[Federal Register Volume 88, Number 118 (Wednesday, June 21, 2023)]
[Notices]
[Pages 40212-40220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13118]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD032]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Site Characterization Surveys 
Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC

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

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

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SUMMARY: NMFS has received a request from Vineyard Northeast, LLC 
(Vineyard Northeast) for authorization to take marine mammals 
incidental to marine site characterization surveys offshore from 
Massachusetts to New Jersey in the Bureau of Ocean Energy Management 
(BOEM) Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and 
OCS-A 0544 (Lease Areas) and associated offshore export cable corridor 
(OECC) routes.

DATES: Comments and information must be received no later than July 21, 
2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written

[[Page 40213]]

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

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

SUPPLEMENTARY INFORMATION: 

Background

    The activities described in Vineyard Northeast's request and the 
acoustic sources proposed for use are identical to what was previously 
analyzed in support of the IHA issued by NMFS to Vineyard Northeast for 
2022 site characterization surveys (2022 IHA) (87 FR 30872, May 20, 
2022; 87 FR 52913, August 30, 2022), although the survey duration and 
project area will be a subset of the survey effort authorized for the 
2022 IHA as a portion of this effort has been completed. All proposed 
mitigation, monitoring, and reporting requirements remain the same. 
While Vineyard Northeast's planned activity would qualify for renewal 
of the 2022 IHA, due to the availability of updated marine mammal 
density data (https://seamap.env.duke.edu/models/Duke/EC/), which NMFS 
has determined represents the best available scientific data, NMFS has 
determined to proceed with a new IHA process rather than a renewal, 
providing a 30-day period for the public to comment on this proposed 
action.
    Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue an IHA to allow Vineyard 
Northeast to incidentally take marine mammals during the specified 
activities. NMFS is also requesting comments on a possible 1-year 
Renewal IHA that could be issued under certain circumstances and if all 
requirements are met, as described in Request for Public Comments at 
the end of this notice. NMFS will consider public comments prior to 
making any final decision on the issuance of the requested MMPA 
authorization and agency responses will be summarized in the final 
notice of our decision.
    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.

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 NOAA Administrative Order 216-6A, which do not 
individually or cumulatively have the potential for significant impacts 
on the quality of the human environment and for which we have not 
identified any extraordinary circumstances that would preclude this 
categorical exclusion. Accordingly, NMFS has preliminarily determined 
that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review.
    We will review all comments submitted in response to this 
notification prior to concluding our NEPA process or making a final 
decision on the IHA request.

Summary of Request

    On April 17, 2023, NMFS received a request from Vineyard Northeast 
for an IHA to take marine mammals incidental to high resolution 
geophysical (HRG) marine site characterization surveys offshore from 
Massachusetts to New Jersey in the areas of BOEM Commercial Lease of 
Submerged Lands for Renewable Energy Development on the OCS-A 0522 
(Lease Area), OCS-A 0544 (Lease Area), and associated offshore export 
cable corridor (OECC) routes. Following NMFS' review of the 
application, Vineyard Northeast submitted a revised request on May 25, 
2023. The application (the 2023 request) was deemed adequate and 
complete on May 25, 2023. Vineyard Northeast's request is for take of 
19 species (comprising 20 stocks) of marine mammals, by Level B 
harassment only. Neither Vineyard Northeast nor NMFS expect serious 
injury or mortality to result from this activity and, therefore, an IHA 
is appropriate. Take by Level A harassment (injury) is unlikely, even 
absent mitigation, based on the characteristics of the signals produced 
by the acoustic sources planned for use.
    NMFS has previously issued a similar IHA to Vineyard Northeast. On 
December 17, 2021, NMFS received a request from Vineyard Northeast for 
an IHA to take marine mammals incidental to marine site 
characterization surveys offshore from Massachusetts to New Jersey, in 
the area of Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and 
OCS-A 0544 (Lease Areas) and potential OECC routes to landfall 
locations. Vineyard Northeast requested authorization to take small 
numbers of 19 species (comprising 20 stocks) of marine mammals by Level 
B harassment only. NMFS published a notice of the proposed IHA in the 
Federal Register

[[Page 40214]]

on May 20, 2022 (87 FR 30872). After a 30-day public comment period and 
consideration of all public comments received, we subsequently issued 
the 2022 IHA, which is effective from July 27, 2022, to July 26, 2023 
(87 FR 52913, August 30, 2022).
    Vineyard Northeast completed a subset of the survey work under the 
2022 IHA and submitted a preliminary monitoring report, which 
demonstrates that they conducted the required marine mammal mitigation 
and monitoring, and did not exceed the authorized levels of take under 
the previous IHA issued for surveys offshore from Massachusetts to New 
Jersey (See 87 FR 52913, August 30, 2022). These monitoring results are 
available to the public on our website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The 2023 request is nearly identical to the 2022 IHA, with the 
exception that the survey effort is a subset of the original effort 
authorized for the 2022 IHA. However, Duke University's Marine 
Geospatial Ecology Laboratory released updated marine mammal density 
information (June 20, 2022) for all species in the project area 
(https://seamap.env.duke.edu/models/Duke/EC/ EC/) after issuance of the 
2022 IHA, and NMFS determined it would issue a proposed IHA rather than 
undertake the renewal process. In evaluating the 2023 request and to 
the extent deemed appropriate, NMFS also relies on the information 
presented in notices associated with issuance of the 2022 IHA (87 FR 
30872, May 30 2022; 87 FR 52913, August 30, 2022).

Description of the Proposed Activity and Anticipated Impacts

Overview

    Vineyard Northeast proposes to conduct HRG surveys in the BOEM 
Lease Areas OCS-A 0522 and 0544 and along potential submarine OECC's 
from southern Massachusetts to southern New Jersey. The purpose of the 
proposed surveys is to obtain an assessment of seabed (geophysical, 
geotechnical, and geohazard), ecological, and archeological conditions 
within the footprint of the planned offshore wind facility development 
area. Surveys are also conducted to inform and support engineering 
design and to map unexploded ordnance. Survey equipment would be 
deployed from multiple vessels during site characterization activities 
in the project area, and up to two vessels would operate at a time in 
the lease areas and along the OECCs. During survey effort, the vessel 
would operate at a maximum speed of 4 knots (4.6 miles or 7.4 km per 
hour). Underwater sound, resulting from Vineyard Northeast's 
activities, has the potential to result in incidental take of marine 
mammals in the form of Level B harassment.

Dates and Duration

    The proposed activity is estimated to require 467 survey days 
(37,360 km of trackline) using a maximum of 4 concurrently operating 
survey vessels, and is expected to be carried out over the course of 
the 1-year period beginning from the date of issuance of this IHA. A 
``survey day'' is defined as a 24-hour (hr) activity period in which 
active HRG acoustic sources are used. This schedule is inclusive of any 
inclement weather downtime and crew transfers. The number of survey 
days was calculated as the number of days needed to reach the overall 
level of effort required to meet survey objectives assuming any single 
vessel covers, on average, 80 km (49.7 miles) of survey trackline per 
24 hours of operations. By the time the 2022 IHA expires, Vineyard 
Northeast expects to have completed 302 vessel days (24,160 km of 
trackline) of the original planned survey effort (869 vessel days; 
69,520 km of trackline). Vineyard Northeast has estimated survey effort 
to require 100 vessel days (8,000 km of trackline) less than originally 
anticipated in association with the 2022 IHA (87 FR 52913, August 30, 
2022).

Specific Geographic Region

    Vineyard Northeast's proposed activities would occur in both 
Federal offshore waters (including Lease Areas OCS-A 0522 and OCS-A 
0544) and along potential OECCs in both Federal and State nearshore 
waters of Massachusetts, Rhode Island, Connecticut, New York, and New 
Jersey, as shown in Figure 1. As compared to the 2022 IHA (87 FR 52913, 
August 30, 2022), Vineyard Northeast revised their project area to be 
more representative of the actual area in which HRG surveys would 
occur. The revised project area description is based upon updated 
information received from the Vineyard Northeast site investigation 
team.
    The Lease Area OCS-A 0522 is approximately 536 square kilometers 
(km\2\) (132,370 acres) and located 24 kilometers (km) (15 miles; mi) 
from the southeast corner of Martha's Vineyard, within the 
Massachusetts Wind Energy Area (WEA). The 174 km\2\ (43,056 acre) Lease 
Area OCS-A 0544 is located approximately 38 km (24 mi) from Long 
Island, New York, within BOEM's Mid-Atlantic Planning Area. Surveys 
outside of the Lease Areas would extend from southern Massachusetts to 
southern New Jersey, including the Massachusetts/Rhode Island WEA as 
well as the northern portion of the Mid-Atlantic planning area. Total 
survey area would be approximately 33,814 km\2\ (8,355,621.4 acres). 
Water depth across the proposed survey area ranges from approximately 
35 to 60 meters (m) (115 to 197 feet [ft]) in the Lease Areas. Average 
water depth along the proposed OECCs is approximately 38 m (123.8 ft).

[[Page 40215]]

[GRAPHIC] [TIFF OMITTED] TN21JN23.042

Detailed Description of the Action

    A detailed description of the proposed survey activities can be 
found in the previous Federal Register notices (87 FR 30872, May 20, 
2022; 87 FR 52913, August 30, 2022) and supplementary documents, 
available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llc-marine-site-characterization-surveys. The specific geographic region and nature of the activities, 
including the types of HRG equipment planned for use (side scan sonar, 
multibeam echosounder, magnetometers and gradiometers, parametric sub-
bottom profiler (SBP), compressed high intensity radar pulse (CHIRP) 
SBP, boomers, and sparkers; daily trackline distances (80 km per day); 
and the number of survey vessels (up to two in a Lease Area and up to 
two along OECC routes, including nearshore survey areas) are identical 
or nearly identical to those described in those previous notices.

Description of Marine Mammals

    A description of the marine mammals in the proposed survey area can 
be found in the previous documents and notices for the 2022 IHA (87 FR 
30872, May 20, 2022; 87 FR 52913, August 30, 2022), which remains 
applicable to this proposed IHA. NMFS reviewed the most recent draft 
Stock Assessment Reports (SARs, found on NMFS' website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments, up-to-date information on relevant Unusual Mortality 
Events (UMEs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events), and recent 
scientific literature and determined that no new information affects 
our original analysis of impacts under the 2022 IHA.
    NMFS notes that, since issuance of the 2022 IHA, a new SAR is 
available for the North Atlantic right whale. Estimated abundance for 
the species declined from 368 to 338. However, this change does not 
affect our analysis of impacts, as described under the 2022 IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat can be found in the documents 
supporting the 2022 IHA (87 FR 30872, May 20, 2022; 87 FR 52913, August 
30, 2022). At present, there is no new information on potential effects 
that would influence our analysis.

Estimated Take

    A detailed description of the methods used to estimate take 
anticipated to occur incidental to the project is found in the previous 
Federal Register notices (87 FR 30872, May 20, 2022; 87 FR 52913, 
August 30, 2022). The methods of estimating take are identical to those 
used in the 2022 IHA. Vineyard Northeast updated the marine mammal 
densities based on new information (Roberts et al., 2016; Roberts et 
al., 2023), available online at: https://seamap.env.duke.edu/models/Duke/EC/ EC/. We refer the reader to Table 8 in Vineyard Northeast's 2023 
IHA request for the specific density values used in the analysis. The 
IHA request is

[[Page 40216]]

available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The take that NMFS proposes to authorize can be found in Table 1, 
which presents the results of Vineyard Northeast's density-based 
calculations for the survey area. For comparative purposes, we have 
provided the 2022 IHA authorized Level B harassment take (87 FR 52913, 
August 30, 2022). NMFS notes that take by Level A harassment was not 
requested, nor does NMFS anticipate that it could occur. Therefore, 
NMFS has not proposed to authorize any take by Level A harassment. 
Mortality or serious injury is neither anticipated to occur nor 
proposed for authorization.

                                               Table 1--Summary of Take Numbers Proposed for Authorization
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                                                                                                                                 2023 Proposed IHA
                                                                                                                         -------------------------------
                                                                                                             2022 IHA     Take  proposed
               Species                      Scientific name               Stock              Abundance      authorized          for         Max percent
                                                                                                               take        authorization    population
                                                                                                                                \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale...........................  Balaenoptera musculus...  Western North Atlantic.             402               1               1            0.25
North Atlantic Right Whale...........  Eubalaena glacialis.....  Western North Atlantic.             338              40              12             3.6
Humpback Whale.......................  Megaptera novaeangliae..  Gulf of Maine..........           1,396              47              12            0.86
Fin Whale............................  Balaenoptera physalus...  Western North Atlantic.           6,802              77              20            0.29
Sei Whale............................  Balaenoptera borealis...  Nova Scotia............           6,292               5               5            0.08
Minke whale..........................  Balaenoptera              Canadian Eastern                 21,968              42              46            0.21
                                        acutorostrata.            Coastal.
Sperm whale..........................  Physeter macrocephalus..  North Atlantic.........           4,349              12               2            0.05
Long-finned pilot whale \1\..........  Globicephala melas......  Western North Atlantic.          39,215             405              17            0.04
Killer whale \2\.....................  Orcinus orca............  Western North Atlantic.             UNK               2           \3\ 4         \4\ 5.9
False killer whale \2\...............  Pseudorca crassidens....  Western North Atlantic.           1,791               5               5            0.28
Atlantic spotted dolphin \3\.........  Stenella frontalis......  Western North Atlantic.          39,921              29              29            0.07
Atlantic white-sided dolphin.........  Lagenorhynchus acutus...  Western North Atlantic.          93,233           1,124             129            0.14
Bottlenose dolphin...................  Tursiops truncatus......  Western North Atlantic            6,639             151              45            0.68
                                                                  Northern Migratory
                                                                  Coastal.
                                                                 Western North Atlantic           62,851             569             169            0.27
                                                                  Offshore.
Common dolphin.......................  Delphinus delphis.......  Western North Atlantic.         172,974          13,904           7,472             4.3
Risso's dolphin......................  Grampus griseus.........  Western North Atlantic.          35,215             101               9            0.03
White-beaked dolphin \2\.............  Lagenorhynchus            Western North Atlantic.         536,016              30              30           0.006
                                        albirostris.
Harbor porpoise......................  Phocoena phocoena.......  Gulf of Maine/Bay of             95,543           2,033             347            0.36
                                                                  Fundy.
Harbor seal \5\......................  Phoca vitulina..........  Western North Atlantic.          61,336             939             939             1.5
Gray seal \5\........................  Halichoerus grypus......  Western North Atlantic.      \6\ 27,300             418             418             1.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Roberts et al. (2023) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be
  of long-finned pilot whales.
\2\ Rare (or unlikely to occur) species.
\3\ Adjusted according to average group size (Kraus et al., 2016; Palka et al., 2017).
\4\ Based upon minimum population estimate of 67 individual killer whales identified in the Northwestern Atlantic Ocean (Lawson and Stevens, 2014).
\5\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. In order to determine the species-specific
  density-based exposure estimates for seals, Vineyard Northeast used the following approach. Vineyard Northeast summed the SAR Nbest abundance
  estimates (Hayes et al., 2022) for the 2 seal species and divided the total by the estimate for each species to get the proportion of the total for
  each species. Vineyard Northeast then multiplied these proportions by the total estimated exposure for the seal guild density (Roberts et al., 2023)
  to get the species-specific density-based exposure estimates. NMFS accepts this approach.
\6\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,600.

Description of Proposed Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures proposed here 
are identical to those included in the Federal Register notice 
announcing the final 2022 IHA and the discussion of the least 
practicable adverse impact included in that document remains accurate. 
These mitigation, monitoring, and reporting measures are described 
below. As described in the previous Federal Register notices (87 FR 
30872, May 20, 2022; 87 FR 52913, August 30, 2022), NMFS determined 
that issuance of the 2022 IHA to Vineyard Northeast was within the 
scope of the NOAA Fisheries Greater Atlantic Regional Office (GARFO) 
programmatic consultation regarding geophysical surveys along the U.S. 
Atlantic coast in the three Atlantic Renewable Energy Regions (NOAA 
GARFO, 2021; https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation). NMFS similarly concludes that 
the currently proposed survey activities are within scope of the 
consultation, and thus will require adherence to the relevant Project 
Design Criteria (PDC) (specifically PDCs 4, 5, and 7).
    Additionally, on August 1, 2022, NMFS announced proposed changes to 
the existing North Atlantic right whale vessel speed regulations to 
further reduce the likelihood of mortalities and serious injuries to 
endangered North Atlantic right whales from vessel collisions, which 
are a leading cause of the species' decline and a primary factor in an 
ongoing Unusual Mortality Event (87 FR 46921). Should a final vessel 
speed rule be issued and become effective during the effective period 
of this IHA (or any other MMPA incidental take authorization), the 
authorization holder would be required to comply with any and all 
applicable requirements contained within the final rule. Specifically, 
where measures in any final vessel speed rule are more protective or 
restrictive than those in this or any other MMPA authorization, 
authorization holders would be required to comply with the requirements 
of the rule. Alternatively, where measures in this or any other MMPA 
authorization are more restrictive or protective than those in any 
final vessel speed rule, the measures in the MMPA authorization must be 
followed. The responsibility to comply with the applicable requirements 
of any vessel speed rule would become effective immediately upon the 
effective date of any final vessel speed rule and, when notice is 
published of the effective date, NMFS would also notify Vineyard 
Northeast if the measures in the speed rule were to supersede any of 
the measures in the MMPA authorization.
    Establishment of Shutdown Zones (SZ)--Marine mammal SZs must be

[[Page 40217]]

established around the HRG survey equipment and monitored by NMFS-
approved protected species observers (PSO) during HRG surveys as 
follows:
     500-m SZ for North Atlantic right whales during use of 
specified acoustic sources (impulsive: sparkers and boomers; non-
impulsive: non-parametric sub-bottom profilers); and,
     100-m SZ for all other marine mammals (excluding North 
Atlantic right whales) during operation of the sparker and boomer. The 
only exception for this is for pinnipeds (seals) and small delphinids 
(i.e., those from the genera Delphinus, Lagenorhynchus, Stenella or 
Tursiops).
    If a marine mammal is detected approaching or entering the SZs 
during the HRG survey, the vessel operator would adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
During use of acoustic sources with the potential to result in marine 
mammal harassment (sparkers, boomers, and non-parametric sub-bottom 
profilers; i.e., anytime the acoustic source is active, including ramp-
up), occurrences of marine mammals within the monitoring zone (but 
outside the SZs) must be communicated to the vessel operator to prepare 
for potential shutdown of the acoustic source.
    Visual Monitoring--Monitoring must be conducted by qualified PSOs 
who are trained biologists, with minimum qualifications described in 
the Federal Register notices for the 2022 project (87 FR 30872, May 20, 
2022; 87 FR 52913, August 30, 2022). Vineyard Northeast must have one 
PSO on duty during the day and a minimum of two NMFS-approved PSOs must 
be on duty and conducting visual observations when HRG equipment is in 
use at night. Visual monitoring must begin no less than 30 minutes 
prior to ramp-up of HRG equipment and continue until 30 minutes after 
use of the acoustic source. PSOs must establish and monitor the 
applicable clearance zones, SZs, and vessel separation distances as 
described in the 2022 IHA (87 FR 52913, August 30, 2022). PSOs must 
coordinate to ensure 360-degree visual coverage around the vessel from 
the most appropriate observation posts, and must conduct observations 
while free from distractions and in a consistent, systematic, and 
diligent manner. PSOs are required to estimate distances to observed 
marine mammals. It is the responsibility of the Lead PSO on duty to 
communicate the presence of marine mammals as well as to communicate 
action(s) that are necessary to ensure mitigation and monitoring 
requirements are implemented as appropriate.
    Pre-Start Clearance--Marine mammal clearance zones (CZs) must be 
established around the HRG survey equipment and monitored by NMFS-
approved PSOs prior to use of boomers, sparkers, and non-parametric 
sub-bottom profilers as follows:
     500-m CZ for all Endangered Species Act-listed species; 
and
     100-m CZ for all other marine mammals.
    Prior to initiating HRG survey activities, Vineyard Northeast must 
implement a 30-minute pre-start clearance period. The operator must 
notify a designated PSO of the planned start of ramp-up where the 
notification time should not be less than 60 minutes prior to the 
planned ramp-up to allow the PSOs to monitor the CZs for 30 minutes 
prior to the initiation of ramp-up. Prior to ramp-up beginning, 
Vineyard Northeast must receive confirmation from the PSO that the CZs 
are clear prior to preceding. Any PSO on duty has the authority to 
delay the start of survey operations if a marine mammal is detected 
within the applicable pre-start clearance zones.
    During this 30-minute period, the entire CZ must be visible. The 
exception to this would be in situations where ramp-up must occur 
during periods of poor visibility (inclusive of nighttime) as long as 
appropriate visual monitoring has occurred with no detections of marine 
mammals in 30 minutes prior to the beginning of ramp-up.
    If a marine mammal is observed within the relevant CZs during the 
pre-start clearance period, initiation of HRG survey equipment must not 
begin until the animal(s) has been observed exiting the respective CZ, 
or, until an additional period has elapsed with no further sighting 
(i.e., minimum 15 minutes for small odontocetes and seals; 30 minutes 
for all other species). The pre-start clearance requirement includes 
small delphinids. PSOs must also continue to monitor the zone for 30 
minutes after survey equipment is shut down or survey activity has 
concluded.
    Ramp-Up of Survey Equipment--When technically feasible, a ramp-up 
procedure must be used for geophysical survey equipment capable of 
adjusting energy levels at the start or re-start of survey activities. 
The ramp-up procedure must be used at the beginning of HRG survey 
activities in order to provide additional protection to marine mammals 
near the project area by allowing them to detect the presence of the 
survey and vacate the area prior to the commencement of survey 
equipment operation at full power. Ramp-up of the survey equipment must 
not begin until the relevant SZs have been cleared by the PSOs, as 
described above. HRG equipment operators must ramp up acoustic sources 
to half power for 5 minutes and then proceed to full power. If any 
marine mammals are detected within the SZs prior to or during ramp-up, 
the HRG equipment must be shut down (as described below).
    Shutdown Procedures--If an HRG source is active and a marine mammal 
is observed within or entering a relevant SZ (as described above), an 
immediate shutdown of the HRG survey equipment is required. When 
shutdown is called for by a PSO, the acoustic source must be 
immediately deactivated and any dispute resolved only following 
deactivation. Any PSO on duty has the authority to delay the start of 
survey operations or to call for shutdown of the acoustic source if a 
marine mammal is detected within the applicable SZ. The vessel operator 
must establish and maintain clear lines of communication directly 
between PSOs on duty and crew controlling the HRG source(s) to ensure 
that shutdown commands are conveyed swiftly while allowing PSOs to 
maintain watch. Subsequent restart of the HRG equipment may only occur 
after the marine mammal has been observed exiting the relevant SZ, or, 
until an additional period has elapsed with no further sighting of the 
animal within the relevant SZ.
    Upon implementation of shutdown, the HRG source may be reactivated 
after the marine mammal that triggered the shutdown has been observed 
exiting the applicable SZ or, following a clearance period of 15 
minutes for small odontocetes (i.e., harbor porpoise) and 30 minutes 
for all other species with no further observation of the marine 
mammal(s) within the relevant SZ. If the HRG equipment is shut down for 
brief periods (i.e., less than 30 minutes) for reasons other than 
mitigation (e.g., mechanical or electronic failure) the equipment may 
be reactivated as soon as is practicable at full operational level, 
without 30 minutes of pre-clearance, only if PSOs have maintained 
constant visual observation during the shutdown and no visual 
detections of marine mammals occurred within the applicable SZs during 
that time. For a shutdown of 30 minutes or longer, or if visual 
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
    The shutdown requirement is waived for pinnipeds (seals) and 
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus, 
Stenella, or Tursiops) under certain circumstances. If a delphinid(s) 
from these genera is

[[Page 40218]]

visually detected within the SZ, shutdown would not be required. If 
there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the observed marine mammal(s) belongs to one of 
the delphinid genera for which shutdown is waived), PSOs must use best 
professional judgment in making the decision to call for a shutdown.
    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 
area encompassing the Level B harassment isopleth (178 m), shutdown 
must occur.
    Vessel Strike Avoidance--Vineyard Northeast must comply with vessel 
strike avoidance measures as described in the Federal Register notice 
for the 2022 IHA (87 FR 52913, August 30, 2022). This includes speed 
restrictions (10 knots or less) when mother/calf pairs, pods, or large 
assemblages of cetaceans are spotted near a vessel; species-specific 
vessel separation distances; appropriate vessel actions when a marine 
mammal is sighted (e.g., avoid excessive speed, remain parallel to 
animal's course, etc.); and monitoring of the NMFS North Atlantic Right 
Whale reporting system and WhaleAlert daily.
    Throughout all phases of the survey activities, Vineyard Northeast 
must monitor NOAA Fisheries North Atlantic right whale reporting 
systems for the establishment of a dynamic management area (DMA). If 
NMFS establishes a DMA in the surrounding area, including the project 
area or export cable routes being surveyed, Vineyard Northeast is 
required to abide by the 10-knot speed restriction.
    Training--Project-specific training is required for all vessel crew 
prior to the start of survey activities.
    Reporting--PSOs must record specific information as described in 
the Federal Register notice of the issuance of the 2022 IHA (87 FR 
52913, August 30, 2022). Within 90 days after completion of survey 
activities, Vineyard Northeast must provide NMFS with a monitoring 
report, which must include summaries of recorded takes and estimates of 
the number of marine mammals that may have been harassed.
    In the event of a ship strike or discovery of an injured or dead 
marine mammal, Vineyard Northeast must report the incident to the 
Office of Protected Resources (OPR), NMFS and to the New England/Mid-
Atlantic Regional Stranding Coordinator as soon as feasible. The report 
must include the information listed in the Federal Register notice of 
the issuance of the initial IHA (87 FR 52913, August 30, 2022).

Preliminary Determinations

    Vineyard Northeast's HRG survey activities are a subset but 
otherwise unchanged from those analyzed in support of the 2022 IHA. The 
effects of the activity, taking into consideration the proposed 
mitigation and related monitoring measures, remain unchanged from those 
evaluated in support of the 2022 IHA, regardless of the minor increase 
in estimated take for one species (minke whale). NMFS expects that all 
potential takes would be short-term Level B behavioral harassment in 
the form of temporary avoidance of the area or decreased foraging, 
reactions that are considered to be of low severity and with no lasting 
biological consequences (e.g., Southall et al., 2007). In addition to 
being temporary, the maximum harassment zone around a survey vessel is 
178 m from use of the Applied Acoustics AA251 Boomer. Although this 
distance is assumed for all survey activity evaluated here and in 
estimating take numbers proposed for authorization, in reality, much of 
the survey activity would involve use of acoustic sources with a 
reduced acoustic harassment zone (4 m for the Edge Tech Chirp 216 or 
141 m for the GeoMarine Geo Spark 2000), 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 the available habitat.
    The proposed survey area overlaps or is in close proximity to 
feeding biologically important areas (BIA)s for North Atlantic right 
whales (Cape Cod Bay and Massachusetts Bay BIA, February-April/Great 
South Channel and Georges Bank Shelf Break BIA, April-June), humpback 
whales (March-December), fin whales (year-round/March-October), sei 
whales (May-November), and minke whales (March-November), as well as 
overlaps the migratory BIA for North Atlantic right whales (November 1-
April 30) (LaBrecque et al., 2015). In addition, the proposed survey 
area overlaps with the area south of Martha's Vineyard and Nantucket, 
referred to as ``South of the Islands,'' which has been identified as 
relatively new year-round core North Atlantic right whale foraging 
habitat (Oleson et al., 2020; Quintana-Rizzo et al., 2021). As prey 
species are mobile and broadly distributed throughout the survey area, 
marine mammals that are 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, thus we do not 
expect biologically significant impacts to feeding behavior. In 
addition, most of these feeding BIAs are extensive and sufficiently 
large (e.g., 3,149 km\2\ and 12,247 km\2\ for North Atlantic right 
whales; 47,701 km\2\ for humpback whales; 18,015 km\2\ and 2,933 km\2\ 
for fin whales; 56,609 km\2\ for sei whales; 54,341 for minke whales), 
and the acoustic footprint of the proposed survey is sufficiently small 
that feeding opportunities for these species would not be reduced 
appreciably. Due to the temporary nature of the disturbance and the 
availability of similar habitat and resources in the surrounding area, 
the impacts to marine mammals and the food sources that they utilize 
are not expected to cause significant or long-term consequences for 
individual marine mammals or their populations. Even considering the 
increased estimated take for one species (minke whales), the impacts of 
these lower severity exposures are not expected to accrue to a degree 
that the fitness of any individuals would be impacted and, therefore, 
no impacts on the annual rates of recruitment or survival would result.
    As previously discussed in the 2022 IHA (87 FR 52913, August 30, 
2022), impacts from the survey are expected to be localized to the 
specific area of activity and only during periods when Vineyard 
Northeast's acoustic sources are active. There are no rookeries, mating 
or calving grounds known to be biologically important to marine mammals 
within the proposed survey area.
    As noted for the 2022 IHA (87 FR 52913, August 30, 2022), the 
proposed survey area overlaps a migratory corridor BIA and migratory 
route SMAs (Port of New Jersey/New York and Block Island) for North 
Atlantic right whales. As the survey activities would be temporary and 
the spatial acoustic footprint produced by the survey would be very 
small relative to the spatial extent of the available migratory habitat 
in the BIA (269,448 km\2\), NMFS does not expect North Atlantic right 
whale migration to be impacted by the survey. Required vessel strike 
avoidance measures would also decrease risk of ship strike during 
migration; no ship strike is expected to occur during Vineyard 
Northeast's proposed activities. Vineyard Northeast would be required 
to comply with seasonal speed restrictions of these SMAs, and in any 
dynamic management area (DMA), should NMFS establish one (or more) in 
the proposed survey area. Additionally,

[[Page 40219]]

Vineyard Northeast requested and NMFS proposes to authorize only 12 
takes by Level B harassment of NARWs. This amount is less than the 40 
Level B harassment takes authorized in the 2022 IHA due to the updated 
Duke University density data (Roberts et al., 2023) and reduced survey 
area.
    Although take by Level B harassment of North Atlantic right whales 
has been proposed for authorization by NMFS, we anticipate a very low 
level of harassment, should it occur, because Vineyard Northeast is 
required to maintain a shutdown zone of 500 m if a North Atlantic right 
whale is observed. The takes proposed for authorization account for any 
missed animals wherein the survey equipment is not shut down 
immediately. As shutdown would be called for immediately upon detection 
(if the whale is within 500 m), it is likely the exposure time would be 
very limited and received levels would not be much above the harassment 
threshold. Further, the 500-m shutdown zone for right whales is 
conservative, considering the distance to the Level B harassment 
isopleth for the most impactful acoustic source (i.e., Applied 
Acoustics AA251 Boomer--which may not be used on all survey days) is 
estimated to be 178 m, and thereby minimizes the potential for 
behavioral harassment of this species. As noted previously, Level A 
harassment is not expected due to the small permanent threshold shift 
(PTS) zones associated with HRG equipment types proposed for use. NMFS 
does not anticipate North Atlantic right whale takes that would result 
from Vineyard Northeast's activities would impact annual rates of 
recruitment or survival. Thus, any takes that occur would not result in 
population level impacts.
    We also note that our findings for other species with active UMEs 
that were previously described for the 2022 IHA (87 FR 52913, August 
30, 2022) remain applicable to this project. In addition, our analysis 
of survey effects on species with BIAs that overlap with the proposed 
survey area remains unchanged. Therefore, in conclusion, there is no 
new information suggesting that our analysis or findings should change.
    Based on the information contained here and in the referenced 
documents, NMFS has preliminarily determined the following: (1) the 
required mitigation measures would effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the proposed 
authorized takes would have a negligible impact on the affected marine 
mammal species or stocks; (3) the proposed authorized takes represent 
small numbers of marine mammals relative to the affected stock 
abundances; (4) Vineyard Northeast's activities would not have an 
unmitigable adverse impact on taking for subsistence purposes as no 
relevant subsistence uses of marine mammals are implicated by this 
action, and (5) appropriate monitoring and reporting requirements are 
included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (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 OPR consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS is proposing to authorize the incidental take of five species 
of marine mammals which are listed under the ESA, including the North 
Atlantic right, fin, sei, blue, and sperm whale, and has determined 
that this activity falls within the scope of activities analyzed in 
NMFS GARFO's programmatic consultation regarding geophysical surveys 
along the U.S. Atlantic coast in the three Atlantic Renewable Energy 
Regions (completed June 29, 2021; revised September 2021).

Proposed Authorization

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

Request for Public Comments

    We request comment on our analyses (included in both this document 
and the referenced documents supporting the 2022 IHA; Incidental Take 
Authorization (ITA) application; issued IHA; and Federal Register 
notices including 87 FR 30872, May 20, 2022; 87 FR 52913, August 30, 
2022), the proposed authorization, and any other aspect of this notice 
of proposed IHA for the proposed site characterization surveys. We also 
request comment on the potential for renewal of this proposed IHA as 
described in the paragraph below. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.
    On a case-by-case basis, NMFS may issue a one-time, 1-year renewal 
IHA following notice to the public providing an additional 15 days for 
public comments when (1) up to another year of identical or nearly 
identical activities as described in the Description of the Proposed 
Activity and Anticipated Impacts section of this notice is planned or 
(2) the activities as described in the Description of the Proposed 
Activity and Anticipated Impacts section of this notice would not be 
completed by the time the IHA expires and a renewal would allow for 
completion of the activities beyond that described in the Dates and 
Duration section of this notice, provided all of the following 
conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed renewal IHA effective date (recognizing that the 
renewal IHA expiration date cannot extend beyond 1 year from expiration 
of the initial IHA);
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take);
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized; and
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.


[[Page 40220]]


    Dated: June 14, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-13118 Filed 6-20-23; 8:45 am]
BILLING CODE 3510-22-P