estimations (see Sections 3 and 6 of the updated 
application). Additionally, the new SARs data do not change our 
analysis of impacts, as described under the 2022 IHA.
    Additionally, on August 1, 2022, NMFS announced proposed changes to 
the existing North Atlantic right whale (NARW) vessel speed regulations 
(87 FR 46921, August 1, 2022) to further reduce the likelihood of 
mortalities and serious injuries to endangered NARWs from vessel 
collisions, which are a leading cause of the species' decline and a 
primary factor in an ongoing UME. Should a final vessel speed rule be 
issued and become effective during the effective period of this 
authorization (or any other MMPA incidental take authorization), the 
authorization holder will be required to comply with any and all 
applicable requirements contained within the final vessel speed 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 will be required to comply with 
the requirements of the vessel speed 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 will remain in place. The responsibility to 
comply with the applicable requirements of any vessel speed rule will 
become effective immediately upon the effective date of any final 
vessel speed rule.

                                       Table 1--Species and Stocks Likely Impacted by the Specified Activities \1\
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                                                                                                              Stock abundance (CV,
            Common name                  Scientific name              Stock             ESA/MMPA status;        Nmin, most recent      PBR   Annual M/SI
                                                                                       strategic (Y/N) \2\    abundance survey) \3\              \4\
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                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
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Family Balaenidae:
    North Atlantic Right Whale \5\.  Eubalaena glacialis...  Western Atlantic......  E, D, Y...............  340 (0, 337, 2021);        0.7         27.2
                                                                                                              356 (346-363, 2022).
Family Balaenopteridae (rorquals):
    Fin Whale......................  Balaenoptera physalus.  Western N Atlantic....  E, D, Y...............  6,802 (0.24, 5,573,         11         2.05
                                                                                                              2021).
    Humpback Whale.................  Megaptera novaeangliae  Gulf of Maine.........  -, -, N...............  1,396 (0, 1380, 2016).      22        12.15
    Minke Whale....................  Balaenoptera            Canadian Eastern        -, -, N...............  21,968 (0.31, 17,002,      170          9.4
                                      acutorostrata.          Coastal.                                        2021).
    Sei Whale......................  Balaenoptera borealis.  Nova Scotia...........  E, D, Y...............  6,292 (1.02, 3,098,        6.2          0.6
                                                                                                              2021).
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                                                  Odontoceti (toothed whales, dolphins, and porpoises)
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Family Physeteridae:
    Sperm Whale....................  Physeter macrocephalus  N Atlantic............  E, D, Y...............  5,895 (0.29, 4,639,       9.28          0.2
                                                                                                              2021).
Family Delphinidae:
    Long-Finned Pilot Whale........  Globicephala melas....  Western N Atlantic....  -, -, N...............  39,215 (0.30, 30,627,      306          5.7
                                                                                                              2021).
    Short-Finned Pilot Whale.......  Globicephala            Western N Atlantic....  -, -, Y...............  18,726 (0.33, 14,292,      143          218
                                      macrorhynchus.                                                          2021).
    Atlantic Spotted Dolphin.......  Stenella frontalis....  Western N Atlantic....  -, -, N...............  31,506 (0.28, 25,042,      250            0
                                                                                                              2021).
    Atlantic White-Sided Dolphin...  Lagenorhynchus acutus.  Western N Atlantic....  -, -, N...............  93,233 (0.71, 54,443,      544           28
                                                                                                              2021).
    Bottlenose Dolphin.............  Tursiops truncatus....  Northern Migratory      -, -, Y...............  6,639 (0.41, 4,759,         48    12.2-21.5
                                                              Coastal.                                        2016).
    Bottlenose Dolphin.............  Tursiops truncatus....  Western N Atlantic      -, -, N...............  64,587 (0.24, 52,801,      507           28
                                                              Offshore.                                       2021).
    Risso's Dolphin................  Grampus griseus.......  Western N Atlantic....  -, -, N...............  44,067 (0.19, 30,662,      307           18
                                                                                                              2021).
    Common Dolphin.................  Delphinus delphis.....  Western N Atlantic....  -, -, N...............  93,100 (0.56, 59,897,    1,452          414
                                                                                                              2021).
Family Phocoenidae (porpoises):
    Harbor Porpoise................  Phocoena phocoena.....  Gulf of Maine/Bay of    -, -, N...............  85,765 (0.53, 56,420,      649          145
                                                              Fundy.                                          2021).
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                                                               Order Carnivora--Pinnipedia
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Family Phocidae (earless seals):

[[Page 46078]]

 
    Gray Seal \6\..................  Halichoerus grypus....  Western N Atlantic....  -, -, N...............  27,911 (0.20, 23,624,    1,512        4,570
                                                                                                              2021).
    Harbor Seal....................  Phoca vitulina........  Western N Atlantic....  -, -, N...............  61,336 (0.08, 57,637,    1,729          339
                                                                                                              2018).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).
\2\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds potential biological removal (PBR) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future.
  Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, vessel strike). Annual mortality or serious injury (M/SI) often cannot be determined precisely and is in some cases presented as
  a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ Linden (2023) estimated the population size in 2022 as 356 individuals, with a 95 percent credible interval ranging from 346 to 363. NMFS
  acknowledges this most recent estimation in addition to the 2023 draft SAR stock abundance estimate.
\6\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
  is approximately 394,311. The annual M/SI given is for the total stock.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the 2022 IHA (87 FR 15922, March 21, 2022; 87 FR 30182, May 
18, 2022). At present, there is no new information on potential effects 
that would change our analysis.

Estimated Take

    A detailed description of the methods used to estimate take 
anticipated to occur incidental to the project is found in the previous 
Federal Register notices (87 FR 15922, March 21, 2022; 87 FR 30182, May 
18, 2022). The methods of estimating take are identical to those used 
in the 2022 IHA. We have updated the marine mammal densities based on 
new information (Roberts et al., 2023), available online at: https://seamap.env.duke.edu/models/Duke/EC/ EC/. We refer the reader to table 3 in 
the 2024 IHA request from Orsted for specific density values used in 
the analysis. The 2024 IHA request is available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    Due to limited data availability and difficulties identifying 
individuals to species level during visual surveys, individual 
densities are not able to be provided for all species and they are 
instead grouped into ``guilds'' (Roberts et al., 2023). These guilds 
include pilot whales and seals. Long- and short-finned pilot whales are 
difficult to distinguish during shipboard surveys so individual habitat 
models were not able to be developed and thus, densities are assumed to 
apply to both species. Similarly, Roberts et al. (2023) produced 
density models for all seals but did not differentiate by seal species. 
Because the seasonality and habitat use by gray seals roughly overlaps 
with that of harbor seals in the proposed survey areas, it was assumed 
that the mean annual density could refer to either of the represented 
species and was, therefore, divided equally between the two species.
    Sperm whales--No takes were calculated for this species, but based 
on NOAA's AMAPPS survey data and their distribution in the U.S. 
Atlantic, there is potential they will occur in the survey area. 
Therefore, Orsted is requesting authorization of a total of 2 takes for 
this species based on the average group size of 1.68 rounded to the 
nearest whole number from AMAPPS survey data.
    Pilot whales--Only one take each was calculated for the pilot whale 
species guild based on the Roberts et al. (2023) densities, but only 
long-finned pilot whales are expected to occur in this project area due 
to their more northerly distribution and association with colder water 
when compared to short-finned pilot whales (Garrison and Rosel, 2017). 
Orsted is requesting authorization of 8 takes, rounded from the average 
group size of 8.2 for long-finned pilot whales presented in AMAPPS 
survey data.
    Common dolphin--A total of 98 takes were calculated for common 
dolphins; however, based on available protected species observer (PSO) 
data from preliminary monitoring in the survey area, and an average 
group size of 30.2 based on AMAPPS survey data, it is likely that more 
individuals could be encountered during the proposed survey activities. 
Therefore, the requested takes have been increased using the total 
number of encounters from past PSO reports for this area. The total 
number of encounters for 2021, 2022, and 2023 were 18, 7, and 5 for 
common dolphins or unidentified dolphins, respectively, which equates 
to an average of 10 encounters (Gardline, 2021, Gardline, 2022, AIS, 
2024). Orsted has requested authorization of 302 takes for this 
species, based on an assumption that 10 groups with an average size of 
30.2 will be encountered.
    Atlantic spotted dolphins--Only 6 takes were calculated for this 
species, but based on AMAPPS survey data the average group size is 
24.2, which equates to a total of 24 takes Orsted is requesting be 
authorized for this species.
    Risso's dolphins--Only 1 take was calculated for this species, but 
based on AMAPPS survey data the average group size is 7.28, which 
equates to a total of 7 takes Orsted is requesting be authorized for 
this species.
    Bottlenose dolphins--There are two bottlenose dolphin stocks that 
could occur in the Project Area: The Western North Atlantic (WNA) 
Offshore stock and WNA Northern Migratory Coastal stock. For bottlenose 
dolphin densities, Roberts et al. (2023) does not differentiate by 
individual stock. The WNA Offshore stock is assumed to be located in 
depths exceeding the 20 m isobath, while the WNA Northern Migratory 
Coastal stock is assumed to be found in shallower depths than the 20 m 
isobath north of Cape Hatteras (Reeves et al., 2002, Waring et al., 
2016). The maximum potential Level B harassment takes calculated for 
each stock of bottlenose dolphins are based on the full survey duration 
occurring inside or outside the 20 m isobath; however only a portion of 
the survey will occur in each area. At this time, Orsted does not know 
the exact number of survey days that may occur within each area, and 
could not differentiate the maximum number of calculated instances of 
take (4,118 calculated) between the two stocks of bottlenose

[[Page 46079]]

dolphins potentially present during the proposed survey activities. 
Orsted therefore requested, and NMFS proposes to authorize, 4,118 
instances of take of bottlenose dolphins, regardless of stock. Given 
the uncertainty regarding the number of days Orsted's survey may be 
within the 20 m isobath, the authorization of 4,118 instances of take 
by Level B harassment is not allocated to a specific stock but rather 
could be of either stock.
    The take NMFS proposes for authorization can be found in table 2, 
below. Table 2 presents the results of Orsted's updated density-based 
calculations for the Project Area. For comparative purposes, we have 
provided the 2022 IHA authorized take (87 FR 30182, May 18, 2022). No 
take by Level A harassment is anticipated. Therefore, NMFS has not 
proposed to authorized any take by Level A harassment. Mortality or 
serious injury (M/SI) is neither anticipated nor proposed to be 
authorized.

                                        Table 2--Estimated Take Numbers and Total Take Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Take                            Total      Estimated take
                                                                             Estimated      authorized         Total      estimated take       as a
                Common name                             Stock                abundance    under previous    calculated     proposed for    percentage of
                                                                                             2023 IHA          take        authorization    population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic Right Whale................  Western Atlantic............             340              11               4               4            1.18
Fin Whale.................................  Western N Atlantic..........           6,802               7               6               6              <1
Humpback Whale............................  Gulf of Maine...............           1,396               4               5               5              <1
Minke Whale...............................  Canadian Eastern Coastal....          21,968               2              10              10              <1
Sei Whale.................................  Nova Scotia.................           6,292               1               1               1              <1
Sperm Whale...............................  N Atlantic..................           5,895               3               0           \a\ 2              <1
Long-Finned Pilot Whale...................  Western N Atlantic..........          39,215              20               1           \a\ 8              <1
Atlantic Spotted Dolphin..................  Western N Atlantic..........          31,506              15               6          \a\ 24              <1
Atlantic White-Sided Dolphin..............  Western N Atlantic..........          93,233              50              16              16              <1
Bottlenose Dolphin \b\....................  Northern Migratory Coastal..           6,639           2,752           4,118       \c\ 4,118            62.0
Bottlenose Dolphin \b\....................  Western N Atlantic Offshore.          64,587           2,752           4,118       \c\ . . .              <7
Risso's Dolphin...........................  Western N Atlantic..........          44,067              20               1           \a\ 7              <1
Common Dolphin............................  Western N Atlantic..........          93,100             400              98         \a\ 302              <1
Harbor Porpoise...........................  Gulf of Maine/Bay of Fundy..          85,765              82              79              79              <1
Gray Seal.................................  Western N Atlantic..........          27,911               4              13          \d\ 13              <1
Harbor Seal...............................  Western N Atlantic..........          61,336               4              13          \a\ 13              <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Adjustments to the requested take numbers for the marked species are based on the average group size from AMAPPS survey data (NEFSC, 2023) and
  recommended values represent averages of all AMAPPS sightings, for species for which the calculated take was lower than the estimated group size,
  except common dolphins. For common dolphins, the AMAPPS group size was used in conjunction with the number of encounters of common dolphin groups in
  past PSO reports.
\b\ Take estimate is based on the maximum number of calculated instances of take for either stock and is assumed to apply to all bottlenose dolphins
  potentially present in the survey area. Therefore, takes could consist of individuals from either the WNA Offshore or the WNA Northern Migratory
  Coastal stock.
\c\ Although unlikely, for purposes of calculating maximum percentage of population, we assume all takes could be allocated to either stock (i.e., total
  estimated take for ``bottlenose dolphins'' is 4,118) and that multiple repeated takes of the same individuals from each stock may occur. Please see
  Preliminary Determinations for additional information.
\d\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
  equally in the survey area; therefore, density values were split evenly between the two species, i.e., total estimated take for ``seals'' is 13.

Description of Proposed Mitigation, Monitoring, and Reporting Measures

    The proposed mitigation measures, and proposed monitoring and 
reporting requirements are identical to those included in the Federal 
Register notice announcing the final 2022 IHA (87 FR 30182, May 18, 
2022), and the discussion of the least practicable adverse impact 
included in that document remains accurate. The measures proposed for 
inclusion in this authorization are found below.

Proposed Mitigation

    The following mitigation measures will be implemented during 
Orsted's marine site characterization surveys. Pursuant to section 7 of 
the ESA, Orsted will also be required to adhere to relevant Project 
Design Criteria (PDC) of the NMFS Greater Atlantic Regional Office 
(GARFO) programmatic consultation (specifically PDCs 4, 5, and 7) 
regarding geophysical surveys along the U.S. Atlantic coast (see NOAA 
GARFO, 2021; 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).

Marine Mammal Exclusion Zones and Harassment Zones

    Marine mammal exclusion zones (EZs) will be established around the 
HRG survey equipment and monitored by NMFS-approved PSOs:
     500 m EZ for NARWs during operation of specified acoustic 
sources (e.g., sparkers, boomers); and
     100 m EZ for all other marine mammals, with certain 
exceptions (see Shutdown Procedures), during operation of specified 
acoustic sources (e.g., sparkers, boomers).
    If a marine mammal is detected approaching or entering the EZs 
during the HRG survey, the vessel operator will adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
These stated requirements will be included in the site-specific 
training to be provided to the survey team. The Level B harassment 
zones for each sound source are listed in table 3 and remain the same 
as the initial IHA (see table 4 of the Federal Register notice of the 
final authorization (87 FR 30182, May 18, 2022)).

                    Table 3--Level B Harassment Zones
------------------------------------------------------------------------
                                                            Distance to
                                                              Level B
                        Equipment                           harassment
                                                           threshold (m)
------------------------------------------------------------------------
ET 216 CHIRP............................................               9
ET 424 CHIRP............................................               4
ET 512i CHIRP...........................................               6
GeoPulse 5430...........................................              21
TB CHIRP III............................................              48
Pangeo SBI..............................................              22
AA Triple plate S-Boom (700/1,000 J)....................              34
AA, Dura-spark UHD Sparkers.............................             141
GeoMarine Sparkers......................................             141
------------------------------------------------------------------------
Note: AA = Applied Acoustics; CHIRP = compressed high-intensity radiated
  pulses; ET = edgetech; J = joule; SBI = sub-bottom imager; TB =
  Teledyne benthos; UHD = ultra-high definition.


[[Page 46080]]

Pre-Start Clearance

    Marine mammal clearance zones will be established around the HRG 
survey equipment and monitored by PSOs:
     500 m for all ESA-listed marine mammals; and
     100 m for all other marine mammals.
    Orsted will implement a 30-minute pre-start clearance period prior 
to the initiation of ramp-up of specified HRG equipment. During this 
period, clearance zones will be monitored by 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 EZ or until an additional time period 
has elapsed with no further sighting (i.e., 15 minutes for small 
odontocetes and pinnipeds, 30 minutes for all other species).

Ramp-Up of Survey Equipment

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
acoustic source when technically feasible. The ramp-up procedure will 
be used at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the survey area by 
allowing them to vacate the area prior to the commencement of survey 
equipment operation at full power. Operators should ramp-up sources to 
half power for 5 minutes and then proceed to full power.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective EZ. Ramp-up will resume if the animal has been observed 
exiting its respective EZ or until an additional time period has 
elapsed with no further sighting (i.e., 15 minutes for small 
odontocetes and pinnipeds, 30 minutes for all other species).
    Ramp-up may occur at times of poor visibility, including nighttime, 
if appropriate visual monitoring has occurred with no detections of 
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic 
source activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.

Shutdown Procedures

    An immediate shutdown of the impulsive HRG survey equipment (i.e., 
sparkers, boomers) will be required if a marine mammal is sighted 
entering or is within its respective EZ. The vessel operator must 
comply immediately with any call for shutdown by the Lead PSO. Any 
disagreement between the Lead PSO and vessel operator should be 
discussed only after shutdown has occurred. Subsequent restart of the 
survey equipment can be initiated if the animal has been observed 
exiting its respective EZ or until an additional time period has 
elapsed with no further sighting (i.e., 15 minutes for small 
odontocetes and pinnipeds, 30 minutes for all other species).
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorization 
number of takes have been met, approaches or is observed within the 
Level B harassment zone, shutdown must occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective EZs. If the acoustic source is shut down for a period 
longer than 30 minutes, then pre-clearance and ramp-up procedures will 
be initiated as described in the previous section.
    The shutdown requirement will be waived for pinnipeds and for small 
delphinids of the following genera: Delphinus, Lagenorhynchus, 
Stenella, and Tursiops. Specifically, if a delphinid from the specified 
genera or a pinniped is visually detected approaching the vessel (i.e., 
to bow ride) or towed equipment, shutdown is not required. Furthermore, 
if there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived), PSOs must use best 
professional judgment in making the decision to call for a shutdown. 
Additionally, shutdown is required if a delphinid or pinniped is 
detected in the EZ and belongs to a genus other than those specified.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., side-scan sonar, echosounders) other than non-parametric sub-
bottom profilers (e.g., CHIRPs).

Vessel Strike Avoidance

    Orsted must adhere to the following measures except in the case 
where compliance will create an imminent and serious threat to a person 
or vessel or to the extent that a vessel is restricted in its ability 
to maneuver and, because of the restriction, cannot comply:
     Vessel operators and crews must maintain a vigilant watch 
for all marine mammals and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any marine mammal. A visual observer aboard the vessel must monitor a 
vessel strike avoidance zone based on the appropriate separation 
distance around the vessel. Visual observers monitoring the vessel 
strike avoidance zone may be third-party observers (i.e., PSOs) or crew 
members, but crew members responsible for these duties must be provided 
sufficient training to (1) distinguish protected species from other 
phenomena, and (2) broadly identify a marine mammal as a right whale, 
other whale (defined in this context as sperm whales or baleen whales 
other than right whales), or other marine mammal;
     All survey vessels, regardless of size, must observe a 10 
kn (18.5 km/hr) speed restriction in specified areas designated by NMFS 
for the protection of NARWs from vessel strikes. These specified areas 
include all seasonal management areas (SMA) established under 50 CFR 
224.105 (when in effect), any dynamic management areas (DMA) (when in 
effect), and Slow Zones. See: https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales for specific detail regarding these areas;
     All vessels must reduce speed to 10 kn (18.5 km/hr) or 
less when mother/calf pairs, pods, or large assemblages of cetaceans 
are observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from right whales and other ESA-listed large whales;
    [cir] If an ESA-listed species is sighted within the relevant 
separation distance, the vessel must steer a course away at 10-kn (18.5 
km/hr) or less until the 500-m separation distance has been 
established. If a whale is observed but cannot be confirmed as a 
species that is not ESA-listed, the vessel operator must assume that it 
is an ESA-listed species and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from non-ESA-listed baleen whales;
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel); and
     When marine mammals are sighted while a vessel is 
underway, the vessel

[[Page 46081]]

shall take action as necessary to avoid violating the relevant 
separation distance (e.g., attempt to remain parallel to the animal's 
course, avoid excessive speed or abrupt changes in direction until the 
animal has left the area).
    [cir] If marine mammals are sighted within the relevant separation 
distance, the vessel must reduce speed and shift the engine to neutral, 
not engaging the engines until animals are clear of the area. This does 
not apply to any vessel towing gear or any vessel that is 
navigationally constrained.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered to by NMFS, NMFS has preliminarily 
determined that the mitigation measures provide the means of effective 
the least practicable impact on marine mammal species or stocks and 
their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Orsted will employ 
independent, dedicated, trained PSOs, meaning that the PSOs must (1) be 
employed by a third-party observer provider, (2) have no tasks other 
than to conduct observational effort, collect data, and communicate 
with and instruct relevant vessel crew with regard to the presence of 
marine mammals and mitigation requirements (including brief alerts 
regarding maritime hazards), and (3) have successfully completed an 
approved PSO training course appropriate for their designated task. On 
a case-by-case basis, trained crew members may be approved by NMFS for 
limited, specified duties in support of approved, independent PSOs on 
smaller vessels with limited crew operating in nearshore waters.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including EZs, during all HRG survey operations. PSOs will 
visually monitor and identify marine mammals, including those 
approaching or entering the established EZs during survey activities. 
It will be the responsibility of the Lead PSO on duty to communicate 
the presence of marine mammals as well as to communicate the action(s) 
that are necessary to ensure mitigation and monitoring requirements are 
implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels 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. The PSO(s) will ensure 360 degree visual coverage around 
the vessel from the most appropriate observation posts and will conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs may be on watch for a maximum of 
4 consecutive hours followed by a break of at least 2 hours between 
watches and may conduct a maximum of 12 hours of observations per 24-hr 
period. In cases where multiple vessels are surveying concurrently, any 
observations of marine mammals will be communicated to PSOs on all 
nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to EZs. Reticulated binoculars must also be available to PSOs 
for use as appropriate based on conditions and visibility to support 
the sighting and monitoring of marine mammals. During nighttime 
operations, night-vision goggles with thermal clip-ons and infrared 
technology will be used. Position data will be recorded using hand-held 
or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs will also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey will be relayed to 
the PSO team. Data on all PSO observations will be recorded based on 
standard PSO collection requirements. This will include dates, times, 
and locations of survey operations; dates and times of observations, 
location and weather, details of marine mammal sightings (e.g., 
species, numbers, behaviors); and details of any observed marine mammal 
behavior that occurs (e.g., notes behavioral disturbances).
    Orsted must consult NMFS NARW reporting system and Whale Alert, 
daily and as able, for the presence of NARWs throughout survey 
operations, and for the establishment of a DMA. If NMFS should 
establish a DMA in the Lease Areas during the survey, the vessels will 
abide by speed restrictions in the DMA.
    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a draft comprehensive report will 
be provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys including what type of mitigation and the species and number of 
animals that prompted the mitigation action, when known), and provides 
an interpretation of the results and effectiveness of all mitigation 
and monitoring. Any recommendations made by NMFS must be addressed in 
the final report prior to acceptance by NMFS. A final report must be 
submitted within 30 days following any comments on the draft report. 
All draft and final marine mammal and acoustic monitoring reports must 
be submitted to [email protected] and 
[email protected]. The report must contain at minimum, the 
following:
     PSO names and affiliations;
     Dates of departures and returns to port with port names;
     Dates and times (Greenwich Mean Time (GMT)) of survey 
effort and times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, BSS, Beaufort wind 
force, swell height, weather conditions, cloud cover, sun glare, and 
overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and

[[Page 46082]]

     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
     Estimated number of animals (high/low/best);
     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
     Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a NARW is observed at any time by PSOs or personnel on any 
project vessels, during surveys or during vessel transit, Orsted must 
report the sighting information to the NMFS NARW Sighting Advisory 
System (866-755-6622) within 2 hours of occurrence, when practicable, 
or no later than 24 hours after occurrence. NARW sightings in any 
location may also be reported to the U.S. Coast Guard via channel 16 
and through the WhaleAlert app (https://www.whalealert.org/).
    In the event that Orsted personnel discover an injured or dead 
marine mammal, Orsted will report the incident to the NMFS Office of 
Protected Resources (OPR) and the NMFS New England/Mid-Atlantic 
Stranding Coordinator as soon as feasible. The report will include the 
following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the unanticipated event of a vessel strike of a marine mammal by 
any vessel involved in these activities covered by the IHA, Orsted will 
report the incident to NMFS by phone (866-755-6622) and by email 
([email protected] and 
[email protected]) as soon as feasible. The report will 
include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
BSS, cloud cover, visibility) immediately preceding the strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     To the extent practicable, photographs or video footage of 
the animal(s).

Preliminary Determinations

    Orsted's HRG survey activities are unchanged from those analyzed in 
support of the 2022 IHA. When issuing the 2022 IHA (87 FR 30182, May 
18, 2022) and 2023 reissuance of that IHA, NMFS found Orsted's proposed 
HRG surveys would have a negligible impact to species or stocks' annual 
rates of recruitment and survival, and the amount of taking would be 
small relative to the population size of such species or stocks. 
Additionally, the potential effects of the activities, taking into 
consideration the proposed mitigation and related monitoring measures, 
are identical to those calculated in support of the 2022 IHA. NMFS 
expects that all potential takes would be short-term Level B behavioral 
harassment, predominantly in the form of avoidance of the sound sources 
that may cause a temporary abandonment of the location during active 
use of acoustic sources that may result in a temporary interruption of 
foraging activities for some species (if such activity was occurring), 
reactions that are considered to be of low severity and with no lasting 
biological consequences (e.g., Southall et al., 2007). NMFS does not 
expect that the proposed activity will have long-term or permanent 
impacts as the acoustic sources would be mobile and would leave the 
area within a specific amount of time for which the animals could 
return to the area.
    Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the survey 
area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations. Even 
considering the increased estimated take for some species, the impacts 
of these lower severity exposures are not expected to accrue to a 
degree that the fitness of any individuals would be impacted and, 
therefore, no impacts on the annual rates of recruitment or survival 
would result.

[[Page 46083]]

    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141 m from use of sparkers. Although 
this distance is assumed for all survey activity evaluated here and in 
estimating take numbers proposed for authorization, in reality, much of 
the survey activity would involve use of acoustic sources with reduced 
acoustic harassment zones (see tables 1 and 4 in the previous Federal 
Register notices (87 FR 15922, March 21, 2022; 87 FR 30182, May 18, 
2022)), producing expected effects of particularly low severity. The 
ensonified area surrounding each vessel is extremely small compared to 
the overall distribution of the animals in the area and the available 
habitat.
    As previously discussed in the 2022 IHA (87 FR 15922, March 21, 
2022; 87 FR 30182, May 18, 2022), impacts from the survey are expected 
to be localized to the specific area of activity and only during 
periods when Orsted's acoustic sources are active. There are no 
rookeries, mating or calving grounds known to be biologically important 
to marine mammals within the proposed survey area. The survey area lies 
significantly south (over 250 miles (402 km)) of where Biologically 
Important Areas are defined for fin and humpback whales. There is no 
designated critical habitat for any marine mammals listed under the 
Endangered Species Act (ESA) in the survey area.
    There is a slight increase in estimated take for 5 species 
(humpback whale, minke whale, Atlantic spotted dolphin, gray seal, 
harbor seal) relative to those authorized under the 2022 IHA but the 
total amount of takes proposed for authorization are small (less than 1 
percent) relative to estimated population size of each species or 
stock. Additionally, due to updated information in the draft 2023 SAR 
on the stock abundance of the WNA stock of common dolphins, there is a 
minor increase in the estimated take as a percentage of that stock, 
however, that also results in estimated take of less than 1 percent of 
the population. Even considering the increased estimated take for 5 
species, the impacts of these lower severity exposures are not expected 
to accrue to a degree that the fitness of any individuals would be 
impacted, and therefore, no impacts on the annual rates of recruitment 
or survival are expected to result. Overall, the total amount of takes 
proposed for authorization are small (less than 1 percent) relative to 
estimated population size of each species or stock (less than 1 percent 
for 13 species; less than 2 percent for NARW; less than 7 percent for 
the WNA Offshore stock of bottlenose dolphin) except for the WNA 
Migratory Coastal stock of bottlenose dolphin (62 percent). The values 
presented in table 2 are likely conservative estimates as they assume 
all takes are of different individual animals which is likely not to be 
the case. Some individuals may return multiple times in a day, but PSOs 
will count them as separate takes if they cannot be individually 
identified. This is the particularly the case for bottlenose dolphins. 
Given the uncertainty regarding the number of days Orsted's survey may 
be within the 20 m isobath, the authorization of 4,118 instances of 
take by Level B harassment is not allocated to a specific stock but 
rather could be of either stock. However, based on the expansive ranges 
of both bottlenose dolphin stocks and the stocks' respective occurrence 
in the area, it is unlikely that large segments of either stock would 
consistently remain in the survey area. Considering this and various 
factors as described in the previous Federal Register notices (87 FR 
15922, March 21, 2022; 87 FR 30182, May 18, 2022), we have determined 
that the number of individuals taken will comprise of less than one-
third of the best available population abundance estimate of either 
stock.
    Orsted's proposed activities would occur in a small fraction of the 
migratory corridor for NARW and impacts are expected to be limited to 
low levels of behavioral harassment, resulting in temporary and minor 
behavioral changes during any brief period of exposure. The size of the 
Project Area (approximately 4,510 km\2\) in comparison with the entire 
migratory habitat for the NARW (Biologically Important Area of 269,448 
km\2\) is small, representing 1.67 percent of the entire migratory 
corridor. 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.
    Given the transitory nature of NARW in this area and due to the 
lack of year-round ``core'' NARW foraging habitat (Oleson et al., 2020) 
(such habitat is located further north in the southern area of Martha's 
Vineyard and Nantucket Islands where both visual and acoustic 
detections of NARW indicate a nearly year-round presence (Oleson et 
al., 2020)), it is unlikely for any exposure to cause chronic effects 
as any exposure would be short and intermittent. Furthermore, given the 
small size of the Level B harassment zones (141 m) and the robust suite 
of mitigation and monitoring measures proposed by NMFS, with specific 
note on the mitigation zones for NARW (EZ; 500 m), NMFS does not expect 
adverse impacts on this species. Lastly, NMFS notes the reduction in 
requested take from the 2022 IHA (87 FR 15922, March 21, 2022; 87 FR 
30182, May 18, 2022) due to the revised density data (Roberts et al., 
2023). Under the 2022 IHA, NMFS authorized 11 instances of take for 
NARW. Here, NMFS is proposing only 4 takes by Level B harassment 
representing less than 2 percent of the overall species abundance. 
Given the updates to the density for this species, in particular during 
the periods where project activities are expected to be ongoing, NMFS 
expects low-level impacts (e.g., temporary avoidance of the area) from 
this proposed project on NARW.
    We also note that our findings for other species with active UMEs 
or species where biologically important areas or haul-outs have been 
previously described in the Federal Register notices associated with 
issuance of the 2022 IHA remain applicable to this project. In 
conclusion, there is no new information suggesting that our analysis or 
findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily 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 proposed 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the proposed 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.

Endangered Species Act

    Section 7(a)(2) of the ESA 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 whenever we propose to authorize take for endangered or 
threatened species.
    NMFS is proposing to authorize the incidental take of four species 
of marine mammals which are listed under the ESA, the North Atlantic 
right, fin, sei,

[[Page 46084]]

and sperm whale, and has preliminarily determined that this activity 
falls within the scope of activities analyzed in NMFS Greater Atlantic 
Regional Fisheries Office'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).

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Orsted for conducting marine site characterization 
surveys off the coast of Delaware for a period of 1 year, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. A draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses (included in both this document 
and the referenced documents supporting the 2022 IHA), the proposed 
authorization, and any other aspect of this notice of proposed IHA for 
the proposed marine site characterization surveys. We also request 
comment on the potential for renewal of this proposed IHA as described 
in the paragraph below. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.
    On a case-by-case basis, NMFS may issue a one-time, 1-year renewal 
IHA following notice to the public providing an additional 15 days for 
public comments when (1) up to another year of identical or nearly 
identical, or nearly identical, activities as described in the 
Description of the Proposed Activity and Anticipated Impacts section of 
this notice is planned or (2) the activities as described in the 
Description of the Proposed Activity and Anticipated Impacts section of 
this 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, provided 
all of the following conditions are met:
     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 1 year from expiration 
of the initial IHA).
     The request for renewal must include the following:
    (1) 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).
    (2) 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.
     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.

    Dated: May 21, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-11537 Filed 5-24-24; 8:45 am]
BILLING CODE 3510-22-P