[Federal Register Volume 86, Number 149 (Friday, August 6, 2021)]
[Notices]
[Pages 43212-43228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16774]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB227]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys, Virginia and North Carolina

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

ACTION: Notice; issuance of 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 
Kitty Hawk Wind, LLC (Kitty Hawk Wind) to incidentally harass, by Level 
B harassment, marine mammals during marine site characterization 
surveys offshore Virginia and North Carolina.

DATES: The IHA is effective July 15, 2021 through October 31, 2021.

FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected 
Resources, NMFS, (301) 427-8401. 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/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 MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.

Description of Proposed Activity

Overview

    On April 27, 2021, NMFS received an adequate and complete 
application from Kitty Hawk Wind requesting an IHA authorizing the 
take, by Level B harassment only, of nine species of marine mammals 
incidental to marine site characterization surveys, specifically in 
association with the use of high-resolution geophysical (HRG) survey 
equipment off North Carolina. We note surveys will also occur off 
Virginia; however, for reasons described below, take of marine mammals 
incidental to use of those surveys is not expected to occur. The 
surveys will support offshore wind development in 40 percent of the 
lease area (OCS-A 0508) in the northwest corner closest to the North 
Carolina shoreline (approximately 198 square kilometers (km\2\)). Kitty 
Hawk Wind would use five types of survey equipment; however, as 
described below, only the Fugro SRP EAH 2D sparker has the potential to 
harass marine mammals. Exposure to noise from the surveys may cause 
behavioral changes in marine mammals (e.g., avoidance, increased swim 
speeds, etc.) rising to the level of take (Level B harassment) as 
defined under the MMPA. NMFS has issued the requested IHA.

Dates and Duration

    Kitty Hawk Wind would commence the survey no earlier than July 15, 
with the objective of completing the work by September 31, 2021. The 
surveys would cover approximately 3,300 km of survey trackline over 25 
days, not including non-survey days likely needed for weather down 
time. The IHA would be effective from July 15 through October 31, 2021. 
Although the survey will likely be completed by September 31, 2021, the 
additional month long effective period will allow for any unexpected 
weather delays while still

[[Page 43213]]

affording protection to select migratory marine mammal species. This 
schedule is based on 24-hour operations.

Detailed Description of Specific Activity

    The purpose of Kitty Hawk Wind's marine site characterization 
surveys is to support the siting of the proposed wind turbine 
generators and offshore export cables, providing a more detailed 
understanding of the seabed and sub-surface conditions in the wind 
development area (WDA) and export cable corridor.
    Kitty Hawk Wind anticipates that during most of the survey only two 
vessels would be necessary, with one vessel operating nearshore and 
another operating offshore. However, up to three vessels may operate at 
any given time with final vessel choices dependent on the final survey 
design, vessel availability, and survey contractor selection. 
Concurrently operating vessels would remain at least 1 km apart. The 
vessels will be capable of maintaining course and a survey speed of 
approximately 3 knots (5.6 km per hour (hr)) while transiting survey 
lines. Surveys will be conducted along track lines spaced 300 m apart, 
with tie lines perpendicular to the main transect lines also spaced 300 
m apart.
    Acoustic sources planned for use during HRG survey activities 
proposed by Kitty Hawk Wind include the following:
     Medium penetration, impulsive sources (i.e., boomers and 
sparkers) are used to map deeper subsurface stratigraphy. A boomer is a 
broadband source operating in the 3.5 Hz to 10 kHz frequency range. 
Sparkers create omnidirectional acoustic pulses from 50 Hz to 4 kHz. 
These sources are typically towed behind the vessel.
    Operation of the following survey equipment types is not expected 
to present reasonable risk of marine mammal take, and will not be 
discussed further beyond the brief summaries provided below.
     Non-impulsive, parametric sub-bottom profilers (SBPs) are 
used for providing high data density in sub-bottom profiles that are 
typically required for cable routes, very shallow water, and 
archaeological surveys. These sources generate short, very narrow-beam 
(1[deg] to 3.5[deg]) signals at high frequencies (generally around 85-
100 kHz). The narrow beamwidth significantly reduces the potential that 
a marine mammal could be exposed to the signal, while the high 
frequency of operation means that the signal is rapidly attenuated in 
seawater. These sources are typically deployed on a pole rather than 
towed behind the vessel.
     Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by the vessel transceiver and a transponder 
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several 
transponders mounted on other survey equipment. USBLs are expected to 
produce extremely small acoustic propagation distances in their typical 
operating configuration.
     Multibeam echosounders (MBESs) are used to determine water 
depths and general bottom topography. The proposed MBESs all have 
operating frequencies >180 kHz and are therefore outside the general 
hearing range of marine mammals.
    Side scan sonars (SSS) are used for seabed sediment classification 
purposes and to identify natural and man-made acoustic targets on the 
seafloor. The proposed SSSs all have operating frequencies >180 kHz and 
are therefore outside the general hearing range of marine mammals. 
Table 1 identifies representative survey equipment proposed by Kitty 
Hawk Wind. The make and model of the listed geophysical equipment may 
vary depending on availability and the final equipment choices will 
vary depending upon the final survey design, vessel availability, and 
survey contractor selection. Not all sources within Table 1 have the 
potential to result in take (for reasons described above); however, for 
completeness, we have included them here. Based on our assessment, only 
the Fugro SPR EAH 2D Sparker has the potential to result in the take of 
marine mammals.
    All decibel (dB) levels included in this notice are referenced to 1 
micoPascal. The root mean square decibel level (dBrms) 
represents the square root of the average of the pressure of the sound 
signal over a given duration. The peak dB level (dBpeak) 
represents the range in pressure between zero and the greatest pressure 
of the signal. Operating frequencies are presented in kilohertz (kHz).

                                                    Table 1--Summary of Representative HRG Equipment
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                                                                                       Operating       Source      Source
                   HRG system                        Representative HRG survey        frequencies       level      level     Pulse duration   Beam width
                                                             equipment              kilohertz (kHz)    dBpeak      dBrms          (ms)         (degree)
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Subsea Positioning/ultra-short baseline          Sonardyne Ranger 2 USBL..........            35-50         200        188               16          180
 positioning system (USBL) a.
Sidescan Sonar a b.............................  Klein 3900 Side Scan Sonar.......          445/900         226        220   0.016 to 0.100       1 to 2
Parametric Shallow penetration sub-bottom        Innomar parametric SES-2000              85 to 115         247      c 241        0.07 to 2            1
 profiler a.                                      Standard.
Multibeam Echo Sounder a b.....................  Reson T20-P......................      200/300/400         227        221           2 to 6   1.8  0.2
Multi-level Stacked Sparker....................  Fugro SPR EAH 2D Sparker (700 J).       0.4 to 3.5       d 223      d 213       d 0.5 to 3          180
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\a\ Potential harassment from operation of this device is not anticipated.
\b\ Operating frequencies are above all relevant marine mammal hearing thresholds.
\c\ The equipment specification sheets indicate a peak source level of 247 dB re 1 [mu]PA m. The average difference between the peak and SPLRMS source
  levels for sub-bottom profilers measured by Crocker and Fratantonio (2016) was 6 dB. Therefore, the estimated SPLRMS sound level is 241 dB re 1 [mu]PA
  m.
\d\ Sound levels where not available from the manufacturer. Therefore, the source levels and pulse duration are based on data from Crocker and
  Fratantonio (2016) using the Applied Acoustics Dura-Spark as a comparable proxy. The source levels are based on an energy level of 1,000 J with 240
  tips and a bandwidth of 3.2 kHz.

    Mitigation, monitoring, and reporting measures contained within the 
IHA are described in detail later in this document (please see 
Mitigation and Monitoring and Reporting sections).

[[Page 43214]]

Comments and Responses

    A notice of proposed IHA was published in the Federal Register on 
May 25, 2021 (86 FR 28061). During the 30-day public comment period, 
NMFS received one comment letter from the Southern Environmental Law 
Center (SELC), which submitted comments on behalf of Natural Resources 
Defense Council, National Wildlife Federation, Conservation Law 
Foundation, Defenders of Wildlife, Whale and Dolphin Conservation, 
Assateague Coastal Trust, the Nature Conservancy Virginia, North 
Carolina Wildlife Federation, Sierra Club Virginia Chapter, Surfrider 
Foundation, All Our Energy, Gotham Whale, International Marine Mammal 
Project of Earth Island Institute, Inland Ocean Coalition, Mass 
Audubon, NY4WHALES, Ocean Conservation Research, Oceanic Preservation 
Society, and Sanctuary Education Advisory Specialists. NMFS has posted 
the comment letter online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-otherenergy-activities-renewable. A summary of the comments as well as NMFS' 
responses are below.
    Comment 1: SELC recommends NMFS: (1) Fund analyses of recently 
collected sighting and acoustic data for all data-holders; (2) continue 
to fund and expand surveys and studies to improve our understanding of 
distribution and habitat use of marine mammals off North Carolina and 
Virginia, including within and adjacent to the Project Area, as well as 
throughout the broader Mid-Atlantic region, in the very near future; 
and (3) take a ``precautionary approach'' with regard to siting and 
mitigation when permitting offshore wind activities in areas for which 
species distribution data are limited.
    Response: NMFS agrees with SELC that continued surveys are 
warranted as is the analysis of collected data. We welcome the 
opportunity to participate in fora where implications of such data and 
development of a dataset would be discussed. Note, however, that NMFS 
will fund pertinent surveys based on agency priorities and budgetary 
considerations. Note that NOAA Fisheries recently published ``Technical 
Memorandum NMFS-OPR-64: North Atlantic Right Whale (NARW) Monitoring 
and Surveillance: Report and Recommendations of the National Marine 
Fisheries Service's Expert Working Group'' (https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whalemonitoring-and-surveillance-report-andrecommendations). This 
report includes recommendations for a comprehensive monitoring strategy 
to guide future analyses and data collection. NOAA Fisheries will 
consider the Expert Working Group's recommendations, as well as other 
relevant information, in its decision-making about right whale research 
and population monitoring.
    Comment 2: SELC is concerned over use of the Roberts et al. 2020 
density data to inform take estimates because they claim it excludes 
data obtained through additional sighting databases, passive acoustic 
monitoring (PAM), and satellite telemetry. They also contend that the 
density model uses data primarily from before 2010 and therefore does 
not reflect shifts in (NARW) distribution observed over the past five 
years (2017-2021). SELC contends that because the density maps produced 
by the Roberts et al. models do not fully reflect the abundance, 
distribution, and density of marine mammals for the U.S. East Coast, 
they cannot be the only information source relied upon when estimating 
take. They recommend NMFS consider any data from state monitoring 
efforts, PAM data, opportunistic marine mammal sightings, and other 
data sources.
    Response: Habitat-based density models produced by the Duke 
University Marine Geospatial Ecology Lab (MGEL) (Roberts et al. 2016, 
2017, 2018, 2020) represent the best available scientific information 
concerning marine mammal occurrence within the U.S. Atlantic Ocean. 
Density models were originally developed for all cetacean taxa in the 
U.S. Atlantic (Roberts et al., 2016); more information, including the 
model results and supplementary information for each of those models, 
is available at https://seamap.env.duke.edu/models/Duke/ EC/. These 
models provided key improvements over previously available information, 
by incorporating additional aerial and shipboard survey data from NMFS 
and from other organizations collected over the period 1992-2014, 
incorporating 60 percent more shipboard and 500 percent more aerial 
survey hours than did previously available models; controlling for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting; and modeling density from 
an expanded set of 8 physiographic and 16 dynamic oceanographic and 
biological covariates. In subsequent years, certain models have been 
updated on the basis of additional data as well as methodological 
improvements. In addition, a new density model for seals was produced 
as part of the 2017-18 round of model updates.
    Of particular note, Roberts et al. (2020) further updated density 
model results for NARWs by incorporating additional sighting data and 
implementing three major changes: Increasing spatial resolution, 
generating monthly estimates on three time periods of survey data, and 
dividing the study area into five discrete regions. This most recent 
update--model version 9 for NARWs--was undertaken with the following 
objectives (Roberts et al., 2020):
     To account for recent changes to right whale 
distributions, the model should be based on survey data that extend 
through 2018, or later if possible. In addition to updates from 
existing collaborators, data should be solicited from two survey 
programs not used in prior model versions:
    [cir] Aerial surveys of the Massachusetts and Rhode Island Wind 
Energy Areas led by New England Aquarium (Kraus et al., 2016), spanning 
2011-2015 and 2017-2018.
    [cir] Recent surveys of New York waters, either traditional aerial 
surveys initiated by the New York State Department of Environmental 
Conservation in 2017, or digital aerial surveys initiated by the New 
York State Energy Research and Development Authority in 2016, or both.
     To reflect a view in the right whale research community 
that spatiotemporal patterns in right whale density changed around the 
time the species entered a decline in approximately 2010, consider 
basing the new model only on recent years, including contrasting 
``before'' and ``after'' models that might illustrate shifts in 
density, as well as a model spanning both periods, and specifically 
consider which model would best represent right whale density in the 
near future.
     To facilitate better application of the model to near-
shore management questions, extend the spatial extent of the model 
farther in-shore, particularly north of New York.
     Increase the resolution of the model beyond 10 kilometers 
(km), if possible.
    All of these objectives were met in developing the most recent 
update to the density model. The commenters do not cite this most 
recent report, and the comments suggest that the aforementioned data 
collected by the New England Aquarium is not reflected in the model. 
Therefore, it is unclear whether the commenters are aware of the most 
recently available data, which is used herein.
    As noted above, NMFS has determined that the Roberts et al. suite

[[Page 43215]]

of density models represent the best available scientific information, 
and we specifically note that the 2020 version of the NARW model may 
address some of the specific concerns provided by the commenters. (Note 
that there has been an additional minor model update affecting 
predictions for Cape Cod Bay in the month of December, which is not 
relevant to the location of this survey off of Delaware and New 
Jersey.) However, NMFS acknowledges that there will always be 
additional data that is not reflected in the models and that may inform 
our analyses, whether because the data were not made available to the 
model authors or because the data is more recent than the latest model 
version for a specific taxon. NMFS will review any recommended data 
sources to evaluate their applicability in a quantitative sense (e.g., 
to an estimate of take numbers) and, separately, to ensure that 
relevant information is considered qualitatively when assessing the 
impacts of the specified activity on the affected species or stocks and 
their habitat. NMFS will continue to use the best available scientific 
information, and we welcome future input from interested parties on 
data sources that may be of use in analyzing the potential presence and 
movement patterns of marine mammals, including NARWs, in U.S. Atlantic 
waters.
    Moreover, data sources cited by SELC pertain to Virginia waters. As 
described in Kitty Hawk Wind's application and the notice of proposed 
IHA, none of the sources used in Virginia waters have the potential to 
harass animals, either because they operate above the hearing ranges of 
all marine mammals or have such narrow beams widths or low source 
levels that harassment is unlikely. Therefore, no take in Virginia 
waters is anticipated to occur as the source with potential to result 
in harassment, the Furgo sparker, is only used on the WDA off North 
Carolina.
    Finally, as described in the ``Estimated Take'' section of the 
notice of proposed IHA and below, Kitty Hawk Wind and NMFS also 
consider monitoring data collected by Kitty Hawk Wind during previous 
marine site characterization surveys. Therefore, density estimates 
alone were not solely used to inform take authorization amounts for all 
species. As described in the notice of proposed IHA, take was adjusted 
from the density-based calculations for pilot whales, common dolphins, 
Atlantic spotted dolphins and Risso's dolphins. In summary, use of the 
Roberts et al. density data in combination of site-specific data 
collected by Kitty Hawk Wind represents a reasonable approach 
representing the best available science for estimating take from the 
proposed marine site characterization surveys.
    Comment 3: SELC identifies that the Roberts et al. model does not 
differentiate between species of pilot whale or seal, or between stocks 
of bottlenose dolphin. They are concerned that the proposed IHA 
separates marine mammals by species or by stock but the same accounting 
is used for each, and observations do not distinguish between species 
or stock. They go on to say that a [negligible impact finding] record 
that provides ``general discussions with little, if any, relevance to 
the population-level effects on specific species and stock, and to 
conclusory statements that no such effects are expected,'' is 
inadequate.
    Response: SELC is correct that the Roberts et al. density models do 
not distinguish between stocks of pilot whales and bottlenose dolphins. 
We note that seal models are not applicable here given the time of year 
the survey will be conducted and NMFS did not propose, nor authorize, 
take of any seal species or stock incidental to the proposed marine 
site characterization survey. The MMPA requires that species- or stock-
specific negligible impact determinations be made, and NMFS has done 
so. In this case, NMFS has authorized take numbers specific to each 
affected species or stock. As a general matter, NMFS is unaware of any 
available density data which differentiates between species of pilot 
whales or seals, or stocks of bottlenose dolphins. However, lack of 
such data does not preclude the requisite species or stock-specific 
findings. In the event that an amount of take is authorized at the 
guild or species level only, e.g., for pilot whales or bottlenose 
dolphins, respectively, NMFS may adequately evaluate the effects of the 
activity by conservatively assuming (for example) that all takes 
authorized for the guild or species would accrue to each potentially 
affected species or stock. In this case, NMFS made clear why only the 
offshore stock of bottlenose dolphins is likely to be taken by the 
proposed marine site characterizations surveys and, for pilot whales, 
has assigned take on the basis of an assumed group size of 20 for each 
potentially affected species. NMFS fully describes the reasons why the 
amount of take authorized, per stock, would have a negligible impact to 
each marine mammal stock. NMFS has also clarified the total amount of 
take authorized to each stock of pilot whales (long-finned and short-
finned) is 20 each.
    Comment 4: SELC believes the assumptions regarding seasonal 
occurrence of NARW in the survey area are unfounded because they assert 
NARWs are detected during every month of the year in the Mid-Atlantic.
    Response: As described in the notice of proposed IHA, Kitty Hawk 
Wind plans to complete the surveys by the end of September (we note the 
IHA is effective until October 31, 2021 in case of unexpected, long 
weather delays). Of that time, only half of the days would utilize the 
sparker, the only piece of equipment with potential to harass marine 
mammals. NMFS does not assert there is zero possibility that NARWs 
could be encountered but uses the best available science to identify 
that it is highly unlikely a NARW would be present in the project area 
(both Virginia and North Carolina) during this time of year and for 
this short survey. The density estimate considered in estimating take 
was 0.006 NARWs per 100 km\2\. The resulting take calculation was 
0.097, appropriately rounded to zero. In the case that a NARW is 
encountered, Kitty Hawk Wind is required to implement shut down at 500 
m, reduce speeds to 10kts, and maintain a 500 m setback distance to 
avoid take. Overall, NMFS does not anticipate nor authorize take of 
NARWs incidental to the survey. To further ensure that take of NARW 
will not occur, NMFS has limited the effective period of the IHA to a 
very short duration, expiring on October 31, 2021.
    Comment 5: SELC believes NMFS should acknowledge the potential for 
take by Level A harassment from HRG surveys on small cetaceans and 
reconsider the analysis of Level A harassment from HRG surveys on 
harbor porpoises and other acoustically sensitive species.
    Response: NMFS disagrees the potential for Level A harassment i.e., 
permanent threshold shift (PTS) exists from exposure to marine site 
characterization survey sources for any marine mammal, including high 
frequency cetaceans (i.e., harbor porpoise). Given the time of year the 
surveys would occur, harbor porpoise are not normally in the region, 
let alone in close proximity to survey vessel. The take, by Level B 
harassment only, of one harbor porpoise is authorized in the IHA as a 
precautionary measure. Further, as described in the proposed IHA, the 
risk of any marine mammal incurring permanent hearing loss is highly 
unlikely. Kitty Hawk Wind's application identifies conservative 
calculations to the NMFS thresholds that indicate the potential onset 
of PTS. These distances are extremely close to the vessel for low and 
high frequency cetaceans (approximately 18 m and 120 m, respectively). 
The potential for Level A

[[Page 43216]]

harassment of mid-frequency cetaceans essentially does not exist as the 
calculated Level A harassment distance is 0.5 m (based on the SEL 
threshold; received levels exceeding peak thresholds were not reached 
at any distance for any hearing group). These distances are 
conservative as they do not account for the influences of absorption, 
water depth, and/or beamwidth, all of which can result in smaller 
harassment radii.
    Comment 6: SELC acknowledges that the proposed IHA includes 
mitigation measures to avoid vessel strikes yet believes NMFS 
overlooked vessel collisions as a source of potential take and 
recommends vessel collisions should be incorporated into NMFS' take 
analysis. SELC identified that vessels associated with the proposed 
activity will move at speeds well below 10 kts but that NMFS did not 
address potential vessel strike from vessels transiting to and from the 
lease area.
    Response: As described in the proposed IHA, NMFS does not 
anticipate vessel strike of any marine mammal would occur incidental to 
the proposed marine site characterization surveys. Kitty Hawk Wind did 
not request take from vessel strike nor did NMFS authorize any.
    NMFS included a vessel strike analysis in the notice of proposed 
IHA (86 FR 28061, May 25, 2021) under the Potential Effects of 
Specified Activities on Marine Mammals and Their Habitat section. We 
identified that at average transit speed for geophysical survey 
vessels, the probability of serious injury or mortality resulting from 
a strike is less than 50 percent. However, the likelihood of a strike 
actually happening is again low given the smaller size of these vessels 
and generally slower speeds during transit. Further, Kitty Hawk Wind is 
required to implement monitoring and mitigation measures during 
transit, including observing for marine mammals and maintaining defined 
separation distances between the vessel and any marine mammal (see 
Mitigation and Monitoring and Reporting sections below). Finally, 
despite several years of marine site characterization surveys occurring 
off the U.S. east coast, no vessels supporting offshore wind 
development have struck a marine mammal either in transit or during 
surveying. Because vessel strikes are not reasonably expected to occur, 
no take is authorized. The mitigation measures in the IHA related to 
vessel strike avoidance are not limited to vessels operating within the 
WDA or cable corridors and therefore apply to transiting vessels. 
Although the proposed IHA considered this, the final IHA is more clear 
in Condition 4(i) that vessel strike avoidance measures apply to 
vessels during both transit and survey operations phases.
    Comment 7: SELC is concerned that avoidance of NARWs in response to 
survey noise could push NARWs and other large whales out of protected 
areas and into areas with greater risk of vessel collision, such as 
shipping lanes entering the Chesapeake Bay; therefore, vessel strike 
due to displacement should considered in NMFS' take analysis.
    Response: It is unclear what NARW protected areas SELC is referring 
to given the temporal and spatial aspects of the proposed surveys 
(e.g., no seasonal management areas (SMAs) are designated in the 
project area during the survey timeframe). Regardless, we do not 
anticipate that NARWs would be displaced from Kitty Hawk Wind's 
proposed marine site characterization surveys. The survey would occur 
during a time of year when NARW is very low and Kitty Hawk Wind has 
committed to shutting down and avoiding NARWs in the unlikely scenario 
a NARW is encountered such that no Level B harassment is anticipated to 
occur. Further, sources used in the cable corridors are either above 
marine mammal hearing ranges or have such low source levels and narrow 
beam widths that harassment, in absence of mitigation, is not 
anticipated. Therefore, even if a NARW was in the area of the cable 
corridor surveys, a displacement impact is not anticipated.
    Operation of the sparker in the WDA could lead to some avoidance of 
marine mammals for which take is authorized (i.e., non-NARWs) from the 
immediate vicinity of the vessel, but there is no evidence to suggest 
that animals would be displaced hundreds of miles from the WDA to 
shipping lanes near the entrance of the Chesapeake Bay. In summary, 
SELCs concerns do not reflect a likely scenario and NMFS does not 
anticipate NARWs, or any marine mammal, to be displaced to the degree 
risk of vessel strike is increased.
    Comment 8: SELC considers the renewal process to be inconsistent 
with the statutory requirements under section 101(a)(5)(D) of the MMPA, 
including the 30-day public comment requirement.
    Response: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the Renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
Renewal process.
    All IHAs issued, whether an initial IHA or a renewal IHA, are valid 
for a period of not more than one 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. The notice of the proposed IHA published in the 
Federal Register on May 25, 2021 (86 FR 28061) made clear that the 
agency was seeking comment on both the initial proposed IHA and the 
potential issuance of a renewal for this project. Because any renewal 
is limited to another year of identical or nearly identical activities 
in the same location or the same activities that were not completed 
within the effective 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 in the coming months.
    While there would be additional documents submitted with a renewal 
request, for a qualifying renewal these would be limited to 
documentation that NMFS would make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS would also need to confirm, among other things, that 
the activities would occur in the same location; involve the same 
species and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
would also contain a preliminary monitoring report, in order to verify 
that effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15-day public comment 
period 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. 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.
    Comment 9: SELC recommended NMFS impose a seasonal restriction on 
site characterization activities that have

[[Page 43217]]

the potential to injure or harass NARWs. SELC identified this seasonal 
restriction should occur from November 1 through April 30, citing the 
best available scientific information on the relative density of NARWs 
in the mid-Atlantic as well as potential presence of pregnant females 
and mother-calf pairs. SELC further notes that they consider source 
levels greater than 180 dB re 1 [mu]Pa (SPL) at 1-meter at frequencies 
between 7 Hz and 35 kHz to be potentially harmful to low-frequency 
cetaceans.
    Response: As described in the proposed IHA, Kitty Hawk Wind 
anticipates that the marine site characterization surveys will be 
complete by September 31, 2021. Kitty Hawk Wind has committed to this 
and NMFS has limited the effective period of the IHA to October 31, 
2021.
    It is unclear how the commenters determined that source levels 
greater than 180 dB re 1 [mu]Pa (SPL) are potentially harmful to low-
frequency cetaceans. NMFS historically applied a received level (not 
source level) root mean square (rms) threshold of 180 dB SPL as the 
potential for marine mammals to incur PTS (i.e., Level A (injury) 
harassment); however, in 2016, NMFS published it Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing 
which updated the 180 dB SPL Level A harassment threshold. Since that 
time, NMFS has been applying dual threshold criteria based on both peak 
and a weighted (to account for marine mammal hearing) cumulative sound 
exposure level. NMFS released a revised version of the Technical 
Guidance in 2018. We encourage the ENGOs to review the Technical 
Guidance available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance to inform 
future reviews of any proposed IHA on which they may wish to comment. 
As described in the Estimated Take section, NMFS has established a PTS 
(Level A harassment) threshold of 183 dB cumulative SEL for low 
frequency specialists. Based on a conservative model that does not 
account for beamwidth and absorption, a NARW would have to come within 
17.9 m of the sparker to potentially incur PTS. Not only are NARWs 
uncommon during the time of year the survey would occur, Kitty Hawk is 
also required to not approach any NARW within 500 m or operate the 
sparker within 500 m of a NARW. As such, there is no potential for a 
NARW to experience PTS (i.e., Level A harassment) from the proposed 
survey.
    Comment 10: SELC recommends robust and effective real-time 
monitoring and mitigation systems are in place to protected NARWs 
throughout the year.
    Response: NMFS is generally supportive of this concept. A network 
of near real-time baleen whale monitoring devices are active or have 
been tested in portions of New England and Canadian waters. These 
systems employ various digital acoustic monitoring instruments which 
have been placed on autonomous platforms including slocum gliders, wave 
gliders, profiling floats and moored buoys. Systems that have proven to 
be successful will likely see increased use as operational tools for 
many whale monitoring and mitigation applications. The ENGOs cited the 
NMFS publication ``Technical Memorandum NMFS[hyphen]OPR[hyphen]64: NARW 
Monitoring and Surveillance: Report and Recommendations of the National 
Marine Fisheries Service's Expert Working Group'' which is available 
at: https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations. 
This report summarizes a workshop NMFS convened to address objectives 
related to monitoring NARWs and presents the Expert Working Group's 
recommendations for a comprehensive monitoring strategy to guide future 
analyses and data collection. Among the numerous recommendations found 
in the report, the Expert Working Group encouraged the widespread 
deployment of auto-buoys to provide near real-time detections of NARW 
calls that visual survey teams can then respond to for collection of 
identification photographs or biological samples.
    Comment 11: SELC recommends that if a survey is shut down during 
periods of low visibility, including night time, developers should be 
required to wait until daylight hours and good visibility for surveying 
to resume.
    Response: While we acknowledge the limitations inherent in 
detection of marine mammals at night, NMFS disagrees with this 
recommendation. As described in our notice of proposed IHA, the impacts 
of marine site characterization surveys on marine mammals is relatively 
low. No auditory injury is expected to result even in the absence of 
mitigation, given the very small estimated Level A harassment zones (as 
described in Kitty Hawk Wind's application). Any potential impacts to 
marine mammals authorized for take would be limited to short-term 
behavioral responses. Restricting surveys in the manner suggested by 
the commenters may reduce marine mammal exposures by some degree in the 
short term, but, this measure would lead to delays in completing the 
survey which could push the work into times of the year when NARWs are 
present or more abundant. Furthermore, restricting the applicant to 
ramp-up only during daylight hours would have the potential to result 
in lengthy shutdowns of the survey equipment, which could result in the 
applicant failing to collect the data they have determined is necessary 
and, subsequently, the need to conduct additional surveys the following 
year. This would result in significantly increased costs incurred by 
the applicant. Thus, the restriction suggested by the commenters would 
not be practicable for the applicant to implement. In consideration of 
potential effectiveness of the recommended measure and its 
practicability for the applicant, NMFS has determined that restricting 
survey start-ups to daylight hours when visibility is unimpeded is not 
warranted or practicable in this case.
    Comment 12: SELC contends the real-time PAM and shutdown on 
acoustic detections should be required citing that NMFS is relying on 
visual observation as the primary means of detecting NARWs. SELC 
believes the effectiveness of detecting marine mammals with thermal and 
infrared technology is questionable. They acknowledge recent research 
suggests these tool are effective during calm conditions but state that 
NMFS should consider limitations of these systems and ensure that the 
detection of marine mammals is possible at distances out to and beyond 
the exclusion zones prior to reliance on this evolving technology.
    Response: The foremost concern expressed by the ENGOs in making the 
recommendation to require use of PAM is with regard to North Atlantic 
right whales. As described above, the likelihood of a NARW being 
present within the survey area is extremely low. SELC is requesting 
extremely costly and time consuming (i.e., impracticable) monitoring 
and mitigation measures that are not warranted based on the best 
available science indicating extremely low densities of NARWs during 
the effective period of the IHA and that the potential severity of 
impact of the surveys on marine mammals is general considered very low 
and the survey is very short (12.5 days of sparker use during a time 
when NARW density is extremely low).
    SELC does not explain why they expect that PAM would be effective 
in detecting vocalizing mysticetes. It is generally well-accepted fact 
that, even in the absence of additional acoustic

[[Page 43218]]

sources, using a towed passive acoustic sensor to detect baleen whales 
(including right whales) is not typically effective because the noise 
from the vessel, the flow noise, and the cable noise are in the same 
frequency band and will mask the vast majority of baleen whale calls. 
Vessels produce low-frequency noise, primarily through propeller 
cavitation, with main energy in the 5-300 Hertz (Hz) frequency range. 
Source levels range from about 140 to 195 decibel (dB) re 1 [mu]Pa 
(micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on 
factors such as ship type, load, and speed, and ship hull and propeller 
design. Studies of vessel noise show that it appears to increase 
background noise levels in the 71-224 Hz range by 10-13 dB (Hatch et 
al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems 
employ hydrophones towed in streamer cables approximately 500 m behind 
a vessel. Noise from water flow around the cables and from strumming of 
the cables themselves is also low-frequency and typically masks signals 
in the same range. Experienced PAM operators participating in a recent 
workshop (Thode et al., 2017) emphasized that a PAM operation could 
easily report no acoustic encounters, depending on species present, 
simply because background noise levels rendered any acoustic detection 
impossible. The same workshop report stated that a typical eight-
element array towed 500 m behind a vessel could be expected to detect 
delphinids, sperm whales, and beaked whales at the required range, but 
not baleen whales, due to expected background noise levels (including 
seismic noise, vessel noise, and flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
HRG survey activities is limited. First, for this activity, the area 
expected to be ensonified above the Level B harassment threshold is 
relatively small (a maximum of 445 m)--this reflects the fact that, to 
start with, the source level is comparatively low and the intensity of 
any resulting impacts would be lower level and, further, it means that 
inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low--together these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for right whales and other low frequency cetaceans, species 
for which PAM has limited efficacy), and the cost and impracticability 
of implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to ensure the least 
practicable adverse impact on the affected species or stocks and their 
habitat.
    Comment 13: SELC requests NMFS encourage Kitty Hawk Wind to 
collaborate with scientists in collecting data that would increase the 
understanding of the effectiveness of night vision and infrared 
technologies off North Carolina, Virginia and the broader Mid-Atlantic 
region with a view towards utilizing these technologies to commence 
surveys at night in the future.
    Response: NMFS agrees collaboration with scientists to improve the 
understanding of the effectiveness of night vision and infrared 
technologies for all offshore wind development and will encourage Kitty 
Hawk Wind to do so.
    Comment 14: SELC believes the shutdown zones established for 
vessels operating a sparker should be applied to all vessels using 
equipment that operate below 180 kHz because they claim such sources 
have the potential to cause acoustic harassment of marine mammals.
    Response: NMFS disagrees that all sources below 180 kHz have the 
potential to cause harassment and; therefore, shutdown is necessary for 
all equipment operating below 180 kHz. SELC's recommendation does not 
consider fundamental acoustic propagation or consider source operating 
characteristics such as beam width. The Innomar and USBL are non-
impulsive, non-parametric sound sources. The Innomar's beam width is 1 
degree meaning a marine mammal would have to be in a particular part of 
the water column very close to the source (essentially under the 
vessel) to experience sounds loud enough to experience harassment. The 
incredibly short duration of that exposure based on a moving animal and 
moving source does not warrant a shutdown as harassment is not a likely 
outcome of exposure.
    Comment 15: SELC believes the proposed exclusion zone sizes are 
inconsistent with those required for similar activities in other IHAs. 
They cite the previous IHA for HRG surveys in the Kitty Hawk Lease 
Area, wherein NMFS required a 200-meter exclusion zone for all large 
whales, pilot whales, and Risso's dolphins, and question why deviations 
from the 200-m exclusion zone were made. SELC recommends a clearance 
zone of 500 m for all marine mammals and, to the extent feasible, a 
1,000-m exclusion zone for NARWs.
    Response: NMFS disagrees with this recommendation and has 
determined that the exclusion zones included here are sufficiently 
protective. First, we note SELC is incorrect that the previous IHA 
required a 200 m exclusion zone for all large whales, pilot whales, and 
Risso's dolphin. The actual exclusion zones in that referenced IHA 
(both proposed and final) were 500-m for NARWs, 200- m for sei and fin 
whales, and 100-m for all other large cetaceans (humpback whale, minke 
whale, pilot whale, Risso's dolphin). Here, Kitty Hawk Wind must 
implement a 500-m exclusion zone for all ESA-listed whales (i.e., the 
same exclusion zone for NARWs and a larger exclusion zone for fin and 
sei whales). The final IHA also increases the exclusion zone from 
proposed to final such that the final exclusion zone is 100 m. 
Therefore, while there is inconsistency, the IHA includes more 
protective measures for marine mammals than the previous IHA. We note 
that the 500-m exclusion zone for NARWs exceeds the modeled distance to 
the largest Level B harassment isopleth distance (445 m). The 
commenters do not provide any justification for the contention that the 
existing exclusion zones are insufficient, and do not provide any 
rationale for their recommended alternatives (other than that they are 
larger). In summary, SELC's recommendation that the exclusion zone be 
increased to 500-m for all marine mammals (except NARWs) and 1,000-m 
for NARW is unsupported and does not consider the negative operational 
impacts of such a recommendation. NMFS believes more

[[Page 43219]]

frequent shutdowns due to these measures would unnecessarily increase 
survey duration, potentially pushing the project into times when NARWs 
are more likely to be present.
    Comment 16: SELC recommended that a combination of visual 
monitoring--by four protected species observers adhering to ``two-on/
two-off'' schedule--and PAM should be used at all times that survey 
work is underway, and, for efforts that continue into the nighttime, 
night vision or infrared technology should also be used.
    Response: NMFS typically requires that a single protected species 
observer (PSO) must be stationed at the highest vantage point and 
engaged in general 360-degree scanning during daylight hours only. 
Although NMFS acknowledges that the single PSO cannot reasonably 
maintain observation of the entire 360-degree area around the vessel, 
it is reasonable to assume that the single PSO engaged in continual 
scanning of such a small area (i.e., 500- m EZ, which is greater than 
the maximum 141-m harassment zone) will be successful in detecting 
marine mammals that are available for detection at the surface. The 
monitoring reports submitted to NMFS have demonstrated that PSOs active 
only during daylight operations are able to detect marine mammals and 
implement appropriate mitigation measures. Kitty Hawk Wind proposed 
using two PSOs and night vision/infrared technology during nighttime 
operations. This was included in their application and the proposed IHA 
made available for public comment; therefore, the portion of the 
comment related to using night vision technology has been satisfied. 
Regarding PAM, we refer to our response to Comment 12 in that use of 
PAM is not warranted given the very low level of impact from the survey 
should a marine mammal be exposed to sparker use and the 
impracticability of implementing PAM during the very short survey.
    Comment 17: SELC does not agree with the proposal to waive the 
shutdown requirement for certain species of small delphinid. They are 
particularly concerned that this exemption will leave the two stocks of 
bottlenose dolphin, which are designated as depleted and/or strategic 
under the MMPA, without adequate shutdown protections and therefore 
NMFS should remove all stocks of bottlenose dolphin from this 
exemption.
    Response: The only stock likely to be present within the WDA during 
use of the sparker, and for which take is authorized, is the offshore 
stock of bottlenose dolphins. This stock is not a depleted or strategic 
stock. While the northern and southern migratory coastal stocks are 
depleted and strategic, they are likely to be found within the transit 
corridor where the Furgo sparker is not used. As previous described, 
the sources used in the transit corridor operate about 180 kHz (outside 
of marine mammal hearing) or do not have the potential to result in 
harassment due to their operating characteristics (e.g., very narrow 
beam width). Therefore, NMFS retained the shutdown requirement as 
proposed.
    Comment 18: SELC recommends a mandatory speed restriction of 10 kts 
for all project vessels within any designated dynamic management area 
(DMA) for NARWs.
    Response: The measure that all vessels traveling within a DMA was 
included as condition 4(i)(i) of the proposed IHA that was made 
available for public comment. The condition that all project vessels 
(while in transit or during active surveying) travel at 10 kts or less 
in both a DMA and an acoustically-triggered Slow Zone is included in 
the final IHA. However, we note that given the location and time of 
year surveys will occur, it is unlikely a DMA or acoustically-triggered 
slow zone would be established.
    Comment 19: SELC believes a sighting of three of more NARWs is too 
high of a bar to trigger a DMA and recommends NMFS expand the DMA 
requirement to include sightings of mother-calf pairs.
    Response: DMAs are a component of the 2008 Final Rule To Implement 
Speed Restrictions to Reduce the Threat of Ship Collisions With NARWs 
(73 FR 60173, October 10, 2008). The rule was promulgated to minimize 
lethal ship strikes of NARWs and based on the best available science. 
DMAs are triggered based on the analysis and findings of Clapham and 
Pace (2001). Any changes to the DMA program regarding modifying the 
triggering of a DMA is outside the scope of the proposed IHA to Kitty 
Hawk Wind. We note that despite being established alongside NOAA's 
mandatory vessel speed regulations in Seasonal Management Areas in 
2008, the DMA program is voluntary for the general public. However, as 
described in the IHA, Kitty Hawk Wind is required to reduce vessel 
speeds to 10 kts should a NARW mother/calf pair be observed.
    Comment 20: SELC requests PAM should be employed in all transit 
lanes to supplement the efforts of observers in visually detecting 
marine mammals.
    Response: As noted in our response to Comment 12, SELC is 
requesting costly monitoring be employed that is not warranted and is 
impracticable for the applicant to implement. Despite years of effort, 
no marine site characterization vessels in the U.S., either in transit 
or during active surveying and which operate under PSO requirements as 
the ones included in the IHA, have never struck a marine mammal. NMFS 
is also unaware of any marine site characterization vessel strikes in 
Europe. The vessels involved will work 24-hrs per day; therefore, 
transit time is very limited to essentially to and from the WDA upon 
onset and completion of the survey with some limited potential for 
transit to sheltered waters in the case of foul weather.

Changes From Proposed IHA to Final IHA

    The effective period of the IHA is now limited to July 15, 2021 
through October 31, 2021 to ensure no take of NARWs. We have also 
increased the clearance zone for all Endangered Species Act (ESA)-
listed marine mammals (not just NARWs) to 500 m; increased the vessel 
separation distance for all ESA-listed marine mammals during both 
surveying and transit to 500 m; and included a 10 knot speed 
restriction for vessels traveling in an acoustically-triggered slow 
zone (the proposed IHA contained a 10 knot speed restriction for 
dynamic management areas (DMAs) only).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks that may occur within the 
survey area and summarizes information related to the population or 
stock, including regulatory status under the MMPA and ESA and potential 
biological removal (PBR), where known. For taxonomy, we follow 
Committee on Taxonomy (2021). PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS's 
SARs). While no mortality is anticipated

[[Page 43220]]

or authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species and other threats.
    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 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., 2019, 2020). All values presented in Table 2 are the most 
recent available at the time of publication and are available in the 
2019 SARs and draft 2020 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                         Table 2--Summary Information of Species Within the Proposed Survey Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western North Atlantic.  E/D; Y              368 (-; 356; 2020) \4\        0.8       18.6
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,393 (0; 1,375; 2016)         22         58
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E/D; Y              6,802 (0.24; 5,573;            11       2.35
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.02; 3,098;           6.2        1.2
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -/-; N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.                                                        2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  NA.....................  E; Y                4,349 (0.28;3,451; See        3.9          0
                                                                                                             SAR).
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -/-; N              39,215 (0.30; 30,627;         306         21
                                                                                                             See SAR).
    Short finned pilot whale........  Globicephala             Western North Atlantic.  -/-; Y              28,924 (0.24; 23,637;         236        160
                                       macrorhynchus.                                                        2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -/-; N              62,851 (0.23; 51,914,         519         28
                                                                Offshore.                                    2016).
                                                               W.N.A. Northern          -/-; Y              6,639 (0.41, 4,759,            48  12.2-21.5
                                                                Migratory Coastal.                           2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -/-; N              172,947 (0.21;              1,452        399
                                                                                                             145,216; 2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -/-; N              39,921 (0.27; 32,032;         320          0
                                                                                                             2012).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -/-; N              35,493 (0.19; 30,289;         303       54.3
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        217
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -/-; N              75,834 (0.15; 66,884,       2,006        350
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ 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 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.
\2\ 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. In some cases, CV is not applicable.
\3\ 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, ship strike). Annual 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.
\4\ Pace et al 2021.

    All species that could potentially occur in the proposed survey 
areas are included in Table 2. While NARWs, sei and sperm whales, and 
harbor seals have been sighted within the survey area, the temporal 
occurrence of the surveys (summer/early fall) does not overlap with the 
time of year these species may be present in the survey area as most of 
these species are in northern latitudes during this time. For these 
reasons, along with the very short duration of the survey, we consider 
the potential for take of these species de minimus and they will not be 
discussed further.
    In addition to what is included in Sections 3 and 4 of the 
application, the SARs, and NMFS' website, further detail informing the 
baseline for select species (e.g., information regarding current 
Unusual Mortality Events (UME) and important habitat areas) was 
provided in the notice of proposed IHA (86 FR 28061; May 25, 2021) and 
is not repeated here. No new information is available since publication 
of that notice.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007)

[[Page 43221]]

recommended that marine mammals be divided into functional hearing 
groups based on directly measured or estimated hearing ranges on the 
basis of available behavioral response data, audiograms derived using 
auditory evoked potential techniques, anatomical modeling, and other 
data. Note that no direct measurements of hearing ability have been 
successfully completed for mysticetes (i.e., low-frequency cetaceans). 
Subsequently, NMFS (2018) described generalized hearing ranges for 
these marine mammal hearing groups. Generalized hearing ranges were 
chosen based on the approximately 65 dB threshold from the normalized 
composite audiograms, with the exception for lower limits for low-
frequency cetaceans where the lower bound was deemed to be biologically 
implausible and the lower bound from Southall et al. (2007) retained. 
Marine mammal hearing groups and their associated hearing ranges are 
provided in Table 3.

                  Table 3--Marine Mammal Hearing Group
                              [NMFS, 2018]
------------------------------------------------------------------------
              Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen      7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,   150 Hz to 160 kHz.
 toothed whales, beaked whales,
 bottlenose whales).
High-frequency (HF) cetaceans (true       275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true  50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea  60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Nine marine mammal species (all cetaceans) have the reasonable 
potential to be taken by the survey activities (Table 5). Of the 
cetacean species that may be present, three are classified as low-
frequency cetaceans (i.e., all mysticete species), five are classified 
as mid-frequency cetaceans (i.e., all delphinid species), and one is 
classified as a high-frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The notice of proposed IHA included a summary of the ways that 
Kitty Hawk Wind's specified activity may impact marine mammals and 
their habitat (86 FR 28061; May 25, 2021). In summary, the potential 
effects of Kitty Hawk Wind's specified survey activity are expected to 
be limited to Level B harassment of select marine mammal species. No 
permanent or temporary auditory effects, or significant impacts to 
marine mammal habitat, including prey, are expected. No new information 
is available that would change our previous analysis; therefore, we 
refer the reader to the aforementioned notice of proposed IHA rather 
than repeating the details here. The Estimated Take section includes a 
quantitative analysis of the number of individuals that are expected to 
be taken by Kitty Hawk Wind's activity. The Negligible Impact Analysis 
and Determination section considers the potential effects of the 
specified activity, the Estimated Take section, and the Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and how those impacts on individuals are likely to impact marine mammal 
species or stocks.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals produced by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated (even absent mitigation), nor authorized. Consideration of 
the anticipated effectiveness of the mitigation measures (i.e., 
exclusion zones and shutdown measures), discussed in detail below in 
the Mitigation section, further strengthens the conclusion that Level A 
harassment is not a reasonably anticipated outcome of the survey 
activity. As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the take estimates.

[[Page 43222]]

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 160 dB re 1 [mu]Pa (rms) for the impulsive sources 
(i.e., sparkers) evaluated here for Kitty Hawk Wind's proposed 
activity.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). For more 
information, see NMFS' 2018 Technical Guidance, which may be accessed 
at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Kitty Hawk Wind's proposed activity includes the use of impulsive 
(i.e., sparkers) sources. However, as discussed above, NMFS has 
concluded that Level A harassment is not a reasonably likely outcome 
for marine mammals exposed to noise through use of the sources proposed 
for use here, and the potential for Level A harassment is not evaluated 
further in this document. Please see Kitty Hawk Wind's application for 
details of a quantitative exposure analysis exercise, i.e., calculated 
Level A harassment isopleths and estimated Level A harassment 
exposures. Maximum estimated Level A harassment isopleths ranged from 0 
to 2 m for all sources and hearing groups with the exception of the 
Furgo 2D Sparker). The Level A harassment isopleth for low frequency, 
mid-frequency, and high frequency cetaceans was 18, 0.5, and 120.5 m, 
respectively and 10 m for phocids. Kitty Hawk Wind did not request 
authorization of take by Level A harassment, and we did not authorize 
Level A harassment in the IHA.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The Fugro SPR EAH 2D sparker is the only source with the potential 
to result in marine mammal harassment; therefore, the 160 
dBrms isopleth resulting from this source is applied in 
ensonified area calculations. As noted previously, Kitty Hawk Wind 
intends to survey a total track-line distance of 3,300 km over the 
course of 25 days. It is estimated that the sparker will be in 
operation for approximately 50 percent of this duration. During the 
remainder of survey days, only sources not expected to have the 
potential to result in take of marine mammals would be used. To be 
conservative, the sparker has been assigned a duration of 13 days 
(instead of 12.5 days). The distance to the 160 dBrms Level 
B harassment isopleth is calculated using the conservative practical 
spreading model and a source level of 213dBrms (Table 1). 
The resulting isopleth is 445 m.
    Kitty Hawk then considered track line coverage and isopleth 
distance to estimate the maximum ensonified area over a 24-hr period, 
also referred to as the zone of influence (ZOI). The estimated distance 
of the daily vessel track line was determined using the estimated 
average speed of the vessel (3 knots [5.6 km/hr]) over a 24-hr 
operational period for a total daily track line coverage of 134.4 km. 
The ZOI was calculated by squaring the respective maximum distance to 
the Level B harassment threshold (445 m) and multiplying by the 
estimated daily vessel track line distance of approximately 134.4 km to 
obtain the area of a box (118.7km\2\). Then the ensonified area around 
the vessel at any given point (0.63) was added to that area to account 
for \1/2\ of a circle at each end of the box. The resulting ZOI is 
119.3km\2\ (Table 4).
    The ZOI is a representation of the maximum extent of the ensonified 
area around a sound source over a 24-hr period. The ZOI was calculated 
per the following formula:

ZOI = (Distance/day x 2r) + [pi]r\2\

                                   Table 4--Ensonified Area During Sparker Use
----------------------------------------------------------------------------------------------------------------
                                                 Number of     Estimated total     Estimated
              Survey equipment                 active survey    line distance     distance per     ZOI per day
                                                   days a            (km)           day (km)         (km\2\)
----------------------------------------------------------------------------------------------------------------
Fugro SPR EAH 2D Sparker....................              13            1,700            133.4            119.3
----------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) 
represent the best available information regarding marine mammal 
densities in the survey area. The density data presented by Roberts et 
al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates 
data from 8 physiographic and 16 dynamic oceanographic and biological 
covariates, and controls for the influence of sea state, group size, 
availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at https://

[[Page 43223]]

seamap.env.duke.edu/models/Duke/ EC/. 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., 2016, 2017, 2018, 2020). 
The updated models incorporate additional sighting data, including 
sightings from NOAA's Atlantic Marine Assessment Program for Protected 
Species (AMAPPS) surveys.
    Monthly density grids (e.g., rasters) for each species were 
overlain with the Survey Area and values from all grid cells that 
overlapped the Survey Area were averaged to determine monthly mean 
density values for each species. Monthly mean density values within the 
Survey Area were averaged by season (Winter [December, January, 
February], Spring [March, April, May], Summer [June, July, August], 
Fall [September, October, November]) to provide seasonal density 
estimates. Since the HRG surveys would only occur during summer and 
fall, only those values were used in the take estimation analysis. 
Within each survey segment (Wind Development Area and offshore export 
cable corridor), the highest seasonal density estimates during the 
duration of the proposed survey were used to estimate take.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    For most species, the authorized take amount is equal to the 
calculated take amount resulting from the following equation: D x ZOI x 
13 days. We note the densities provided in Table 5 represent the number 
of animals/100 km; therefore, the density is normalized to 1km in the 
equation. However, for some species, this equation does not reflect 
those species that can travel is large groups--an important parameter 
to consider that is not captured by density values. The equation also 
does not capture the propensity of some delphinid species to be 
attracted to the vessel and bowride. Therefore, to account for these 
real-world situations, the authorized take is a product of group size. 
For large groups of spotted and short beaked common dolphins knowing 
their affinity for bow riding (and therefore coming very close to the 
vessel), Kitty Hawk Wind assumed one group could be taken each day of 
sparker operations (13 days). Based on previous survey data, as 
described in previous monitoring reports, Kitty Hawk Wind assumes an 
average group size for spotted dolphins is 16 in the survey area. For 
common dolphins, the overall average reported group size was 4 in all 
survey areas but the average group size during the geotechnical surveys 
was 17 individuals. Therefore, in this case, Kitty Hawk Wind assumed a 
group of 17 common dolphins could be taken on any given day of sparker 
operation. For Risso's dolphin and pilot whales, one group is 
anticipated to be taken over the 13 days of sparker operations. Average 
group size for these species are 25 and 20, respectively (Reeves et al. 
2002). Take for all other species is a reflection of the calculated 
take. Given the timing and location of the surveys, Kitty Hawk Wind is 
not requesting, nor are we proposing to authorize, take of NARWs or sei 
whales. Table 5 provides the amount of take authorized in the IHA.

                                Table 5--Marine Mammal Density and Take Estimates
----------------------------------------------------------------------------------------------------------------
                                                      Max avg
                                                     seasonal
            Species                   Stock           density       Calculated      Authorized      Percent of
                                                   (animals/ 100       take            take         population
                                                    km\2\) \1\
----------------------------------------------------------------------------------------------------------------
Humpback whale................  Gulf of Maine...           0.084           1.297               1              <1
Fin whale.....................  Western North              0.171           2.648               3              <1
                                 Atlantic.
Minke whale...................  Canadian East              0.105           1.634               2              <1
                                 Coast.
Pilot whales..................  Western North              0.073           1.139          \3\ 20              <1
                                 Atlantic.
Harbor porpoise...............  Gulf of Maine/             0.033           0.510               1              <1
                                 Bay of Fundy.
Bottlenose dolphin \2\........  Western North              7.913         122.725             123              <1
                                 Atlantic,
                                 offshore.
Common dolphin................  Western North              1.583          24.555         \4\ 221              <1
                                 Atlantic.
Atlantic spotted dolphin......  Western North              7.669         118.937         \4\ 208              <1
                                 Atlantic.
Risso's dolphin...............  Western North              0.058           0.893          \4\ 25              <1
                                 Atlantic.
----------------------------------------------------------------------------------------------------------------
\1\ Density values from Duke University (Roberts et al. 2016b, 2017, 2018, 2020).
\2\ Estimates based on bottlenose dolphin stock preferred water depths (Reeves et al. 2002; Waring et al. 2016).
\3\ Roberts (2018) only provides density estimates for ``generic'' pilot whales and seals; therefore, an equal
  potential for takes has been assumed either for species or stocks within the larger group. The take adjusted
  from calculated value to account for encountering one group over the course of the 13 days of sparker use.
\4\ Take adjusted from calculated take to account for encountering one group on each of the 13 days of sparker
  use.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which

[[Page 43224]]

may consider such things as cost and impact on operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS proposes that the following mitigation measures be implemented 
during Kitty Hawk Wind's planned marine site characterization surveys.

Marine Mammal Shutdown Zones

    An immediate shutdown of the Sparker would be required if a marine 
mammal is sighted entering or within its respective exclusion zone 
(Table 6). 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 exclusion zone or until 
an additional time period has elapsed (i.e., 30 minutes for all other 
species). Table 6 provides the required shutdown zones.

               Table 6--Shutdown Zones During Sparker Use
------------------------------------------------------------------------
                                                                Shutdown
                           Species                              zone (m)
------------------------------------------------------------------------
ESA-listed marine mammals....................................        500
Non-ESA marine mammals \1\...................................        100
------------------------------------------------------------------------
\1\ If a delphinid from specified genera is visually detected
  approaching the vessel (i.e., to bow ride) or towed equipment,
  shutdown is not required.

Pre-Clearance of the Shutdown Zones

    Kitty Hawk Wind would implement a 30-minute pre-clearance period of 
the shutdown zones prior to the initiation of ramp-up of HRG equipment. 
During this period, the exclusion zone will be monitored by the PSOs, 
using the appropriate visual technology. Ramp-up may not be initiated 
if any marine mammal(s) is within its respective shutdown zone. If a 
marine mammal is observed within the shutdown zone during the pre-
clearance period, ramp-up may not begin until the animal(s) has been 
observed exiting its respective shutdown zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes, and 30 minutes for all other species). Kitty Hawk 
Wind must clear an area of 500 m for all ESA-listed marine mammals and 
100 m for all other marine mammals around the sparker prior to 
commencing a survey (or when a break in operation greater than 30 
minutes occurs).

Shutdown Procedures

    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 shutdown zone or the 
relevant time period has lapsed without re-detection (15 minutes for 
small odontocetes and seals, and 30 minutes for all other species).
    The shutdown requirement would be waived for small delphinids of 
the following genera: Delphinus, Stenella (frontalis only), and 
Tursiops. Specifically, if a delphinid from the specified genera s 
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 
judgement in making the decision to call for a shutdown. Additionally, 
shutdown is required if a delphinid detected in the exclusion zone and 
belongs to a genus other than those specified.
    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 only if the PSOs have maintained constant 
observation and the shutdown zone is clear of marine mammals. If the 
source is turned off for more than 30 minutes, it may only be restarted 
after PSOs have cleared the shutdown zones for 30 minutes.
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (445 m), shutdown would be required.

Ramp-Up

    The Fugro SPR EAH 2D Sparker operates on a binary on/off switch and 
thus ramp-up is not technically feasible for this piece of equipment.

Vessel Strike Avoidance

    Kitty Hawk Wind will ensure that vessel operators and crew maintain 
a vigilant watch for marine mammals and slow down or stop their vessels 
to avoid striking these species. All personnel responsible for 
navigation and marine mammal observation duties will receive site-
specific training on marine mammals sighting/reporting and vessel 
strike avoidance measures. Vessel strike avoidance measures would 
include the following, except under circumstances when complying with 
these requirements would put the safety of the vessel or crew at risk:
     Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the appropriate separation 
distance around the vessel (distances stated below). 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 to 
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 vessels (e.g., source vessels, chase vessels, supply 
vessels), regardless of size, must observe a 10-knot speed restriction 
in the unlikely scenario a NARW dynamic management area (DMA) is in 
effect;
     All vessels must reduce their speed to 10 knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel underway;
     All vessels must maintain a minimum separation distance of 
500 m from all ESA-listed marine mammals. If a whale is observed but 
cannot be confirmed as a species other than an ESA-listed whale, the 
vessel operator must assume that it is an ESA-listed whale and take 
appropriate action;
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 100 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);
     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). 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

[[Page 43225]]

until animals are clear of the area. This does not apply to any vessel 
towing gear or any vessel that is navigationally constrained; and
     These requirements do not apply in any case where 
compliance would 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.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. Prior to implementation with 
vessel crews, the training program will be provided to NMFS for review 
and approval. Confirmation of the training and understanding of the 
requirements will be documented on a training course log sheet. Signing 
the log sheet will certify that the crew member understands and will 
comply with the necessary requirements throughout the survey 
activities.
    Based on our evaluation of Kitty Hawk Wind's proposed measures, 
NMFS has determined that the mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
planned action area. Effective reporting is critical both to compliance 
as well as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Kitty Hawk Wind would 
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.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including exclusion zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established exclusion zones 
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) would ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and would 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 observation per 24-
hour period. In cases where multiple vessels are surveying 
concurrently, any observations of marine mammals would 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 exclusion zones. 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 would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 3 
or less), to the maximum extent practicable, PSOs would 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 would be relayed to the 
PSO team.
    Data on all PSO observations would be recorded based on standard 
PSO collection requirements. This would 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, behavior); and details of any observed marine mammal 
behavior that occurs (e.g., noted behavioral disturbances).

[[Page 43226]]

Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a final technical 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. 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 name;
     Dates and times (Greenwich Mean Time) 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, Beaufort sea state, 
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 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.
    Although not anticipated, if a NARW is observed at any time by PSOs 
or personnel on any project vessels, during surveys or during vessel 
transit, Kitty Hawk Wind must immediately report sighting information 
to the NMFS NARW Sighting Advisory System: (866) 755-6622. NARW 
sightings in any location must also be reported to the U.S. Coast Guard 
via channel 16.
    In the event that Kitty Hawk Wind personnel discover an injured or 
dead marine mammal, Kitty Hawk Wind would report the incident to the 
NMFS Office of Protected Resources (OPR) and the NMFS Southeast Marine 
Mammal Stranding Network within 24 hours. The report would 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 ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Kitty Hawk 
Wind would report the incident to the NMFS OPR and the NMFS Southeast 
Marine Mammal Stranding Network within 24 hours. The report would 
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, 
Beaufort sea state, 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).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number

[[Page 43227]]

of takes alone is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through harassment, NMFS 
considers other factors, such as the likely nature of any responses 
(e.g., intensity, duration), the context of any responses (e.g., 
critical reproductive time or location, migration), as well as effects 
on habitat, and the likely effectiveness of the mitigation. We also 
assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS's implementing regulations (54 FR 
40338; September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the environmental baseline (e.g., as reflected in the 
regulatory status of the species, population size and growth rate where 
known, ongoing sources of human-caused mortality, or ambient noise 
levels).
    To avoid repetition, our analysis applies to all the species listed 
in Table 5, given that NMFS expects the anticipated effects of the 
planned survey to be similar in nature. NMFS does not anticipate that 
serious injury or mortality would occur as a result from HRG surveys, 
even in the absence of mitigation, and no serious injury or mortality 
is authorized. As discussed in the Potential Effects of Specified 
Activities on Marine Mammals and their Habitat section, non-auditory 
physical effects and vessel strike are not expected to occur. NMFS 
expects that all potential takes would be in the form of short-term 
Level B behavioral harassment in the form of temporary avoidance of the 
area or decreased foraging (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). Even repeated 
Level B harassment of some small subset of an overall stock is unlikely 
to result in any significant realized decrease in viability for the 
affected individuals, and thus would not result in any adverse impact 
to the stock as a whole. As described previously due to the nature of 
the operations, Level A harassment is not expected even in the absence 
of mitigation. The small size of the Level A harassment zones and the 
required shutdown zones for certain activities further bolster this 
conclusion. In addition to being temporary, the maximum expected Level 
B harassment zone around a survey vessel is 445 m, producing expected 
effects of particularly low severity. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
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. There 
are no rookeries, mating or calving grounds known to be biologically 
important to marine mammals within the planned survey area at the time 
of survey (the biologically important area (BIA) for NARWs is for a 
time period outside the proposed survey time period) and there are no 
primary feeding areas known to be biologically important to marine 
mammals within the planned survey area. In addition, there is no 
designated critical habitat for any ESA-listed marine mammals in the 
planned survey area.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures (e.g., 
shutdown) would further reduce exposure to sound that could result in 
more severe behavioral harassment. In summary, and as described above, 
the following factors primarily support our determination that the 
impacts resulting from this activity are not expected to adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed to be authorized;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area and could occur over a very short time 
period (13 days);
     No areas of particular importance to marine mammals (e.g., 
BIA, critical habitat) occur within the survey area; and
     Impacts on marine mammal habitat and species that serve as 
prey species for marine mammals are expected to be minimal and the 
alternate areas of similar habitat value for marine mammals are readily 
available.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the proposed activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities. For this IHA, take of 
all species or stocks is below one third of the estimated stock 
abundance (in fact, take of individuals is less than 7 percent of the 
abundance for all affected stocks).
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

[[Page 43228]]

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    On June 29, 2021, NMFS Greater Atlantic Regional Fisheries Office 
(GARFO) completed programmatic consultation pursuant to section 7 of 
the ESA concerning the effects of certain site assessment and site 
characterization activities to be carried out to support the siting of 
offshore wind energy development projects off the U.S. Atlantic coast. 
The consultation concluded that marine site assessment surveys, such as 
those proposed by Kitty Hawk Wind, may affect but are not likely to 
adversely affect, ESA-listed marine mammals provided the project design 
criteria and best management practices identified in that consultation 
are followed. The scope of Kitty Hawk Wind's surveys fall within the 
scope of the activities analyzed in that consultation and NMFS has 
included a provision in the IHA that all consultation project design 
criteria (PDCs) and best management practices (BMPs) be adhered to. 
Consideration of potential issuance of IHA by NMFS OPR for Survey 
Activities was also included; therefore, NMFS action of issuing an IHA 
to Kitty Hawk Wind is covered by the 2021 programmatic consultation.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (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 of the IHA qualifies to be categorically excluded from further 
NEPA review.

Authorization

    NMFS has issued an IHA to Kitty Hawk Wind for the potential 
harassment of small numbers of nine species marine mammal species 
incidental to conducting marine site characterization surveys offshore 
of Virginia and North Carolina provided the mitigation, monitoring and 
reporting requirements contained within the IHA are followed.

    Dated: July 27, 2021.
Angela Somma,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-16774 Filed 8-5-21; 8:45 am]
BILLING CODE 3510-22-P