Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off the Coast of Delaware, 61403-61414 [2024-16788]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 147 (Wednesday, July 31, 2024)]
[Notices]
[Pages 61403-61414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16788]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE016]


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 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Orsted Wind Power North America, LLC (Orsted) to incidentally harass 
marine mammals during 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 Areas OCS-A 0482 
and 0519 (Lease Areas), and the associated export cable route (ECR) 
area.

DATES: This authorization is effective from August 1, 2024, through 
July 31, 2025.

ADDRESSES: Electronic copies of the application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, 
please call the contact listed below.

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 proposed or, if the taking is limited to harassment, a notice of a 
proposed IHA is provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
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 the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the monitoring and 
reporting of the takings. The definitions of all applicable MMPA 
statutory terms cited above are included in the relevant sections 
below.

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 effective dates of 
that IHA 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.
    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

[[Page 61404]]

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 planned mitigation, monitoring, and 
requirements remained 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 due to availability of 
substantially updated marine mammal density data for all species since 
issuance of the 2022 IHA (https://seamap.env.duke.edu/models/Duke/EC/ EC/
), which NMFS determined represents the best available scientific data 
and which 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). There are 
no changes from the proposed IHA to the final IHA.

Description of the Activity and Anticipated Impacts

Overview

    Orsted will 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 planned 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 IHA covers the same specified activities 
previously described in Orsted's application for the 2022 IHA and 
subsequent documents. NMFS refers the public to the documents and 
supplemental materials related to the 2022 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), the notice of re-
issuance of that IHA (88 FR 30278, May 11, 2023), and 2024 notice of 
proposed IHA (89 FR 46073, May 28, 2024). The descriptions and analyses 
contained in those documents remain accurate with the exception of the 
minor modifications described herein.

Dates and Duration

    The specified activities are planned to begin August 1, 2024. The 
duration of the planned activity remains unchanged from the 2022 IHA 
and the re-issued 2023 IHA and 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 planned 
activities will occur within the Project Area, which includes the Lease 
Areas and potential ECRs to landfall locations in Delaware. The 
combined Lease Areas OCS-A 0482 and 0519 comprise 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\. 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.

Detailed Description of the Specified Activity

    A detailed description of the planned 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 (e.g., 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.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Orsted was published 
in the Federal Register on May 28, 2024 (89 FR 46073). That notice 
described, in detail, Orsted's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals while referencing the previous notices (87 FR 15922; March 21, 
2022; 87 FR 30182, May 18, 2022; 88 FR 30278, May 11, 2023). In the May 
28, 2024, notice, we requested public input on the request for 
authorization described therein, our analyses, the proposed 
authorization, and requested that interested persons submit relevant 
information, suggestions, and comments. This proposed notice was 
available for a 30-day public comment period.
    In total, NMFS received three comments from two private citizens 
and from an organization (Clean Ocean Action (COA)). Some of these 
comments were out-of-scope or not applicable to the project (e.g., 
general opposition to offshore wind projects, concerns for other 
species outside NMFS' jurisdiction) and are not described herein or 
discussed further. 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 IHA (89 FR 
46073, May 28, 2024), such as comments on other Federal agency 
processes and activities not planned under this IHA.
    All comments received during the public comment period which

[[Page 61405]]

contained relevant points were considered by NMFS and are described and 
responded to below. All relevant comment letters are available on NMFS' 
website (https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llcs-site-characterization).
    Comment 1: COA disagrees with NMFS' initial conclusion that 
National Environmental Policy Act (NEPA) Categorical Exclusion B4 is 
applicable to this action due to (1) uncertainty regarding the 
environmental impacts of the action, (2) a lack of justification 
regarding how this action does not cumulatively have the potential for 
significant impacts on the quality of the environment, and (3) a lack 
of justification as to why no extraordinary circumstances apply to this 
action.
    Response: NMFS does not agree with the commenters. A categorical 
exclusion (CE) is a category of actions that an agency has determined 
does not individually or cumulatively have a significant effect on the 
quality of the human environment and is appropriately applied for such 
categories of actions so long as there are no extraordinary 
circumstances present that would indicate that the effects of the 
action may be significant. Extraordinary circumstances are situations 
for which NOAA has determined further NEPA analysis is required because 
they are circumstances in which a normally excluded action may have 
significant effects. A determination of whether an action that is 
normally excluded requires additional evaluation because of 
extraordinary circumstances focuses on the action's potential effects 
and considers the significance of those effects in terms of both 
context (consideration of the affected region, interests, and 
resources) and intensity (severity of impacts). Potential extraordinary 
circumstances relevant to this action include (1) adverse effects on 
species or habitats protected by the MMPA that are not negligible; (2) 
highly controversial environmental effects; (3) environmental effects 
that are uncertain, unique, or unknown; and (4) the potential for 
significant cumulative impacts when the proposed action is combined 
with other past, present, and reasonably foreseeable future actions.
    The relevant NOAA CE associated with issuance of incidental take 
authorizations is CE B4, issuance of incidental harassment 
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the 
incidental, but not intentional, take by harassment of marine mammals 
during specified activities and for which no serious injury or 
mortality is anticipated. This action falls within CE B4. In 
determining whether a CE is appropriate for a given incidental take 
authorization, NMFS considers the applicant's specified activity and 
the potential extent and magnitude of takes of marine mammals 
associated with that activity along with the extraordinary 
circumstances listed in the Companion Manual for NOAA Administrative 
Order (NAO) 216-6A and summarized above.
    The issuance of this IHA will not result in highly controversial 
environmental effects or result in environmental effects that are 
uncertain, unique, or unknown because numerous entities have been 
engaged in site characterization surveys that result in Level B 
harassment of marine mammals in the United States. This type of 
activity is well documented; prior authorizations and analysis 
demonstrate issuance of an IHA for this type of action only affects the 
marine mammals that are the subject of the specific authorization and, 
thus, no potential for significant cumulative impacts are expected, 
regardless of past, present, or reasonably foreseeable actions, even 
though the impacts of the action may not be significant by itself. 
Based on this evaluation, we concluded that the issuance of the IHA 
qualifies to be categorically excluded from further NEPA review.
    The evaluation of whether extraordinary circumstances (if present) 
have the potential for significant environmental effects is limited to 
the decision NMFS is responsible for, which is issuance of the 
incidental take authorization. While there may be environmental effects 
associated with the underlying action, potential effects of NMFS' 
action are limited to those that would occur due to the authorization 
of incidental take of marine mammals. NMFS prepared numerous EAs 
analyzing the environmental impacts of the categories of activities 
encompassed by CE B4, which resulted in Findings of No Significant 
Impacts (FONSI) and, in particular, numerous EAs prepared in support of 
issuance of IHAs related to similar survey actions are part of NMFS' 
administrative record supporting CE B4. These EAs demonstrate the 
issuance of a given incidental harassment authorization does not affect 
other aspects of the human environment because the action only affects 
the marine mammals that are the subject of the incidental harassment 
authorization. These EAs also addressed factors in 40 CFR 1508.27 
regarding the potential for significant impacts and demonstrate the 
issuance of incidental harassment authorization for the categories of 
activities encompassed by CE B4 do not individually or cumulatively 
have a significant effect on the human environment.
    Specifically for this action, NMFS independently evaluated the use 
of the CE for issuance of Orsted's IHA, which included consideration of 
extraordinary circumstances. As part of that analysis, NMFS considered 
whether this IHA issuance would result in cumulative impacts that could 
be significant. In particular, the issuance of an IHA to Orsted is 
expected to result in minor, short-term behavioral effects on marine 
mammal species due to exposure to underwater sound from site 
characterization survey activities. Behavioral disturbance is expected 
to occur intermittently in the vicinity of Orsted's survey area during 
the 1-year timeframe. Level B harassment will be reduced through use of 
mitigation measures described herein. Additionally, as discussed 
elsewhere, NMFS has determined that Orsted's activities fall within the 
scope of activities analyzed in the Greater Atlantic Regional Office's 
(GARFO) programmatic consultation regarding geophysical surveys along 
the U.S. Atlantic coast in the 3 Atlantic Renewable Energy Regions 
(completed June 29, 2021; revised September 2021), which concluded 
surveys such as those planned by Orsted are not likely to adversely 
affect ESA-listed species or adversely modify or destroy critical 
habitat. Accordingly, NMFS has determined that the issuance of this IHA 
will result in no more than negligible (as that term is defined by the 
Companion Manual for NAO 216-6A) adverse effects on species protected 
by the ESA and the MMPA.
    Comment 2: COA noted a preliminary monitoring report by the 
applicant was not made publicly available with the supporting documents 
on the project website and that NMFS should make monitoring and 
compliance reports publicly available with a schedule of when such 
reports will be released.
    Response: The preliminary report submitted by the applicant and 
noted in the Federal Register notice (89 FR 46073, May 28, 2024) 
proposing this action was a requirement under the BOEM Project Design 
Criteria (PDC) and Best Management Practices (PDC 8), not the final 
reporting requirements under the 2023 IHA (88 FR 30278, May 11, 2023), 
therefore, it was not made publicly available. NMFS agrees with the 
need for reporting and indeed, the MMPA calls for IHAs to incorporate 
reporting requirements and a final

[[Page 61406]]

marine mammal monitoring report is required for the 2023 IHA. As 
included in the proposed IHA, the final IHA includes requirements for 
reporting that supports COA's recommendations, as well as timeframes 
for when reports will be considered complete and subsequently made 
publicly available. Orsted is required to submit a monitoring report to 
NMFS within 90 days after completion of survey activities that fully 
documents the methods and monitoring protocols, summarizes the data 
recorded during monitoring. All final reports and associated data 
submitted to NMFS are included on the website for public inspection. 
However, NMFS does not concur with the suggestions that draft reports 
be made publicly available.
    Comment 3: COA provided comments suggesting that this IHA is a 
renewal. COA also noted that multiple IHAs, including renewals, have 
been requested by Orsted for the same project activities and stated 
that, in circumstances when it is not clear how long the proposed 
activities would span, a Letter of Authorization (LOA) is more 
appropriate than an IHA. COA stated that, given past delays, it is not 
clear how long the proposed activities would occur and that it is 
unrealistic and unreasonable to expect survey activities will actually 
cease after 1 year.
    Response: As NMFS stated in the notice of the proposed IHA, the 
proposed action for which we requested comments was not for a renewal 
IHA. As described in the proposed Federal Register notice (89 FR 46073, 
May 28, 2024), we determined that a renewal IHA was not appropriate due 
to the release of comprehensively updated Duke University density 
information (Roberts et al., 2023). Instead, we have issued a new IHA 
relying substantially on information and analysis produced in support 
of the previously issued 2022 IHA, as project details remain the same 
(also as described in the proposed Federal Register notice (89 FR 
46073, May 28, 2024)). As we noted in the proposed notice and in this 
final notice for the 2024 IHA, Orsted has the option for a renewal if 
specific conditions and criteria are met.
    Regarding clarification on authorizations, as described on our 
website, IHAs are 1-year authorizations and Incidental Take Regulations 
(ITR) are 5-year regulations that allow for the issuance of LOA. An ITR 
must be used if authorization of take by mortality is necessary. 
However, both options are available for applicants requesting 
authorization of harassment only. While applicants may request a 5-year 
regulation for HRG survey activities, NMFS has not received any such 
requests to date and there is no expectation presented in the MMPA or 
Congressional record that activities continuing for more than 1 year 
must seek ITR and authorization under 101(a)(5)(A) of the MMPA. 
Therefore, a determination of which option to take is not dependent on 
any expectation regarding whether the activity will continue for more 
than 1 year or not.
    Comment 4: COA stated the information provided in the proposed (89 
FR 46073, May 28, 2024) and previous notices (87 FR 15922; March 21, 
2022; 87 FR 30182, May 18, 2022; 88 FR 30278, May 11, 2023) for this 
action regarding vessel strike is insufficient for NMFS to claim the 
probability of vessel strike due to HRG survey vessels is low enough to 
be discountable. COA noted the North Atlantic Right Whale (NARW) Speed 
Zone Dashboard does not clearly indicate whether HRG survey vessels are 
included and which vessel type category HRG survey vessels fall under, 
nor does the proposed notice specify the number of trips HRG survey 
vessels would take to complete the survey activities. COA stated this 
IHA cannot be issued without consideration and correction of these 
issues.
    Response: Orsted did not request authorization for take incidental 
to vessel strike during marine site characterization surveys. 
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 does not authorize any take of 
marine mammals incidental to vessel strike resulting from the survey. 
If Orsted were to strike a marine mammal with a vessel, this would be 
an unauthorized take and be in violation of the MMPA. This gives Orsted 
a strong incentive to operate its vessels with all due caution and to 
effectively implement the suite of vessel strike avoidance measures 
called for in the IHA. Orsted proposed a very conservative suite of 
mitigation measures related to vessel strike avoidance, including 
measures specifically designed to avoid impacts to NARWs. Section 4(f) 
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 vessels from surveys reporting a vessel strike within 
the United States despite intensive requirements for visual monitoring 
at all times during survey activity. When considered in the context of 
low overall probability of any vessel strike by Orsted vessels, given 
the limited additional survey-related vessel traffic relative to 
existing traffic in the survey area, the comprehensive visual 
monitoring, and other additional mitigation measures described herein, 
NMFS believes these measures are sufficiently protective to avoid 
vessel strike. These measures are described fully in the Mitigation 
section below, and include, but are not limited to: training for all 
vessel observers and captains, daily monitoring of NARW Sighting 
Advisory System, WhaleAlert app, and U.S. Coast Guard Channel 16 for 
situational awareness regarding NARW presence in the survey area, 
communication protocols if whales are observed by any Orsted personnel, 
vessel operational protocol should any marine mammal be observed, and 
visual monitoring.
    Comment 5: COA believes that preserving the existence of NARW 
warrants pausing offshore development off the Atlantic coast and states 
NMFS needs to consider the cumulative impact, including the total 
number, speed, and distance of vessel trips required for marine site 
characterization survey activities, for all concurrent projects in the 
region and adjust the permitted activities accordingly.
    Response: NMFS reiterates our action concerns only the 
authorization of marine mammal take incidental to the planned surveys--
NMFS' authority under the MMPA does not extend to the specified 
activities themselves. COA did not provide any new or compelling 
evidence that suggests that wind energy development activities have the 
potential to negatively impact NARW. NMFS notes 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 
engaged in formal intra-agency consultation, such as the 2013 
programmatic Biological Opinion for Bureau of Ocean Energy Management 
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 IHA request.
    NMFS reiterates that there is no evidence that acoustic noise 
resulting from offshore wind development-related activities could 
potentially cause marine mammal stranding, and there is no evidence 
linking recent marine mammal

[[Page 61407]]

mortalities an currently ongoing offshore wind development activities. 
This point has been well supported by other agencies, including the 
Bureau of Ocean Energy Management and the Marine Mammal Commission 
(Marine Mammal Commission Newsletter, Spring 2023). In addition, a 
recent study by Thorne and Wiley (2024) reviewed spatiotemporal 
patterns of strandings, mortalities, and serious injuries of humpback 
whales along the U.S. east coast from 2016-2022 and found vessel 
strikes to be the major driver in the increase of humpback whale 
strandings, mortalities, and serious injuries. Based upon the 
spatiotemporal analysis, no evidence was found that offshore wind 
development played a role in the increased number of strandings over 
time; for example, spatiotemporal patterns between strandings and site 
assessment surveys did not seem associated. In fact, the potential for 
vessel strike increased from 2016-2022 in association with increased 
container vessel traffic that overlapped with whales in new and shallow 
foraging areas. This potential for vessel strike also seemed to 
increase with the increased presence of juvenile humpback whales 
foraging off the Mid-Atlantic States. Under the IHA, NMFS requires 
Orsted to abide by vessel speed restrictions and maintain separation 
distances between vessels and marine mammals that are intended to 
minimize the risk of any potential vessel strikes.
    There is an ongoing 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) where 
responders had limited or no access to the carcasses. Of the roughly 90 
whales examined, about 40 percent had evidence of human interaction 
(i.e., vessel strike or entanglement). 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 (e.g., parasite-caused organ damage and starvation). Ongoing UMEs 
are also occurring for North Atlantic right whales and minke whales, 
both since 2017. NMFS will continue to gather data to help us determine 
the cause of death for these stranded whales. Vessel strikes and 
entanglement in fishing gear continue to be the greatest human threats 
to large whales.
    For NMFS' response on cumulative impacts, please see our response 
to Comment 1.

Changes From Proposed to Final IHA

    No changes were made from the proposed IHA to the final IHA.

Description of Marine Mammals in the Area of Specified Activities

    A description of the marine mammals in the area of the specified 
activities can 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 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 draft 2023 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 supporting 
issuance of 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 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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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey) \3\               SI \4\
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                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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).

[[Page 61408]]

 
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).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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...............  Gulf of Maine/Bay of     -, -, N             85,765 (0.53, 56,420,         649        145
                                                                Fundy.                                       2021).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    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).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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/).
\2\ 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 of Specified Activities 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 of Marine Mammals

    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/. 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/action/incidental-take-authorization-orsted-wind-power-north-america-llcs-site-characterization.
    The take NMFS has authorized 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 was requested and none is anticipated. Therefore, NMFS has 
not authorized any take by Level A harassment. Mortality or serious 
injury (M/SI) is neither anticipated nor authorized.

                                                Table 2--Estimated Take Numbers and Total Take Authorized
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               Take                                       Estimated take
                                                                             Estimated      authorized         Total        Authorized         as a
                Common name                             Stock                abundance    under previous    calculated         take        percentage of
                                                                                             2022 IHA          take                         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

[[Page 61409]]

 
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          \d\ 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
  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.

Mitigation, Monitoring, and Reporting Measures

    The mitigation measures, and 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 included in this authorization 
are found below.

Mitigation

    The following mitigation measures must be implemented during 
Orsted's marine site characterization surveys. Pursuant to section 7 of 
the ESA, Orsted must also be required to adhere to relevant Project 
Design Criteria (PDC) of the NMFS 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) must be established around the 
HRG survey equipment and monitored by NMFS-approved protected species 
observers (PSO):
     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 must adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
These stated requirements must 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.

Pre-Start Clearance
    Marine mammal clearance zones must 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 must implement a 30-minute pre-start clearance period prior 
to the initiation of ramp-up of specified HRG equipment. During this 
period, clearance zones must 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).

[[Page 61410]]

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 must 
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 must 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 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 must 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 determined that 
the mitigation measures provide the means of effective the least 
practicable impact on marine mammal species or stocks

[[Page 61411]]

and their habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance.

Monitoring and Reporting

    Visual monitoring must 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 must 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 must 
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
     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

[[Page 61412]]

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 must report the incident to the NMFS Office of 
Protected Resources (OPR) and the NMFS New England/Mid-Atlantic 
Stranding Coordinator as soon as feasible. The report 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 this 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).

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 planned mitigation and related monitoring measures, 
are identical to those assumed when considering 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 planned 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.
    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 
authorizing take numbers, 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

[[Page 61413]]

marine mammals within the 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 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 authorized 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 
authorized 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 planned 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, 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 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 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.

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 OPR is authorizing 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 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 3 Atlantic 
Renewable Energy Regions (completed June 29, 2021; revised September 
2021).

National Environmental Policy Act

    To comply with NEPA of 1969 (42 U.S.C. 4321 et seq.) and 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 (IHAs 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 determined that the 
issuance

[[Page 61414]]

of the IHA qualifies to be categorically excluded from further NEPA 
review.

Authorization

    NMFS has issued an IHA to Orsted for the potential harassment of 
small numbers of 15 species (16 stocks) of marine mammals incidental to 
conducting marine site characterization surveys off the coast of 
Delaware for a period of 1 year, that includes the previously explained 
mitigation, monitoring, and reporting requirements.

    Dated: July 25, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-16788 Filed 7-30-24; 8:45 am]
BILLING CODE 3510-22-P