[Federal Register Volume 86, Number 108 (Tuesday, June 8, 2021)]
[Notices]
[Pages 30435-30442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11904]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB067]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Offshore of Massachusetts, Rhode Island, Connecticut, and New 
York

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

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

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SUMMARY: NMFS received a request from Vineyard Wind, LLC (Vineyard 
Wind) for the Renewal of their currently active incidental harassment 
authorization (IHA) to take marine mammals incidental to marine site 
characterization survey activities off the coast of Massachusetts in 
the areas of the Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf (OCS-A 0501 and OCS-A 
0522) and along potential submarine cable routes to landfall locations 
in Massachusetts, Rhode Island, Connecticut, and New York. These 
activities consist of activities that are covered by the current 
authorization but will not be completed prior to its expiration. 
Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing 
the currently active IHA, NMFS requested comments on both the proposed 
IHA and the potential for renewing the initial authorization if certain 
requirements were satisfied. The Renewal requirements have been 
satisfied, and NMFS is now providing an additional 15-day comment 
period to allow for any additional comments on the proposed Renewal not 
previously provided during the initial 30-day comment period.

DATES: Comments and information must be received no later than June 23, 
2021.

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

FOR FURTHER INFORMATION CONTACT: Reny Tyson Moore, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, Renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), as well as a list of the 
references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of 
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) 
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce 
(as delegated to NMFS) to allow, upon request, the incidental, but not 
intentional, taking of small numbers of marine mammals by U.S. citizens 
who engage in a specified activity (other than commercial fishing) 
within a specified geographical region if certain findings are made and 
either regulations are proposed or, if the taking is limited to 
harassment, a notice of a proposed incidental take authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed one year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a Renewal for this activity and 
requested public comment on a potential Renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time, one-year Renewal IHA following notice to the public providing 
an additional 15 days for public comments when (1) up to another year 
of identical or nearly identical, or nearly identical, activities as 
described in the Detailed Description of Specified Activities section 
of the initial IHA issuance notice is planned or (2) the activities as 
described in the Detailed Description of Specified Activities section 
of the initial IHA issuance notice would not be completed by the time 
the initial IHA expires and a Renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    (1) A request for Renewal is received no later than 60 days prior 
to the needed Renewal IHA effective date (recognizing that the Renewal 
IHA expiration date

[[Page 30436]]

cannot extend beyond one year from expiration of the initial IHA).
    (2) The request for Renewal must include the following:
     An explanation that the activities to be conducted under 
the requested Renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
     A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    (3) Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed Renewal. A description of the Renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential Renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA Renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested Renewal, and agency responses will be 
summarized in the final notice of our decision.

National Environmental Policy Act

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

History of Request

    On May 06, 2020, NMFS issued an IHA to Vineyard Wind to take marine 
mammals incidental to marine site characterization survey activities 
off the coast of Massachusetts in the areas of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0501 and OCS-A 0522) and along potential 
submarine cable routes to landfall locations in Massachusetts, Rhode 
Island, Connecticut, and New York (85 FR 26940), effective from June 
01, 2020 through May 31, 2021. This IHA was re-issued on July 14, 2020 
with the only change being a change in effective dates from June 21, 
2020 through June 20, 2021 (85 FR 42357). On March 25, 2021, NMFS 
received a request for a Renewal of the re-issued IHA. As described in 
the request for Renewal IHA, the activities for which incidental take 
is requested consist of activities that are covered by the initial 
authorization but will not be completed prior to its expiration. As 
required, the applicant also provided a preliminary monitoring report 
(available at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act) which confirms that 
the applicant has implemented the required mitigation and monitoring, 
and which also shows that no impacts of a scale or nature not 
previously analyzed or authorized have occurred as a result of the 
activities conducted.

Description of the Specified Activities and Anticipated Impacts

    Vineyard Wind plans to conduct high-resolution geophysical (HRG) 
surveys in support of offshore wind development projects in the areas 
of Commercial Lease of Submerged Lands for Renewable Energy Development 
on the Outer Continental Shelf (#OCS-A 0501 and #OCS-A 0522) (Lease 
Areas) and along potential submarine cable routes to landfall locations 
in Massachusetts, Rhode Island, Connecticut, and New York. The purpose 
of the marine site characterization surveys is to obtain a baseline 
assessment of seabed/sub-surface soil conditions in the Lease Area and 
cable route corridors to support the siting of potential future 
offshore wind projects. Underwater sound resulting from Vineyard Wind's 
planned site characterization surveys has the potential to result in 
incidental take of 14 marine mammal species in the form of Level B 
behavioral harassment. Vineyard Wind requested a Renewal of the initial 
IHA that was re-issued by NMFS in July 2020 on the basis that the 
activities as described in the Specified Activities section of the 
initial IHA 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 the initial IHA.
    In their 2020 IHA application, Vineyard Wind estimated that it 
would take a year to complete the HRG surveys. This schedule was based 
on 24-hour operations and included potential down time due to inclement 
weather. With up to eight survey vessels operating concurrently, a 
maximum of 736 vessel days were anticipated. Each vessel would maintain 
a speed of approximately 3.5 knots (kn; 6.5 kilometers [km]/hour) while 
transiting survey lines and each vessel would cover approximately 100 
km per day. However, during the 2020-2021 survey season, Vineyard Wind 
completed only 184 vessel days of the 736 vessel days estimated to 
complete the work and only surveyed approximately 25 percent of the 
planned survey routes. Vineyard Wind predicts that a maximum of 552 
vessel days, with up to eight survey vessels operating concurrently, 
over 181 days will be required to survey the remaining routes, 
estimated to be approximately 55,200 km. The Renewal IHA would 
authorize harassment of marine mammals for this remaining survey 
distance using survey methods identical to those described in the 
initial IHA application; therefore, the anticipated effects on marine 
mammals and the affected stocks also remain the same. All active 
acoustic sources and mitigation and monitoring measures would remain as 
described in the Federal Register notices of the proposed IHA (85 FR 
7952, February 12, 2020) and issued IHA (85 FR 26940, May 06, 2020). 
The amount of take requested for the Renewal IHA reflects the amount of 
remaining work in consideration of marine mammal monitoring data from 
the 2020 survey season resulting in

[[Page 30437]]

equal or less take than that authorized in the initial IHA.

Detailed Description of the Activity

    A detailed description of the HRG activities for which take is 
proposed here may be found in the Federal Register notices of the 
proposed IHA (85 FR 7952, February 12, 2020), issued IHA (85 FR 26940, 
May 06, 2020), and reissued IHA (85 FR 42357, July 14, 2020) for the 
initial authorization. As described above, Vineyard Wind is not able to 
complete the survey activities analyzed in the initial IHA by the date 
the IHA is set to expire (June 20, 2021). As such, the surveys Vineyard 
Wind proposes to conduct under this Renewal would be a continuation of 
the surveys as described in the initial IHA. The location and nature of 
the activities, including the types of equipment planned for use, are 
identical to those described in the previous notices. Because part of 
the work has already been completed, the duration of the surveys 
conducted under the Renewal IHA will occur over less time than that 
described for the initial IHA (181 days versus 365 days); however, 
Vineyard Wind will continue to operate 24 hours per day to complete the 
work. Vineyard Wind proposes to continue its activities on June 21, 
2021, after the initial IHA expires on June 20, 2021. The proposed 
Renewal would be effective for a period of one year from the date of 
issuance.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
notices of the proposed and final IHAs for the initial authorization 
(85 FR 7952, February 12, 2020; 85 FR 26940, May 06, 2020). NMFS has 
reviewed the monitoring data from the initial IHA, recent draft Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and other scientific literature, and determined that neither this nor 
any other new information affects which species or stocks have the 
potential to be affected or the pertinent information in the 
Description of the Marine Mammals in the Area of Specified Activities 
contained in the supporting documents for the initial IHA.
    The draft 2020 Stock Assessment Report (SAR, available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports) states that estimated abundance 
has increased for the Western North Atlantic stock of common dolphins, 
from 172,825 (CV = 0.21) to 172,974 (CV = 0.21), and decreased for the 
following marine mammal stocks: The Gulf of Maine stock of humpback 
whales (from 1,396 (CV = 0) to 1,393 (CV = 0.15)), the Western North 
Atlantic stock of fin whales (from 7,418 (CV = 0.25) to 6,802 (CV = 
0.24)), and the Canadian East coast stock of minke whales (from 24,202 
(CV = 0.3) to 21,968 (CV=0.31)). Abundance estimates for the Western 
North Atlantic stock of North Atlantic right whales have also been 
updated, and state that right whale abundance has decreased from 428 to 
368 (95% CI 356-378) individuals (Pace 2021).
    Roberts et al. (2020) provided updated monthly densities of North 
Atlantic right whales in the area of proposed activities since the time 
of the initial IHA. These updated data for North Atlantic right whale 
densities incorporate additional sighting data and include increased 
spatial resolution. We reviewed the updated model documentation and 
recalculated the North Atlantic right whale density estimates following 
the same methods outlined in the proposed and final IHAs for the 
initial authorization (85 FR 7952, February 12, 2020; 85 FR 26940, May 
06, 2020). The new model results state that the mean annual North 
Atlantic right whale densities have slightly increased in the activity 
area.
    NMFS has preliminarily determined that neither the updated 
abundance and density information presented above nor any other new 
information affects which species or stocks have the potential to be 
affected or the pertinent information in the Description of the Marine 
Mammals in the Area of Specified Activities contained in the supporting 
documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
proposed here may be found in the notices of the proposed and final 
IHAs for the initial authorization (85 FR 7952, February 12, 2020; 85 
FR 26940, May 06, 2020). NMFS has reviewed the monitoring data from the 
initial IHA, recent draft Stock Assessment Reports, Technical Reports 
(e.g., Pace 2021), information on relevant Unusual Mortality Events, 
and other scientific literature and data (e.g., Roberts et al. 2020) 
and determined that neither this nor any other new information affects 
our initial analysis of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed and final IHAs for the initial authorization (85 FR 7952, 
February 12, 2020; 85 FR 26940, May 06, 2020). The acoustic source 
types, as well as source levels applicable to this authorization remain 
unchanged from the initial IHA. Similarly, the stocks taken, methods of 
take, and type of take (i.e., Level B harassment only) remain unchanged 
from the initial IHA.
    In the initial authorization for the HRG survey activities, the 
potential for take was estimated using the following parameters: (1) 
Maximum number of survey days that could occur over a 12-month period; 
(2) maximum distance each vessel could travel per 24-hour period in 
each of the identified survey areas; (3) maximum ensonified area (zone 
of influence (ZOI)); and (4) maximum marine mammal densities for any 
given season that a survey could occur. The calculated radial distances 
to the Level B harassment threshold (160 decibel (dB) root mean square 
(rms)) from a survey vessel are included in Table 1.

Table 1--Modeled Radial Distances From HRG Survey Equipment to Isopleths Corresponding to Level A Harassment and
                                          Level B Harassment Thresholds
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                                  HRG Survey Equipment                                        Level B harassment
                                                                                               horizontal impact
                                                                                                    distance (m)
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Shallow subbottom profilers....................  EdgeTech Chirp 216....................                        4
Deep seismic profilers.........................  Applied Acoustics AA251 Boomer........                      178
Deep seismic profilers.........................  GeoMarine Geo Spark 2000 (400 tip)....                      195
----------------------------------------------------------------------------------------------------------------


[[Page 30438]]

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

Estimated Take = D x ZOI x # of days

Where:

D = species density (per km2) and ZOI = maximum daily ensonified 
area

    In the notices of the proposed and final IHAs for the initial 
authorization (85 FR 7952, February 12, 2020; 85 FR 26940, May 06, 
2020), a conservative ZOI was calculated by applying the maximum radial 
distance for any category and type of HRG survey equipment considered 
in its assessment to the mobile source ZOI calculation. This maximum 
calculated distance to the Level B harassment threshold for the 
GeoMarine Geo Spark 2000 of 195 m was also used to calculate the ZOI 
for the requested extension. Vineyard Wind estimates that proposed 
survey vessels will achieve a maximum daily track line distance of 100 
km per day during proposed HRG surveys. This distance accounts for the 
vessel traveling at roughly 3.5 kn (6.5 km/hour) and accounts for non-
active survey periods. Based on the maximum estimated distance to the 
Level B harassment threshold of 195 m (Table 1) and the maximum 
estimated daily track line distance of 100 km, Vineyard Wind estimated 
that an area of 39.12 km\2\ would be ensonified to the Level B 
harassment threshold per day during Vineyard Wind's proposed HRG 
surveys. This is a conservative estimate as it assumes the HRG sources 
that result in the greatest isopleth distances to the Level B 
harassment threshold would be operated at all times during the all 
vessel days.
    This methodology of calculating take in the initial IHA applies to 
the proposed Renewal IHA for all species, with the only difference 
being the fewer amount of vessel days (i.e., 552 versus 736). The 
result is that the amount of take is reduced proportionally to the 
reduction in the number of days of work remaining. Vineyard Wind has 
requested a deviation from the proportionally reduced calculated take 
for Risso's dolphins as described below. Other than in the additional 
instances described below, NMFS agrees with Vineyard Wind's request for 
take and we propose to authorize the same amount of take as described 
in their request.
    In their request for a Renewal IHA application, Vineyard Wind 
requested that the number of Level B harassment takes (per the equation 
above) for Risso's dolphins be equal to their average group size 
estimate (6 individuals), given a proportional reduction in take based 
on the reduction in the number of days of work remaining would result 
in a take estimate that is smaller than the average group size 
estimate. As described in Vineyard Wind's preliminary monitoring 
report, they did not observe any Risso's dolphins during the survey 
work thus far completed. Therefore, we have carried over the same 
amount of take as proposed in the initial IHA, which is based on an 
average group size of 6 Risso's dolphins (Table 2).
    In the notices of the proposed and final IHAs for the initial 
authorization (85 FR 7952, February 12, 2020; 85 FR 26940, May 06, 
2020) takes by Level B harassment authorized for North Atlantic right 
whales were limited to 10 individuals, which was reduced from the 
calculated take of 31 whales. There were several reasons justifying 
this reduction. Vineyard Wind established and monitored a shutdown zone 
at least 2.5 times (500-meters (m)) greater than the predicted Level B 
harassment threshold distance (195 m). Take had also been 
conservatively calculated based on the largest source, which will not 
be operating at all times, and take is therefore likely over-estimated 
to some degree. Furthermore, the potential for incidental take during 
daylight hours is very low given that two Protected Species Observers 
(PSOs) are required for monitoring. Additionally, sightings of right 
whales had been uncommon during previous HRG surveys conducted in areas 
near the proposed surveys. For example, no North Atlantic right whales 
were sighted during Bay State Wind surveys in adjacent and overlapping 
survey areas over 376 vessel days between May 11, 2018 and March 14, 
2019. Vineyard Wind also had no North Atlantic right whales sighted in 
their marine mammal monitoring report that included Lease Areas OCS-A 
0501 and OCS-A 0522 from May 31, 2019 through January 7, 2020. 
Therefore, the aforementioned factors led NMFS to conclude that the 
unadjusted modeled exposure estimate was likely a significant 
overestimate of actual potential exposure. Accordingly, in the initial 
IHA NMFS made a reasonable adjustment to conservatively account for 
these expected mitigating effects on actual taking of right whales.
    During the 2020-2021 surveys, Vineyard Wind reported four sightings 
of seven North Atlantic right whales in their preliminary monitoring 
report. While all of these individuals were observed on a single day 
(December 20, 2020) and outside both the estimated 195-m Level B 
harassment Zone and the 500 m Exclusion Zone (EZ) for North Atlantic 
right whales (closest approaches were >900 m), they represent an 
increased amount of sightings observed during HRG surveys, though the 
information suggests that there were no takes. Updated model outputs 
from Roberts et al. (2020) also suggest that there has been a slight 
increase in North Atlantic right whale density in the survey area. 
Despite the increase in sightings and densities of North Atlantic right 
whales in the survey area, we believe that an updated unadjusted 
modeled exposure estimate based on these slightly increased densities 
would still represent a significant overestimate of the actual 
potential exposure, and therefore propose to carry over the same amount 
of take (10 individuals) as proposed in the initial IHA, which accounts 
for the expected mitigating effects on the actual taking of right 
whales.
    As documented in Vineyard Wind's preliminary monitoring report, 
there was a number of sightings of delphinids both within the estimated 
195 m Level B Harassment Zone and the 100 m EZ that were characterized 
by the PSOs as `voluntary approaches.' A ``voluntary approach'' is 
defined as a purposeful approach toward the vessel by the delphinid(s) 
with a speed and vector that indicates that the delphinid(s) is 
approaching the vessels and remains near the vessel or towed equipment 
(BOEM 2014). Vineyard Wind PSOs reported 270 sightings of approximately 
3,332 individual common dolphins within the estimated 195 m Level B 
harassment zone for the sparker. During these marine mammal 
observations, no behavior was observed that would be considered 
consistent with a behavioral response to harassment (i.e., rapid 
swimming away from the sound source or vessel; repeated fin slaps or 
breaches; notable changes in behavior as a result of vessel approach), 
and no animals demonstrated signs of harm. Therefore, Vineyard Wind 
concluded that these animals did not experience Level B Harassment, as 
defined under the MMPA. Given that Vineyard Wind observed more common 
dolphins than expected, we propose to carry over the same amount of 
take (2,036 individuals) as proposed in the initial IHA, as opposed to 
decreasing it commensurate to the reduced amount of activity remaining. 
Thus, take numbers proposed in this IHA Renewal (Table 2) represent 
prorated estimates for all species except North Atlantic right whales, 
Risso's dolphins, and common dolphins whose proposed take estimates 
remain the same as authorized in the initial IHA.
    On August 20, 2020 Vineyard Wind PSOs observed two white-beaked

[[Page 30439]]

dolphins within the 195 m Level B harassment zone for the sparker 
during the first year of Vineyard Wind's survey activities. White-
beaked dolphins were considered unlikely to be encountered in the 
survey area and, therefore, take was not considered reasonably likely 
to occur and was not authorized in the initial IHA. This species has 
historically been found in waters outside of the survey area, from 
southern New England to southern Greenland and Davis Straits 
(Leatherwood et al. 1976; CETAP 1982, Hayes et al. 2019), across the 
Atlantic to the Barents Sea and south to at least Portugal (Reeves et 
al. 1999). In waters off the northeastern U.S. coast, white-beaked 
dolphin sightings are typically concentrated in the western Gulf of 
Maine and around Cape Cod (CETAP 1982, Hayes et al. 2019). The dolphins 
observed during the 2020-2021 surveys were first sighted as 
unidentified dolphins due to the decreased visibility under sea state 3 
conditions, creating challenges in identification. Given the dolphins 
were of genera Delphinus, Lagenorhynchus, or Tursiops, and in 
accordance with IHA condition 4(f)(vii), the PSO used their best 
professional judgment in determining that the animals were exempted 
from the shutdown requirement. After less than a minute of bow riding 
the dolphins began swimming away and at the end of the sighting the PSO 
was able to make a positive ID. The PSO determined the animal was 
leaving the zone and therefore no mitigation was required. The PSO 
determined that there was no behavioral change or signs of distress and 
thus Vineyard Wind did not report the sighting as a potentially 
unauthorized Level B harassment take. Despite this single observation 
of white beaked dolphins, encounters with the species in the survey 
area remain unlikely. For example, no sightings of white beaked 
dolphins have been reported in monitoring reports from other IHAs 
issued in the same region in recent years. Therefore, NMFS has 
determined that the initial determination that take of the species is 
not reasonably likely to occur and, therefore, that take authorization 
for the species is not warranted. We have clarified with Vineyard Wind 
the need to communicate any sightings of rare species to NMFS as soon 
as possible.

                       Table 2--Initial IHA Take Authorized and Renewal IHA Proposed Take
----------------------------------------------------------------------------------------------------------------
                                                                        Level B harassment
                                                                 --------------------------------
                             Species                                   Take                           Percent
                                                                    authorized     Proposed take  population \1\
                                                                    initial IHA     renewal IHA
----------------------------------------------------------------------------------------------------------------
Fin whale.......................................................              67              51             1.1
Humpback whale..................................................              46              34             2.1
Minke whale.....................................................              41              31             1.5
North Atlantic right whale......................................              10              10             2.7
Sei whale.......................................................               4               3             0.4
Atlantic white sided dolphin....................................           1,011             758             2.0
Bottlenose dolphin (WNA Offshore)...............................             815             611             1.0
Long-finned pilot whales........................................             142             107             0.6
Risso's dolphin.................................................               6               6            0.08
Common dolphin..................................................           2,036           2,036             2.3
Sperm whale.....................................................               4               3            0.06
Harbor porpoise.................................................           1,045             784             1.7
Gray seal.......................................................           4,044           3,033           11.17
Harbor seal.....................................................           4,044           3,033             4.0
----------------------------------------------------------------------------------------------------------------
\1\ Calculations of percentage of stock taken are based on the best available abundance estimate as shown in
  Table 2 in the notice of the final IHA for the initial authorization (85 FR 26940, May 06, 2020). In most
  cases the best available abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available,
  to maintain consistency with density estimates derived from Roberts et al. (2016, 2017, 2018). For North
  Atlantic right whales the best available abundance estimate is derived from the 2021 NOAA Technical Memorandum
  NMFS-NE-269 Revisions and Further Evaluations of the Right Whale Abundance Model: Improvements for Hypothesis
  Testing (Pace, 2021). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a
  single abundance estimate and does not provide abundance estimates at the stock or species level
  (respectively), so abundance estimates used to estimate percentage of stock taken for bottlenose dolphins,
  gray and harbor seals are derived from NMFS SARs (Hayes et al., 2019).

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the FR Notice announcing the issuance of the initial IHA 
(85 FR 26940, May 06, 2020), and the discussion of the least 
practicable adverse impact included in that document and the notice of 
the proposed IHA remains accurate (85 FR 7952, February 12, 2020; 85 FR 
26940, May 06, 2020). All mitigation, monitoring and reporting measures 
in the initial IHA are carried over to this proposed Renewal IHA and 
summarized here:
     EZ: Marine mammal EZs will be established around the HRG 
survey equipment and monitored by PSO during HRG surveys as follows: A 
500-m EZ is required for North Atlantic right whales and a 100-m EZ is 
required for all other marine mammals (with the exception of certain 
genera of small delphinids (i.e., Delphinus, Lagenorhynchus, and 
Tursiops) under certain circumstances, such as individuals voluntary 
approaching the vessel). If a marine mammal is detected approaching or 
entering the EZs during the planned survey, the vessel operator would 
adhere to the shutdown procedures described below. In addition to the 
EZs described above, PSOs would visually monitor a 200-m Buffer Zone; 
however, this Buffer Zone is not applicable when the EZ is greater than 
100 meters. PSOs would also be required to observe a 500-m Monitoring 
Zone and record the presence of all marine mammals within this zone and 
within the Level B harassment zone. The zones described above would be 
based upon the radial distance from the active equipment (rather than 
being based on distance from the vessel itself).
     PSO: A minimum of two NMFS-approved PSOs must be on duty 
and conducting visual observations at all times on all active survey 
vessels when HRG equipment is operating, including both daytime and 
nighttime operations.

[[Page 30440]]

Visual monitoring would begin no less than 30 minutes prior to 
initiation of HRG survey equipment and would continue until 30 minutes 
after use of the acoustic source ceases or until 30 minutes past 
sunset. However, Vineyard Wind has committed to 24-hr use of PSOs. PSOs 
would establish and monitor the applicable EZs, Buffer Zone and 
Monitoring Zone as described above.
     Pre-Operation Clearance Protocols: Prior to initiating HRG 
survey activities, Vineyard Wind would implement a 30-minute pre-
clearance period. Ramp-up of the survey equipment would not begin until 
the relevant zones (500-m EZ for North Atlantic right whales and 200-m 
Buffer Zone for all other species) have been cleared by the PSOs. If 
any marine mammals are detected within the relevant EZs or Buffer Zone 
during the pre-clearance period, initiation of HRG survey equipment 
would not begin until the animal(s) has been observed exiting the 
respective EZ or Buffer Zone, or, until an additional time period has 
elapsed with no further sighting (i.e., minimum 15 minutes for small 
odontocetes and seals, and 30 minutes for all other species). The pre-
clearance requirement would include small delphinids that approach the 
vessel (e.g., bow ride). PSOs would also continue to monitor the zone 
for 30 minutes after survey equipment is shut down or survey activity 
has concluded.
     Ramp-up: A ramp-up procedure would be used for geophysical 
survey equipment capable of adjusting energy levels at the start or re-
start of survey activities. Ramp-up of the survey equipment would not 
begin until the relevant EZs and Buffer Zone has been cleared by the 
PSOs, as described above. HRG equipment would be initiated at their 
lowest power output and would be incrementally increased to full power. 
If any marine mammals are detected within the EZs or Buffer Zone prior 
to or during ramp-up, the HRG equipment would be shut down (as 
described below).
     Shutdown of HRG Equipment: If an HRG source is active and 
a marine mammal is observed within or entering a relevant EZ (as 
described above) an immediate shutdown of the HRG survey equipment 
would be required. Note this shutdown requirement would be waived for 
certain genera of small delphinids as described above. Subsequent 
restart of the HRG equipment would only occur after the marine mammal 
has either been observed exiting the relevant EZ, or, until an 
additional time period has elapsed with no further sighting of the 
animal within the relevant EZ (i.e., 15 minutes for small odontocetes 
and seals, and 30 minutes for all other species).
     Vessel strike avoidance measures: Separation distances for 
large whales (500 m North Atlantic Right Whales, 100 m other large 
whales; 50 m other cetaceans and pinnipeds), restricted vessel speeds, 
and operational maneuvers.
    Seasonal Operating Requirements:
     Vineyard Wind will conduct HRG survey activities in the 
Cape Cod Bay Mid-Atlantic U.S. Seasonal Management Area (SMA) and Off 
Race Point SMA only during the months of August and September to ensure 
sufficient buffer between the SMA restrictions (January to May 15) and 
known seasonal occurrence of the North Atlantic right whale north and 
northeast of Cape Cod (fall, winter, and spring). Vineyard Wind will 
also limit to three the number survey vessels that will operate 
concurrently from March through June within the lease areas (OCS-A 0501 
and 0487) and offshore export cable corridor (OECC) areas north of the 
lease areas up to, but not including, coastal and bay waters. Another 
seasonal restriction area south of Nantucket will be in effect from 
December to February in the area delineated by the DMA that was 
effective from January 31, 2020 through February 15, 2020. In addition, 
Vineyard Wind would operate either a single vessel, two vessels 
concurrently or, for short periods, no more than three survey vessels 
concurrently in the areas described above during the December-February 
and March-June timeframes when right whale densities are greatest. The 
seasonal restrictions described above will help to reduce both the 
number and intensity of North Atlantic right whale takes.
     Reporting: Vineyard Wind will submit a final technical 
report within 90 days following completion of the surveys. In the event 
that Vineyard Wind personnel discover an injured or dead marine mammal, 
Vineyard Wind shall report the incident to the Office of Protected 
Resources (OPR), NMFS and to the New England/Mid-Atlantic Regional 
Stranding Coordinator as soon as feasible. In the event of a ship 
strike of a marine mammal by any vessel involved in the activities 
covered by the authorization, Vineyard Wind shall report the incident 
to OPR, NMFS and to the New England/Mid-Atlantic Regional Stranding 
Coordinator as soon as feasible.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (85 
FR 7952, February 12, 2020) and solicited public comments on both our 
proposal to issue the initial IHA for marine site characterization 
surveys and on the potential for a Renewal IHA, should certain 
requirements be met.
    All public comments were addressed in the notice announcing the 
issuance of the initial IHA (85 FR 26940, May 06, 2020). Below, we 
describe how we have addressed, with updated information where 
appropriate, any comments received that specifically pertain to the 
Renewal of the 2020 IHA.
    Comment: The Marine Mammal Commission (Commission) recommended that 
NMFS refrain from issuing Renewals for any authorization and instead 
use its abbreviated Federal Register notice process. They argued that 
the process is similarly expeditious and fulfills NMFS's intent to 
maximize efficiencies, and that NMFS (1) stipulate that a Renewal is a 
one-time opportunity (a) in all Federal Register notices requesting 
comments on the possibility of a Renewal, (b) on its web page detailing 
the Renewal process, and (c) in all draft and final authorizations that 
include a term and condition for a Renewal and, (2) if NMFS refuses to 
stipulate a Renewal being a one-time opportunity, explain why it will 
not do so in its Federal Register notices, on its web page, and in all 
draft and final authorizations.
    Response: NMFS expressed how it does not agree with the Commission 
that we instead use the abbreviated notice process and did not adopt 
the Commission's recommendation. As explained in the response to the 
following comment, NMFS believes Renewals can be issued in certain 
limited circumstances.
    The Commission was also concerned that NMFS had not explicitly 
identified that a 1-year Renewal IHA was a one-time opportunity in our 
Federal Register notices nor on our website. NMFS has since identified 
in Federal Register notices and on our website that a Renewal IHA is 
one time opportunity.
    Comment: A group of environmental non-governmental organizations 
(ENGOs) objected to NMFS' process to consider extending any 1-year IHA 
with a truncated 15-day comment period as contrary to the MMPA.
    Response: NMFS' IHA Renewal process meets all statutory 
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA, 
are valid for a period of not more than 1 year. And the public has at 
least 30 days to comment on all proposed IHAs, with a cumulative total 
of 45 days for IHA Renewals. As noted above, the Request for Public 
Comments section in the initial IHA made clear that the agency was 
seeking comment on both the initial

[[Page 30441]]

proposed IHA and the potential issuance of a Renewal for this project. 
Because any Renewal (as explained in the Request for Public Comments 
section in the initial IHA) is limited to another year of identical or 
nearly identical activities in the same location (as described in the 
Description of Proposed Activity section in the initial IHA) or the 
same activities that were not completed within the one-year period of 
the initial IHA, reviewers have the information needed to effectively 
comment on both the immediate proposed IHA and a possible 1-year 
Renewal, should the IHA holder choose to request one.
    While there are additional documents submitted with a Renewal 
request, for a qualifying Renewal these are limited to documentation 
that NMFS will make available and use to verify that the activities are 
identical to those in the initial IHA, are nearly identical such that 
the changes would have either no effect on impacts to marine mammals or 
decrease those impacts, or are a subset of activities already analyzed 
and authorized but not completed under the initial IHA. NMFS will also 
confirm, among other things, that the activities will occur in the same 
location; involve the same species and stocks; provide for continuation 
of the same mitigation, monitoring, and reporting requirements; and 
that no new information has been received that would alter the prior 
analysis. The renewal request also contains a preliminary monitoring 
report, but that is to verify that effects from the activities do not 
indicate impacts of a scale or nature not previously analyzed. The 
additional 15-day public comment period provides the public an 
opportunity to review these few documents, provide any additional 
pertinent information and comment on whether they think the criteria 
for a renewal have been met. NMFS also will provide direct notice of 
the proposed Renewal to those who commented on the initial IHA, to 
provide an opportunity to submit any additional comments. Between the 
initial 30-day comment period on these same activities and the 
additional 15 days, the total comment period for a renewal is 45 days.
    In addition to the IHA Renewal process being consistent with all 
requirements under section 101(a)(5)(D), it is also consistent with 
Congress's intent for issuance of IHAs to the extent reflected in 
statements in the legislative history of the MMPA. Through the 
provision for Renewals in the regulations, description of the process 
and express invitation to comment on specific potential Renewals in the 
Request for Public Comments section of each proposed IHA, the 
description of the process on NMFS' website, further elaboration on the 
process through responses to comments such as these, posting of 
substantive documents on the agency's website, and provision of 30 or 
45 days for public review and comment on all proposed initial IHAs and 
Renewals respectively, NMFS has ensured that the public ``is invited 
and encouraged to participate fully in the agency decision-making 
process.''
    For more information, NMFS has published a description of the 
Renewal process on our website (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals).

Preliminary Determinations

    The survey activities proposed by Vineyard Wind are identical to 
(and a subset of) those analyzed in the initial IHA, as are the method 
of taking and the effects of the action. The mitigation measures and 
monitoring and reporting requirements as described above are also 
identical to the initial IHA. The planned number of days of activity 
will be reduced given the completion of a small portion of the 
originally planned work. Therefore, the amount of take proposed is 
equal to or less than that authorized in the initial IHA. The potential 
effect of Vineyard Winds' activities remains limited to Level B 
harassment in the form of behavioral disturbance. In analyzing the 
effects of the activities in the initial IHA, NMFS determined that 
Vineyard Wind's activities would have a negligible impact on the 
affected species or stocks and that the authorized take numbers of each 
species or stock were small relative to the relevant stocks (e.g., less 
than one-third of the abundance of all stocks).
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for the initial IHA. This includes consideration of the 
estimated abundances of four stocks (North Atlantic right whales, 
humpback whales, fin whales, and minke whales) decreasing and the 
estimated abundances of one stock (common dolphins) increasing (Hayes 
et al. 2020, Pace 2021). This also includes consideration of the 
increased density estimates for North Atlantic right whales based on 
updated model outputs from Roberts et al. (2020) as described above in 
the Estimated Take section. Based on the information and analysis 
contained here and in the referenced documents, NMFS has determined the 
following: (1) The required mitigation measures will effect the least 
practicable 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) Vineyard Wind's activities will not have an 
unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and; (5) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes, funds, or carries out is not likely to jeopardize the 
continued existence of any endangered or threatened species or result 
in the destruction or adverse modification of designated critical 
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS 
consults internally, in this case with the NMFS Greater Atlantic 
Regional Fisheries Office (GARFO), whenever we propose to authorize 
take for endangered or threatened species.
    The NMFS Office of Protected Resources 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. We 
requested initiation of consultation under Section 7 of the ESA with 
NMFS GARFO on February 12, 2020, for the issuance of this IHA. BOEM 
consulted with NMFS GARFO under section 7 of the ESA on commercial wind 
lease issuance and site assessment activities on the Atlantic Outer 
Continental Shelf in Massachusetts, Rhode Island, New York and New 
Jersey Wind Energy Areas. The NMFS GARFO issued a Biological Opinion 
concluding that these activities may adversely affect but are not 
likely to jeopardize the continued existence of the North Atlantic 
right, fin, sei and sperm whale. Upon request from the NMFS Office of 
Protected Resources, NMFS GARFO issued an amended incidental take 
statement associated with this Biological Opinion to include the take 
of the ESA-listed marine mammal species authorized through this IHA in 
April 2020. On May 12, 2021 NMFS GARO determined that their initial 
consultation remains valid and that the proposed MMPA Renewal IHA 
provides no new information about

[[Page 30442]]

the effects of the action, nor does it change the extent of effects of 
the action, or any other basis to require reinitiation of the opinion.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a Renewal IHA to Vineyard Wind for conducting marine site 
characterization survey activities off the coast of Massachusetts in 
the areas of the Commercial Lease of Submerged Lands for Renewable 
Energy Development on the Outer Continental Shelf (OCS-A 0501 and OCS-A 
0522) and along potential submarine cable routes to landfall locations 
in Massachusetts, Rhode Island, Connecticut, and New York for a period 
of one year from the date of issuance, provided the previously 
described mitigation, monitoring, and reporting requirements are 
incorporated. A draft of the proposed and final initial IHA can be 
found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We request comment 
on our analyses, the proposed Renewal IHA, and any other aspect of this 
Notice. Please include with your comments any supporting data or 
literature citations to help inform our final decision on the request 
for MMPA authorization.

    Dated: June 2, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-11904 Filed 6-7-21; 8:45 am]
BILLING CODE 3510-22-P