[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Notices]
[Pages 50117-50130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16292]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD107]


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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Vineyard Northeast, LLC (Vineyard Northeast) to incidentally harass, by 
Level B harassment only, marine mammals during marine site 
characterization surveys offshore from Massachusetts to New Jersey.

DATES: This Authorization is effective for 1 year from date of 
issuance.

ADDRESSES: 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 below.

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

SUPPLEMENTARY INFORMATION:

Background

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

History of Request

    On December 17, 2021, 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 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 offshore export cable corridor (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 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 was 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.
    On April 17, 2023, NMFS received a request from Vineyard Northeast 
for an IHA to take marine mammals incidental to HRG marine site 
characterization surveys offshore from Massachusetts to New Jersey in 
the areas of Bureau of Ocean Energy Management (BOEM) Commercial Lease 
of Submerged Lands for Renewable Energy Development on the OCS-A 0522 
(Lease Area), OCS-A 0544 (Lease Area), and associated 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.
    The activities described in Vineyard Northeast's request and the 
acoustic sources authorized 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 mitigation, monitoring, and reporting requirements 
remain the same. While Vineyard Northeast's activity would have 
qualified for renewal of the 2022 IHA, due to the availability of 
updated marine mammal density data (https://seamap.env.duke.edu/models/Duke/EC/ EC/), which NMFS has determined represents the best available 
scientific data, NMFS determined to proceed with a new IHA process 
rather than a renewal, providing a 30-day period for the public to 
comment on the proposed action.
    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

[[Page 50118]]

IHA. In evaluating the 2023 request and to the extent deemed 
appropriate, NMFS also relied 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).
    No changes were made from the proposed to the final IHA.

Description of the Activity and Anticipated Impacts

Overview

    Vineyard Northeast will conduct HRG marine site characterization 
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 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 will be deployed from multiple vessels during site 
characterization activities in the project area, and up to two vessels 
will operate at a time in the lease areas and along the OECCs. During 
survey effort, the vessel will operate at a maximum speed of 4 knots 
(4.6 miles or 7.4 kilometers (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.
    The planned activity is estimated to require 467 survey days 
(37,360 km of trackline) using a maximum of four 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.
    Underwater sound resulting from Vineyard Northeast's survey 
activities during use of specific active acoustic sources has the 
potential to result in incidental take of marine mammals in the form of 
behavioral harassment (Level B harassment). Geophysical activities were 
discussed previously for the 2022 IHA NMFS issued to Vineyard Northeast 
(87 FR 52913, August 30, 2022) and, as no new information has been 
presented that changed our determinations on these activities, this 
information will not be reiterated here. The mitigation, monitoring, 
and reporting measures are described in more detail later in this 
document (please see Description of Mitigation, Monitoring, and 
Reporting).
    A detailed description of Vineyard Northeast's planned surveys is 
provided in the Federal Register notice of the proposed IHA (88 FR 
40212, June 21, 2023) and the 2022 Federal Register notice (87 FR 
30872, May 30 2022; 87 FR 52913, August 30, 2022). Since that time, no 
changes have been made to the survey activities. Therefore, a detailed 
description is not provided here. Please refer to those Federal 
Register notices for the description of the specified activities.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Vineyard Northeast 
was published in the Federal Register on June 21, 2023 (88 FR 40212). 
That notice described, in detail, Vineyard Northeast's proposed 
activities, the marine mammal species that may be affected by these 
activities, and the anticipated effects on marine mammals. We requested 
public input on the request for authorization described therein, our 
analyses, the proposed authorization, and requested that interested 
persons submit relevant information, suggestions, and comments.
    NMFS received 39 public comment letters. Three of these comment 
letters were from non-governmental organizations: Oceana, Clean Ocean 
Action (COA), and Sea Life Conservation (SLC). The remaining 36 comment 
letters were from private citizens. The majority of these expressed 
general opposition to issuance of the IHA or to the underlying 
associated activities, but without providing specific information 
relevant to NMFS' request for public comment. Three of the letters from 
private citizens provided substantive comments that are addressed 
below.
    We reiterate here that NMFS' action concerns only the authorization 
of marine mammal take incidental to the planned surveys--NMFS' 
authority under the MMPA does not extend to the surveys themselves or 
to wind energy development more generally. Many of the comments 
requested that NMFS not issue any IHAs related to wind energy 
development and/or expressed opposition for wind energy development 
generally without providing information relevant to NMFS' decision to 
authorize take incidental to Vineyard Northeast's survey activities. We 
do not specifically address comments expressing general opposition to 
activities related to wind energy development or respond to comments 
not relevant to the scope of the proposed IHA (88 FR 40212, June 21, 
2023), such as comments on other Federal agency processes and 
activities not authorized under this IHA (e.g., seismic surveys, 
offshore wind construction, installation of wind turbines, other marine 
site characterization surveys).
    All substantive comments and NMFS' responses are provided below, 
and all substantive comments are available on NMFS' website: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. Please see the comment letters for full 
details regarding the comments and associated rationale.
    Comment 1: COA states that BOEM has no legal authority for 
permitting offshore geotechnical and geophysical survey activities, 
based on text from the proposed BOEM Renewable Energy Modernization 
proposed rule (88 FR 5968, January 30, 2023; 88 FR 19578, April 3, 
2023). They further state that this has allowed for no oversight with 
regards to surveys off New Jersey and New York and that they do not 
understand how BOEM can make assertions without regulations/guidance 
for HRG survey work.
    Response: NMFS' statutory authority for this particular action is 
limited to authorizing incidental take of marine mammals. NMFS 
respectfully refers the commenter to BOEM, the agency with 
responsibility for managing development of U.S. Outer Continental Shelf 
energy and mineral resources in an environmentally and economically 
responsible way.
    Comment 2: COA expressed concerns with the high amount of increased 
vessel traffic associated with the offshore wind projects in the two 
lease areas transited or utilized by certain protected resources, as 
well as concern for vessel noise.
    Response: Vineyard Northeast did not request authorization for take 
incidental to vessel traffic during their marine site characterization 
survey. Nevertheless, NMFS analyzed the potential for vessel strikes to 
occur during the survey, and determined that the potential for vessel 
strike is so low as to be discountable. NMFS does not authorize any 
take of marine mammals incidental to vessel strike resulting from the 
survey. If Vineyard Northeast were to strike a marine mammal with a 
vessel, this would be an unauthorized take in violation of the MMPA. 
This gives Vineyard Northeast a strong incentive to operate its vessels 
with all due caution and to effectively implement the suite of vessel 
strike avoidance measures required by the IHA. Vineyard Northeast 
proposed a very conservative suite of mitigation measures related to 
vessel

[[Page 50119]]

strike avoidance, including measures specifically designed to avoid 
impacts to North Atlantic right whale (NARWs). Section 4(f) in the IHA 
contains a suite of non-discretionary requirements pertaining to vessel 
strike avoidance, including vessel operation protocols and monitoring. 
To date, NMFS is not aware of any site characterization vessel from 
surveys reporting a vessel strike within the United States. When 
considered in the context of low overall probability of any vessel 
strike by Vineyard Northeast vessels, given the limited additional 
survey-related vessel traffic relative to existing traffic in the 
survey area, the comprehensive visual monitoring, and other additional 
mitigation measures described herein, NMFS believes these measures are 
sufficiently protective to avoid vessel strike. These measures are 
described fully in the Description of Mitigation, Monitoring, and 
Reporting section below, and include, but are not limited to: training 
for all vessel observers and captains, daily monitoring of NARW 
Sighting Advisory System, WhaleAlert app, and USCG Channel 16 for 
situational awareness regarding NARW presence in the survey area, 
communication protocols if whales are observed by any Vineyard 
Northeast personnel, vessel operational protocol should any marine 
mammal be observed, and visual monitoring.
    The potential for impacts related to an overall increase in the 
amount of vessel traffic due to offshore wind development is separate 
from the aforementioned analysis of potential for vessel strike during 
Vineyard Northeast's specified survey activities. For more information, 
please see the response to comment 5 discussing cumulative impacts.
    Comment 3: Oceana and COA stated that NMFS must utilize the best 
available science and suggested that NMFS has not done so, specifically 
referencing information regarding the NARW such as updated population 
estimates, habitat usage in the survey area, and seasonality 
information. Oceana and COA specifically assert that NMFS is not using 
the best available science with regards to the NARW population 
estimate.
    Response: NMFS agrees that the best available science must be used 
in determining whether a request for incidental take of marine mammals 
will have a negligible impact on species or stocks of marine mammals 
and, where appropriate, will not have an unmitigable adverse impact on 
the availability of such species or stock for subsistence uses. NMFS 
considered all relevant information regarding NARW abundance estimates, 
including the commenter's cited information, and determined that the 
abundance estimate (338; 95 percent with a confidence interval of 325-
350) included in the 2022 draft Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports)), is the best available NARW abundance 
estimate (88 FR 32735, May 22, 2023).
    NMFS also considered the best available science regarding both 
recent habitat usage patterns for the study area and up-to-date 
seasonality information in the notice of the proposed IHA, including 
consideration of existing Biologically Important Areas (BIAs) and 
densities provided by Roberts et al. (2023). While the commenter 
suggested that NMFS consider best available information for recent 
habitat usage patterns and seasonality, they did not offer any 
additional information for NMFS to consider in place of what NMFS 
considered the best available science in its notice of proposed IHA (88 
FR 40212, June 21, 2023).
    Comment 4: Oceana noted that chronic stressors are an emerging 
concern for NARW conservation and recovery and stated that chronic 
stress may result in energetic effects for NARW. Oceana suggested that 
NMFS has not fully considered both the use of the area and the effects 
of both acute and chronic stressors on the health and fitness of NARW, 
as disturbance responses in NARW could lead to chronic stress or 
habitat displacement, leading to an overall decline in their health and 
fitness.
    Response: NMFS agrees with Oceana that both acute and chronic 
stressors are of concern for NARW conservation and recovery. We 
recognize that acute stress from acoustic exposure is one potential 
impact of these surveys, and that chronic stress can have fitness and 
reproductive impacts at the population-level scale. NMFS has carefully 
reviewed the best available scientific information in assessing impacts 
to marine mammals and recognizes that the surveys have the potential to 
impact marine mammals through behavioral effects, stress responses, and 
auditory masking. However, NMFS does not expect that the generally 
short-term, intermittent, and transitory marine site characterization 
survey activities planned by Vineyard Northeast will create conditions 
of acute or chronic acoustic exposure leading to long-term 
physiological stress responses in marine mammals. NMFS has also 
prescribed a robust suite of mitigation measures, including extended 
distance shutdowns for NARW, that are expected to further reduce the 
duration and intensity of acoustic exposure while limiting the 
potential severity of any possible behavioral disruption. The potential 
for chronic stress was evaluated in making the determinations presented 
in NMFS' negligible impact analyses. NARW generally use this location 
in a transitory manner, specifically for migration, and any potential 
impacts from these surveys are lessened for other behaviors due to the 
brief periods where exposure is possible. In context of these expected 
low-level impacts, which are not expected to meaningfully affect 
important behavior, we refer to the large size of the migratory 
corridor (269,488 km\2\) compared with the approximately 33,814 km\2\ 
survey area. Thus, the transitory nature of NARW at this location means 
it is unlikely for any exposure to cause chronic effects, as Vineyard 
Northeast's planned survey area and ensonified zones are much smaller 
than the overall migratory corridor. As such, NMFS does not expect 
acute or cumulative stress to be a detrimental factor to NARW from 
Vineyard Northeast's described survey activities.
    Comment 5: Several commenters asserted that NMFS must deny all 
actions until the cumulative impacts of every incidental take 
authorization on marine mammals are considered. Oceana and COA asserted 
that NMFS must fully consider the discrete effects of each activity and 
the cumulative effects of the suite of approved, proposed, and 
potential offshore wind activities on marine mammals and NARW, in 
particular, and ensure that the cumulative effects are not excessive 
before issuing or renewing an IHA.
    Response: NMFS is required to authorize the requested incidental 
take if it finds the incidental take by harassment of small numbers of 
marine mammals by U.S. citizens ``while engaging in that [specified] 
activity'' within a specified geographic region will have a negligible 
impact on such species or stock and where appropriate, will not have an 
unmitigable adverse impact on the availability of such species or stock 
for subsistence uses. 16 U.S.C. 1371(a)(5)(D). Negligible impact is 
defined 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). Neither the MMPA nor 
NMFS' implementing regulations require consideration of other unrelated 
activities and their impacts on marine mammal populations in the 
negligible

[[Page 50120]]

impact determination. Additionally, NMFS' implementing regulations 
require applicants to include in their request a detailed description 
of the specified activity or class of activities that can be expected 
to result in incidental taking of marine mammals (50 CFR 
216.104(a)(1)). Thus, the ``specified activity'' for which incidental 
take coverage is being sought under Section 101(a)(5)(D) is generally 
defined and described by the applicant. Consistent with the preamble of 
NMFS' implementing regulations (54 FR 40338, September 29, 1989), the 
impacts from other past and ongoing anthropogenic activities are 
factored into the baseline, which is used in the negligible impact 
analysis. Here, NMFS has factored into its negligible impact analysis 
the impacts of other past and ongoing anthropogenic activities via 
their impacts on the baseline (e.g., as reflected in the density, 
distribution and status of the species, population size and growth 
rate, and other relevant stressors).
    The preamble of NMFS' implementing regulations (54 FR 40338, 
September 29, 1989) also addresses cumulative effects from future, 
unrelated activities. Such effects are not considered in making the 
negligible impact determination under MMPA Section 101(a)(5). NMFS 
considers (1) cumulative effects that are reasonably foreseeable when 
preparing a National Environmental Policy Act (NEPA) analysis, and (2) 
reasonably foreseeable cumulative effects under section 7 of the 
Endangered Species Act (ESA) for ESA-listed species, as appropriate. 
Accordingly, NMFS has written Environmental Assessments (EA) that 
addressed cumulative impacts related to substantially similar 
activities in similar locations (e.g., the 2019 Avangrid EA for survey 
activities offshore North Carolina and Virginia; the 2017 Ocean Wind, 
LLC EA for site characterization surveys off New Jersey; and the 2018 
Deepwater Wind EA for survey activities offshore Delaware, 
Massachusetts, and Rhode Island). Cumulative impacts regarding issuance 
of IHAs for site characterization survey activities such as those 
planned by Vineyard Northeast have been adequately addressed under NEPA 
in prior environmental analyses that support NMFS' determination that 
this action is appropriately categorically excluded from further NEPA 
analysis. NMFS independently evaluated the use of a categorical 
exclusion (CE) for issuance of Vineyard Northeast's IHA, which included 
consideration of extraordinary circumstances.
    Separately, the cumulative effects of substantially similar 
activities in the northwest Atlantic Ocean have been analyzed in the 
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion 
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New 
York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities 
include those for which NMFS issued previous IHAs (82 FR 31562, July 7, 
2017; 83 FR 28808, June 21, 2018; 83 FR 36539, July 30, 2018; and 86 FR 
26465, May 10, 2021), which are similar to those planned by Vineyard 
Northeast under this current IHA request. This Biological Opinion 
(BiOp) determined that NMFS' issuance of IHAs for site characterization 
survey activities associated with leasing, individually and 
cumulatively, are not likely to adversely affect listed marine mammals. 
NMFS notes that, while issuance of this IHA is covered under a 
different consultation, this BiOp remains valid.
    Comment 6: COA is concerned regarding the number of species that 
could be impacted by the activities, as well as a lack of baseline data 
available for species in the area, specifically for harbor seals.
    Response: We appreciate the concern expressed by COA. NMFS utilizes 
the best available science when analyzing which species may be impacted 
by an applicant's proposed activities. Based on information found in 
the scientific literature, as well as based on density models developed 
by Duke University, all marine mammal species included in the proposed 
Federal Register Notice have some likelihood of occurring in Vineyard 
Northeast's survey areas. Furthermore, the MMPA requires us to evaluate 
the effects of the specified activities in consideration of the best 
scientific evidence available and, if the necessary findings are made, 
to issue the requested take authorization. The MMPA does not allow us 
to delay decision making in hopes that additional information may 
become available in the future.
    Regarding the lack of baseline information cited by COA, with 
specific concern pointed out for harbor seals, NMFS points to two 
sources of information for marine mammal baseline information: the 
Ocean/Wind Power Ecological Baseline Studies, January 2008--December 
2009 completed by the New Jersey Department of Environmental Protection 
in July 2010 (https://dspace.njstatelib.org/xmlui/handle/10929/68435) 
and the Atlantic Marine Assessment Program for Protected Species 
(AMAPPS; https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected) 
with annual reports available from 2010 to 2020 (https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species) that cover the areas across the 
Atlantic Ocean. NMFS has duly considered this and all available 
information.
    Based on the information presented, NMFS has determined that no new 
information has become available, nor do the commenters present 
additional information, that would change our determinations since the 
publication of the proposed notice.
    Comment 7: Several commenters expressed concern that the proposed 
IHA and its associated specified activities would lead to mortality 
(death) of marine mammals.
    Response: NMFS emphasizes that there is no credible scientific 
evidence available suggesting that mortality and/or serious injury is a 
potential outcome of the planned survey activity. Additionally, NMFS 
cannot authorize mortality or serious injury via an IHA, and such 
taking is prohibited under Condition 3(c) of the IHA and may result in 
modification, suspension, or revocation of the IHA. NMFS notes there 
has never been a report of any serious injuries or mortalities of a 
marine mammal associated with site characterization surveys. The best 
available science indicates that Level B harassment, or disruption of 
behavioral patterns, may occur as a result of Vineyard Northeast's 
specified activities. We also refer to the Greater Atlantic Regional 
Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds 
that these survey activities are in general not likely to adversely 
affect marine mammal species listed under the ESA (i.e., GARFO's 
analysis conducted pursuant to the ESA finds that marine mammals are 
not likely to be taken at all (as that term is defined under the ESA), 
much less be taken by serious injury or mortality). That document is 
found at 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.
    Comment 8: Oceana states that NMFS must make an assessment of which 
activities, technologies and strategies are truly necessary to achieve 
site characterization to inform development of the offshore wind 
projects and which are not critical, asserting that NMFS

[[Page 50121]]

should prescribe the appropriate survey techniques. In general, Oceana 
stated that NMFS must require the IHA applicant to avoid adverse 
effects on NARWs in and around the survey site, and then minimize and 
mitigate the impacts of underwater noise to the fullest extent 
feasible, including through the use of best available technology and 
methods to minimize sound levels from geophysical surveys such as 
through the use of technically and commercially feasible and effective 
noise reduction and attenuation measures.
    Response: The MMPA requires that an IHA include measures that will 
effect the least practicable adverse impact on the affected species and 
stocks and, in practice, NMFS agrees that the IHA should include 
conditions for the survey activities that will first avoid adverse 
effects on NARWs in and around the survey site, where practicable, and 
then minimize the effects that cannot be avoided. NMFS has determined 
that the IHA meets this requirement to effect the least practicable 
adverse impact. As part of the analysis for all marine site 
characterization survey IHAs, NMFS evaluated the effects expected as a 
result of the specified activity, made the necessary findings, and 
prescribed mitigation requirements sufficient to achieve the least 
practicable adverse impact on the affected species and stocks of marine 
mammals. It is not within NMFS' purview to set the activities, 
technologies, and strategies that applicants may employ to meet their 
objectives. As explained above, the ``specified activity'' for which 
incidental take coverage is being south under section 101(a)(5)(D) is 
generally defined and described by the applicant, not by NMFS.
    Comment 9: Oceana suggests that NMFS require the use of Protected 
Species Observers (PSOs) and that PSOs complement their survey efforts 
using additional technologies, such as infrared detection devices when 
in low-light conditions.
    Response: NMFS agrees with Oceana regarding these suggestions and 
requirements to utilize PSOs for monitoring and for PSOs to use a 
thermal (infrared) device during low-light conditions were included in 
the proposed Federal Register Notice. That requirement is included in 
the issued IHA.
    Comment 10: Oceana recommended that NMFS restrict all vessels of 
all sizes associated with the proposed survey activities to speeds less 
than 10 knots (kn) (18.5 kilometers (km)/hour) at all times due to the 
risk of vessel strikes to NARWs and other large whales.
    Response: While NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for vessel strike 
resulting from Vineyard Northeast's activity and have determined that 
based on the nature of the activity and the required mitigation 
measures specific to vessel strike avoidance included in the IHA, 
potential for vessel strike is so low as to be discountable. The 
required mitigation measures, all of which were included in the 
proposed IHA and are now required in the final IHA, include: A 
requirement that all vessel operators comply with 10 kn (18.5 km/hour) 
or less speed restrictions in any Seasonal Management Area (SMA), 
Dynamic Management Area (DMA), or Slow Zone while underway, and check 
daily for information regarding the establishment of mandatory or 
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and 
information regarding NARW sighting locations; a requirement that all 
vessels greater than or equal to 19.8 meters (m) in overall length 
operating from November 1 through April 30 operate at speeds of 10 kn 
(18.5 km/hour) or less; a requirement that all vessel operators reduce 
vessel speed to 10 kn (18.5 km/hour) or less when any large whale, any 
mother/calf pairs, pods, or large assemblages of non-delphinid 
cetaceans are observed near the vessel; a requirement that all survey 
vessels maintain a separation distance of 500 m or greater from any 
ESA-listed whales or other unidentified large marine mammals visible at 
the surface while underway; a requirement that, if underway, vessels 
must steer a course away from any sighted ESA-listed whale at 10 kn 
(18.5 km/hour) or less until the 500 m minimum separation distance has 
been established; a requirement that, if an ESA-listed whale is sighted 
in a vessel's path, or within 500 m of an underway vessel, the underway 
vessel must reduce speed and shift the engine to neutral; a requirement 
that all vessels underway must maintain a minimum separation distance 
of 100 m from all non-ESA-listed baleen whales; and a requirement that 
all vessels underway must, to the maximum extent practicable, attempt 
to maintain a minimum separation distance of 50 m from all other marine 
mammals, with an understanding that at times this may not be possible 
(e.g., for animals that approach the vessel). We have determined that 
the vessel strike avoidance measures in the IHA are sufficient to 
ensure the least practicable adverse impact on species or stocks and 
their habitat. Furthermore, no documented vessel strikes have occurred 
for any marine site characterization surveys which were issued IHAs 
from NMFS during the survey activities themselves or while transiting 
to and from survey sites.
    Comment 11: Oceana suggests that NMFS require vessels maintain a 
separation distance of at least 500 m from NARWs at all times.
    Response: NMFS agrees with Oceana regarding this suggestion and a 
requirement to maintain a separation distance of at least 500 m from 
NARWs at all times was included in the proposed Federal Register Notice 
and was included as a requirement in the issued IHA.
    Comment 12: Oceana recommended that the IHA should require all 
vessels supporting site characterization to be equipped with and using 
Class A Automatic Identification System (AIS) devices at all times 
while on the water. Oceana suggested this requirement should apply to 
all vessels, regardless of size, associated with the survey.
    Response: NMFS is generally supportive of the idea that vessels 
involved with survey activities be equipped with and using Class A 
Automatic Identification System (devices) at all times while on the 
water. Indeed, there is a precedent for NMFS requiring such a 
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268, 
December 7, 2018); however, these activities carried the potential for 
much more significant impacts than the marine site characterization 
surveys to be carried out by Vineyard Northeast, with the potential for 
both Level A and Level B harassment take. Given the small isopleths and 
small numbers of take authorized by this IHA, NMFS does not agree that 
the benefits of requiring AIS on all vessels associated with the survey 
activities outweighs and warrants the cost and practicability issues 
associated with this requirement and therefore the agency has not 
included this within the issued IHA.
    Comment 13: Oceana asserts that the IHA must include requirements 
to hold all vessels associated with site characterization surveys 
accountable to the IHA requirements, including vessels owned by the 
developer, contractors, employees, and others regardless of ownership, 
operator, and contract. They state that exceptions and exemptions will 
create enforcement uncertainty and incentives to evade regulations 
through reclassification and redesignation. They recommend that NMFS 
simplify this by requiring all vessels to abide by the same 
requirements, regardless of size, ownership, function, contract or 
other specifics.

[[Page 50122]]

    Response: NMFS agrees with Oceana and required these measures in 
the proposed IHA and final IHA. The IHA requires that a copy of the IHA 
must be in the possession of Vineyard Northeast, the vessel operators, 
the lead PSO, and any other relevant designees of Vineyard Northeast 
operating under the authority of this IHA. The IHA also states that 
Vineyard Northeast must ensure that the vessel operator and other 
relevant vessel personnel, including the PSO team, are briefed on all 
responsibilities, communication procedures, marine mammal monitoring 
protocols, operational procedures, and IHA requirements prior to the 
start of survey activity, and when relevant new personnel join the 
survey operations.
    Comment 14: Oceana stated that the IHA must include a requirement 
for all phases of the site characterization to subscribe to the highest 
level of transparency, including frequent reporting to Federal 
agencies. Oceana recommended requirements to report all visual and 
acoustic detections of NARWs and any dead, injured, or entangled marine 
mammals to NMFS or the Coast Guard as soon as possible and no later 
than the end of the PSO shift. Oceana states that to foster stakeholder 
relationships and allow public engagement and oversight of the 
permitting, the IHA should require all reports and data to be 
accessible on a publicly available website.
    Response: NMFS agrees with the need for reporting and indeed, the 
MMPA calls for IHAs to incorporate reporting requirements. As included 
in the proposed IHA, the final IHA includes requirements for reporting 
that supports Oceana's recommendations. Vineyard Northeast is required 
to submit a monitoring report to NMFS within 90 days after completion 
of survey activities that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring. PSO 
datasheets or raw sightings data must also be provided with the draft 
and final monitoring report.
    Further, the draft IHA and final IHA stipulate that if a NARW is 
observed at any time by any survey vessels, during surveys or during 
vessel transit, Vineyard Northeast must immediately report sighting 
information to the NMFS NARW Sighting Advisory System within 2 hours of 
occurrence, when practicable, or no later than 24 hours after 
occurrence. Vineyard Northeast may also report the sighting to the U.S. 
Coast Guard. Additionally, Vineyard Northeast must report any 
discoveries of injured or dead marine mammals to the Office of 
Protected Resources, NMFS, and to the New England/Mid-Atlantic Regional 
Stranding Coordinator as soon as feasible. This includes entangled 
animals. All reports and associated data submitted to NMFS are included 
on the website for public inspection.
    Daily visual and acoustic detections of NARWs and other large whale 
species along the Eastern Seaboard, as well as Slow Zone locations, are 
publicly available on WhaleMap (https://whalemap.org/WhaleMap/). 
Further, recent acoustic detections of NARWs and other large whale 
species are available to the public on NOAA's Passive Acoustic Cetacean 
Map website https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw.
    Comment 15: Oceana recommends a shutdown requirement if a NARW or 
other ESA-listed species is detected in the clearance zone as well as a 
publicly available explanation of any exemptions allowing the applicant 
not to shut down in these situations.
    Response: NMFS reiterates that use of the planned sources is not 
expected to have any potential to cause injury of any species, 
including NARW, even in the absence of mitigation. Consideration of the 
anticipated effectiveness of the mitigation measures (i.e., clearance 
zones and shutdown measures) discussed below and in the Mitigation 
section of this notice further strengthens the conclusion that injury 
is not a reasonably anticipated outcome of the survey activity. 
Nevertheless, there are several shutdown requirements described in the 
Federal Register notice of the proposed IHA (88 FR 40212, June 21, 
2023), and which are included in the final IHA, including the 
stipulation that geophysical survey equipment must be immediately shut 
down if any marine mammal is observed within or entering the relevant 
Clearance Zone while geophysical survey equipment is operational. There 
is no exemption for the shutdown requirement for NARW and ESA-listed 
species.
    Vineyard Northeast is required to implement a 30-minute pre-start 
clearance period prior to the initiation of ramp-up of specified HRG 
equipment. During this period, clearance zones will be monitored by the 
PSOs using the appropriate visual technology. Ramp-up may not be 
initiated if any marine mammal(s) is within its respective clearance 
zone. If a marine mammal is observed within a clearance zone during the 
pre-start clearance period, ramp-up may not begin until the animal(s) 
has been observed exiting its respective exclusion zone or until an 
additional time period has elapsed with no further sighting (i.e., 15 
minutes for small odontocetes and seals, and 30 minutes for all other 
species). If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective clearance zones.
    In regards to reporting, Vineyard Northeast must notify NMFS if a 
NARW is observed at any time by any survey vessels during surveys or 
during vessel transit. Additionally, Vineyard Northeast is required to 
report the relevant survey activity information, such as the 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.) as well as the 
estimated distance to an animal and its heading relative to the survey 
vessel at the initial sighting and survey activity information. We note 
that if a NARW is detected within the Clearance Zone before a shutdown 
is implemented, the NARW and its distance from the sound source, 
including if it is within the Level B harassment zone, would be 
reported in Vineyard Northeast's final monitoring report and made 
publicly available on NMFS' website. Vineyard Northeast is required to 
immediately notify NMFS of any sightings of NARWs and report upon 
survey activity information. NMFS believes that these requirements 
address the commenter's concerns.
    NMFS does not require acoustic monitoring for the reasons stated in 
our response to Comment 23.
    Comment 16: COA asserts that Level A harassment may occur, and that 
this was not accounted for in the proposed Notice.
    Response: NMFS acknowledges the concerns brought up regarding the 
potential for Level A harassment of marine mammals. However, no Level A 
harassment is expected to result, even in the absence of mitigation, 
given the characteristics of the sources planned for use. This is 
additionally supported by the required mitigation, which further 
reduces the unlikely potential for any Level A harassment to occur, and 
very small estimated Level A harassment zones described in Vineyard 
Northeast's 2022 Federal Register notice (87 FR 52913, August 30, 2022) 
and carried through to the 2023 IHA (88 FR 40212, June 21, 2023). 
Furthermore, the commenter does not provide any support for the 
apparent contention that Level A harassment is a potential outcome of 
these activities.

[[Page 50123]]

    As discussed in the notice of proposed IHA, NMFS considers this 
category of survey operations to be near de minimis, with the potential 
for Level A harassment for any species to be discountable.
    Comment 17: COA expressed concern regarding ocean noise and the 
interference it has on communication between whales.
    Response: NMFS has carefully reviewed the best available scientific 
information in assessing impacts to marine mammals and determined that 
the surveys have the potential to impact marine mammals through 
behavioral effects and auditory masking. NMFS agrees that noise 
pollution in marine waters is an issue and is affecting marine mammals, 
including their ability to communicate when noise reaches certain 
thresholds. However, NMFS does not expect that the generally short-
term, intermittent, and transitory marine site characterization survey 
activities planned by Vineyard Northeast will create conditions of 
acute or chronic acoustic exposure leading to long-term physiological 
impacts in marine mammals. NMFS' prescribed mitigation measures are 
expected to further reduce the duration and intensity of acoustic 
exposure while limiting the potential severity of any possible 
behavioral disruption.
    Comment 18: COA and SLC do not agree with NMFS' small numbers and 
negligible impact determination for the numbers of marine mammals taken 
by Level B harassment under Vineyard Northeast's planned activities.
    Response: NMFS disagrees with the commenters' arguments on the 
topic of small numbers and negligible impact findings, and the 
commenters do not provide a reasoned basis for finding that the effects 
of the specified activity would be greater than negligible on any 
species or stock. The Negligible Impact Analysis and Determination 
section of the proposed and final 2022 IHA (87 FR 30872, 87 FR 52913) 
provides a detailed qualitative discussion supporting NMFS' 
determination that any anticipated impacts from this action would be 
negligible. The section contains a number of factors that were 
considered by NMFS based on the best available scientific data and why 
we concluded that impacts resulting from the specified activity are not 
reasonably expected to, or reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.
    Although there is limited legislative history available to guide 
NMFS and an apparent lack of biological underpinning to the concept, we 
have worked to develop a reasoned approach to small numbers. NMFS 
explains the concept of ``small numbers'' in recognition that there 
could also be quantities of individuals taken that would correspond 
with ``medium'' and ``large'' numbers. As such, NMFS considers that 
one-third of the most appropriate population abundance number--as 
compared with the assumed number of individuals taken--is an 
appropriate limit with regard to ``small numbers.'' This relative 
approach is consistent with the statement from the legislative history 
that ``[small numbers] is not capable of being expressed in absolute 
numerical limits'' (H.R. Rep. No. 97-228, at 19 (September 16, 1981)), 
and relevant case law (Center for Biological Diversity v. Salazar, 695 
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife 
Service reasonably interpreted ``small numbers'' by analyzing take in 
relative or proportional terms)). NMFS has made the necessary small 
numbers finding for all affected species and stocks in this case.
    Comment 19: SLC states its opposition to the use of a categorical 
exclusion under NEPA.
    Response: NMFS does not agree with SLC's comment. A CE is a 
category of actions that an agency has determined does not individually 
or cumulatively have a significant effect on the quality of the human 
environment, and is appropriately applied for such categories of 
actions so long as there are no extraordinary circumstances present 
that would indicate that the effects of the action may be significant. 
Extraordinary circumstances are situations for which NOAA has 
determined further NEPA analysis is required because they are 
circumstances in which a normally excluded action may have significant 
effects. A determination of whether an action that is normally excluded 
requires additional evaluation because of extraordinary circumstances 
focuses on the action's potential effects and considers the 
significance of those effects in terms of both context (consideration 
of the affected region, interests, and resources) and intensity 
(severity of impacts). Potential extraordinary circumstances relevant 
to this action include (1) adverse effects on species or habitats 
protected by the MMPA that are not negligible; (2) highly controversial 
environmental effects; (3) environmental effects that are uncertain, 
unique, or unknown; and (4) the potential for significant cumulative 
impacts when the proposed action is combined with other past, present, 
and reasonably foreseeable future actions.
    The relevant NOAA CE associated with issuance of incidental take 
authorizations is CE B4, ``Issuance of incidental harassment 
authorizations under Section 101(a)(5)(A) and (D) of the MMPA for the 
incidental, but not intentional, take by harassment of marine mammals 
during specified activities and for which no serious injury or 
mortality is anticipated.'' This action falls within CE B4. In 
determining whether a CE is appropriate for a given incidental take 
authorization, NMFS considers the applicant's specified activity and 
the potential extent and magnitude of takes of marine mammals 
associated with that activity along with the extraordinary 
circumstances listed in the Companion Manual for NOAA Administrative 
Order (NAO) 216-6A and summarized above. The evaluation of whether 
extraordinary circumstances (if present) have the potential for 
significant environmental effects is limited to the decision NMFS is 
responsible for, which is issuance of the incidental take 
authorization. While there may be environmental effects associated with 
the underlying action, potential effects of NMFS' action are limited to 
those that would occur due to the authorization of incidental take of 
marine mammals. NMFS prepared numerous EAs analyzing the environmental 
impacts of the categories of activities encompassed by CE B4 which 
resulted in Findings of No Significant Impacts (FONSIs) and, in 
particular, numerous EAs prepared in support of issuance of IHAs 
related to similar survey actions are part of NMFS' administrative 
record supporting CE B4. These EAs demonstrate the issuance of a given 
incidental harassment authorization does not affect other aspects of 
the human environment because the action only affects the marine 
mammals that are the subject of the incidental harassment 
authorization. These EAs also addressed factors in 40 CFR 1508.27 
regarding the potential for significant impacts and demonstrate the 
issuance of incidental harassment authorization for the categories of 
activities encompassed by CE B4 do not individually or cumulatively 
have a significant effect on the human environment.
    Specifically for this action, NMFS independently evaluated the use 
of the CE for issuance of Vineyard Northeast's IHA, which included 
consideration of extraordinary circumstances. As part of that analysis, 
NMFS considered whether this IHA issuance would result in cumulative 
impacts that could be significant. In particular, the issuance of an 
IHA to Vineyard Northeast is

[[Page 50124]]

expected to result in minor, short-term behavioral effects on marine 
mammal species due to exposure to underwater sound from site 
characterization survey activities. Behavioral disturbance is possible 
to occur intermittently in the vicinity of Vineyard Northeast's survey 
area during the 1-year timeframe. Level B harassment will be reduced 
through use of mitigation measures described herein. Additionally, as 
discussed elsewhere, NMFS has determined that Vineyard Northeast's 
activities fall within the scope of activities analyzed in 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), which concluded 
surveys such as those planned by Vineyard Northeast are not likely to 
adversely affect endangered listed species or adversely modify or 
destroy critical habitat. Accordingly, NMFS has determined that the 
issuance of this IHA will result in no more than negligible (as that 
term is defined by the Companion Manual for NAO 216-6A) adverse effects 
on species protected by the ESA and the MMPA.
    Further, the issuance of this IHA will not result in highly 
controversial environmental effects or result in environmental effects 
that are uncertain, unique, or unknown because numerous entities have 
been engaged in site characterization surveys that result in Level B 
harassment of marine mammals in the United States. This type of 
activity is well documented; prior authorizations and analysis 
demonstrates issuance of an IHA for this type of action only affects 
the marine mammals that are the subject of the specific authorization 
and, thus, no potential for significant cumulative impacts are 
expected, regardless of past, present, or reasonably foreseeable 
actions, even though the impacts of the action may not be significant 
by itself. Based on this evaluation, we concluded that the issuance of 
the IHA qualifies to be categorically excluded from further NEPA 
review.
    Comment 20: SLC asserts that NMFS is permitting the proposed 
activities without any empirically-determined benchmark for what is the 
injury-causing sound pressure level (``SPL'') against which to measure 
the proposed activities. In addition, SLC indicates that basing the 
shutdown and clearance distances on permanent threshold shift (PTS) 
thresholds is insufficient as PTS thresholds are modeled from temporary 
threshold shift (TTS) data and threshold for tissue injury may occur at 
a lower level than TTS.
    Response: NMFS does not agree with the commenter that shutdown and 
clearance distances based upon PTS thresholds are insufficient due to 
thresholds being modeled from TTS data. Marine mammal PTS thresholds 
are appropriately extrapolated from marine mammal TTS data and data 
from terrestrial mammals, as described in NMFS' 2018 Technical 
Guidance. We refer the commenter to that guidance. Further, TTS is not 
considered injury, as defined for Level A harassment under the MMPA, 
because it is fully recoverable.
    Comment 21: SLC asserts that the spreading models used for 
assessing noise levels from the proposed activities do not adequately 
account for sound bouncing off the underside of the water's surface and 
other surface reflection.
    Response: NMFS does not agree with the commenter regarding the use 
of spreading models for assessing noise levels. While the transmission 
loss models used for HRG sources are fairly simplistic and do not 
directly account for reflections at the surface, the models are 
designed to account for how sound would propagate through the 
environment, including accounting for beamwidth and frequency 
absorption, and thus provide realistic approximations of how sounds 
from these sources are believed to travel through the environment. 
Accounting for scattering at the surface is heavily dependent on the 
roughness of the sea surface, with rougher surfaces resulting in more 
propagation loss (dB) per bounce as the sound hits the water surface 
(i.e., this additional dB loss is not accounted for in more simple 
models). Only flat surfaces would allow for complete reflection of 
sound. In addition, most HRG sources are designed to focus sound 
downwards towards the bottom, thus, accounting for surface reflections 
associated with these sources is unnecessary.
    Comment 22: SLC asserted that the ability for a developer to detect 
and report whether it has exceeded the levels of take authorized by 
NMFS is limited as not all marine mammals may be detected and 
recommended additional reporting requirements.
    Response: NMFS reviews required reporting (see Description of 
Mitigation, Monitoring, and Reporting) and uses the information to 
evaluate the mitigation measure effectiveness. Additionally, the 
mitigation measures included in Vineyard Northeast's IHA are not 
unique, and data from prior IHAs support the effectiveness of these 
mitigation measures. NMFS finds the level of reporting currently 
required is sufficient for managing the issued IHA and monitoring the 
affected stocks of marine mammals.
    Comment 23: SLC recommended that NMFS should require Passive 
Acoustic Monitoring (PAM) at all times, both day and night, to maximize 
the probability of detection for North Atlantic right whales.
    Response: NMFS does not agree that a measure to require PAM at all 
times is warranted, as it is not expected to be effective for use in 
detecting the species of concern. It is generally accepted that, even 
in the absence of additional acoustic sources, using a towed passive 
acoustic sensor to detect baleen whales (including NARWs) 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).
    Comment 24: SLC asserts that NMFS' assessment of the potential for, 
and the impacts of, masking is insufficient.
    Response: NMFS disagrees that the potential impacts of masking were 
not properly considered. NMFS acknowledges our understanding of the 
scientific literature that SLC cited but, fundamentally, the masking 
effects to

[[Page 50125]]

any one individual whale from one survey are expected to be minimal. 
Masking is referred to as a chronic effect because one of the key 
harmful components of masking is its duration--the fact that an animal 
would have reduced ability to hear or interpret critical cues becomes 
much more likely to cause a problem the longer it is occurring. Also, 
inherent in the concept of masking is the fact that the potential for 
the effect is only present during the times that the animal and the 
source are in close enough proximity for the effect to occur (and 
further this time period would need to coincide with a time that the 
animal was utilizing sounds at the masked frequency) and, as our 
analysis (both quantitative and qualitative components) indicates, 
because of the relative movement of whales and vessels, we do not 
expect these exposures with the potential for masking to be of a long 
duration within a given day. Further, because of the relatively low 
density of mysticetes, and relatively large area over which the vessels 
travel, we do not expect any individual whales to be exposed to 
potentially masking levels from these surveys for more than a few days 
in a year.
    As noted above, any masking effects of this survey are expected to 
be limited and brief, if present. Given the likelihood of significantly 
reduced received levels beyond even short distances from the survey 
vessel, combined with the short duration of potential masking and the 
lower likelihood of extensive additional contributors to background 
noise offshore and within these short exposure periods, we believe that 
the incremental addition of the survey vessel is unlikely to result in 
more than minor and short-term masking effects, likely occurring to 
some small number of the same individuals captured in the estimate of 
behavioral harassment.
    Comment 25: COA and SLC urged NMFS to deny the proposed project 
and/or postpone any offshore wind activities until NMFS determines 
effects of all offshore wind-related activities on marine mammals in 
the region and determines that the recent whale deaths are not related 
to offshore wind activities. Commenters provided general concerns 
regarding recent whale stranding events on the Atlantic Coast, 
including speculation that the strandings may be related to wind energy 
development activities. In addition, SLC urged NMFS to investigate 
whether wind energy development activities may have physiological or 
mortality-inducing effects on whales.
    Response: NMFS authorizes take of marine mammals incidental to 
marine site characterization surveys but does not authorize the surveys 
themselves. Therefore, while NMFS has the authority to modify, suspend, 
or revoke an IHA if the IHA holder fails to abide by the conditions 
prescribed therein (including, but not limited to, failure to comply 
with monitoring or reporting requirements), or if NMFS determines that 
(1) the authorized taking is having or is likely to have more than a 
negligible impact on the species or stocks of affected marine mammals, 
or (2) the prescribed measures are likely not or are not effecting the 
least practicable adverse impact on the affected species or stocks and 
their habitat, it is not within NMFS' jurisdiction to impose a 
moratorium on offshore wind development or to require surveys to cease 
on the basis of unsupported speculation.
    NMFS reiterates that there is no evidence that noise resulting from 
offshore wind development-related site characterization surveys could 
potentially cause marine mammal stranding, and there is no evidence 
linking recent large whale mortalities and currently ongoing surveys. 
The commenters offer no such evidence. NMFS will continue to gather 
data to help us determine the cause of death for these stranded whales. 
We note the Marine Mammal Commission's recent statement: ``There 
continues to be no evidence to link these large whale strandings to 
offshore wind energy development, including no evidence to link them to 
sound emitted during wind development-related site characterization 
surveys, known as HRG surveys. Although HRG surveys have been occurring 
off New England and the mid-Atlantic coast, HRG devices have never been 
implicated or causatively-associated with baleen whale strandings.'' 
(Marine Mammal Commission Newsletter, Spring 2023). Furthermore, NMFS 
does not expect that the generally short-term, intermittent, and 
transitory marine site characterization survey activities planned by 
Vineyard Northeast will create conditions of acute or chronic acoustic 
exposure leading to long-term physiological impacts in whales.
    There is an ongoing Unusual Mortality Event (UME) for humpback 
whales along the Atlantic coast from Maine to Florida, which includes 
animals stranded since 2016. Partial or full necropsy examinations were 
conducted on approximately half of the whales. Necropsies were not 
conducted on other carcasses because they were too decomposed, not 
brought to land, or stranded on protected lands (e.g., national and 
state parks) with limited or no access. Of the whales examined (roughly 
90), about 40 percent had evidence of human interaction, either vessel 
strike or entanglement. Vessel strikes and entanglement in fishing gear 
are the greatest human threats to large whales. The remaining 50 
necropsied whales either had an undetermined cause of death (due to a 
limited examination or decomposition of the carcass), or had other 
causes of death including parasite-caused organ damage and starvation. 
As discussed herein, HRG sources may behaviorally disturb marine 
mammals (e.g., avoidance of the immediate area). These HRG surveys are 
very different from seismic airguns used in oil and gas surveys or 
tactical military sonar. They produce much smaller impact zones 
because, in general, they have lower source levels and produce output 
at higher frequencies. The area within which HRG sources might 
behaviorally disturb a marine mammal is orders of magnitude smaller 
than the impact areas for seismic airguns or military sonar. Any marine 
mammal exposure would be at significantly lower levels and shorter 
duration, which is associated with less severe impacts to marine 
mammals.

Description of Marine Mammals

    A description of the marine mammals in the 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 IHA. NMFS reviewed the most recent draft 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 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. 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).
    NMFS notes that, since issuance of the 2022 IHA, a new SAR was made 
available with new information presented for the NARW (see https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). We note that the estimated abundance for the 
species declined from 368 to 338.

[[Page 50126]]

However, this change does not affect our analysis of impacts, as 
described under the 2022 IHA.

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) 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 1.

                  Table 1--Marine Mammal Hearing Groups
                              (NMFS, 2018)
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, 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)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea 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.
    Nineteen marine mammal species (comprising 20 total stocks; 17 
cetacean (18 stocks) and 2 pinniped (both phocid) species) have the 
reasonable potential to co-occur with the survey activities. Of the 
cetacean species that may be present, 6 are classified as low-frequency 
cetaceans (i.e., all mysticete species), 10 are classified as mid-
frequency cetaceans (i.e., all delphinid species and the sperm whale), 
and 1 is classified as a high-frequency cetacean (i.e., harbor 
porpoise).

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 available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
    The take that NMFS has authorized can be found in Table 2, 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 
authorized any take by Level A harassment. Mortality or serious injury 
is neither anticipated to occur nor authorized.

                                 Table 2--Total Authorized Take, by Level B Harassment Only, Relative to Population Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                     2023 IHA
                                                                                                             2022 IHA    -------------------------------
               Species                      Scientific name               Stock              Abundance      authorized      Authorized      Max percent
                                                                                                               take          take \1\       population
--------------------------------------------------------------------------------------------------------------------------------------------------------
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

[[Page 50127]]

 
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.................  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 potential biological removal (PBR) value) applies to U.S. population only. Total stock abundance
  (including animals in Canada) is approximately 451,600.

Description of Mitigation, Monitoring and Reporting Measures

    The required mitigation, monitoring, and reporting measures 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. The measures are 
found below.
    Vineyard Northeast must also abide by all the marine mammal 
relevant conditions in the NOAA Fisheries GARFO programmatic 
consultation (specifically Project Design Criteria (PDC) 4, 5, and 7) 
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), pursuant to Section 7 of the Endangered Species Act.
    Additionally, on August 1, 2022, NMFS announced proposed changes to 
the existing NARW vessel speed regulations to further reduce the 
likelihood of mortalities and serious injuries to endangered NARWs from 
vessel collisions, which are a leading cause of the species' decline 
and a primary factor in an ongoing 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 
established around the HRG survey equipment and monitored by NMFS-
approved PSOs as follows:
     500-m SZ for NARWs 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 NARWs) 
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 will 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

[[Page 50128]]

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 visually detected within the SZ, shutdown will 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 kn (18.5 km/hour) 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 NARW reporting system and WhaleAlert daily.
    Throughout all phases of the survey activities, Vineyard Northeast 
must monitor NOAA Fisheries NARW 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-kn (5.14 m/s) speed restriction.
    Training--Project-specific training is required for all vessel crew 
prior to the start of survey activities.

[[Page 50129]]

    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).

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 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 will 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 authorized, in reality, much of the survey activity will 
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 survey area overlaps or is in close proximity to feeding BIAs 
for NARWs (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 NARWs (November 1-April 30) (LaBrecque 
et al., 2015). In addition, the 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 
NARW 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 NARWs; 
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 km\2\ for minke whales), 
and the acoustic footprint of the survey is sufficiently small that 
feeding opportunities for these species will 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 will be impacted and, therefore, no 
impacts on the annual rates of recruitment or survival will 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 survey area.
    As noted for the 2022 IHA (87 FR 52913, August 30, 2022), the 
survey area overlaps a migratory corridor BIA and migratory route SMAs 
(Port of New Jersey/New York and Block Island) for NARWs. As the survey 
activities will be temporary and the spatial acoustic footprint 
produced by the survey will be very small relative to the spatial 
extent of the available migratory habitat in the BIA (269,448 km\2\), 
NMFS does not expect NARW migration to be impacted by the survey. 
Required vessel strike avoidance measures will also decrease risk of 
ship strike during migration; no ship strike is expected to occur 
during Vineyard Northeast's planned activities. Vineyard Northeast will 
be required to comply with seasonal speed restrictions of these SMAs, 
and in any DMA, should NMFS establish one (or more) in the survey area. 
Additionally, Vineyard Northeast requested and NMFS has authorized 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 NARWs has been authorized by 
NMFS, we anticipate a very low level of harassment, should it occur at 
all, because Vineyard Northeast is required to maintain a shutdown zone 
of 500 m if a NARW is observed. The takes that are authorized account 
for any missed animals wherein the survey equipment is not shut down 
immediately. As shutdown will be called for immediately upon detection 
(if the whale is within 500 m), it is likely the exposure time will be 
very limited and received levels will 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 PTS zones associated with 
HRG equipment types planned for use. NMFS does not anticipate NARW 
takes that will result from Vineyard Northeast's activities will impact 
annual rates of recruitment or survival. Thus, any takes that occur 
will 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 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 determined the following: (1) the required 
mitigation measures will

[[Page 50130]]

effect the least practicable impact on marine mammal species or stocks 
and their habitat; (2) the authorized takes will have a negligible 
impact on the affected marine mammal species or stocks; (3) the 
authorized takes represent small numbers of marine mammals relative to 
the affected stock abundances; (4) Vineyard Northeast's activities will 
not have an unmitigable adverse impact on taking for subsistence 
purposes as no relevant subsistence uses of marine mammals are 
implicated by this action, and (5) appropriate monitoring and reporting 
requirements are included.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (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 has authorized 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).

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

Authorization

    NMFS has issued an IHA to Vineyard Northeast for the potential 
harassment of small numbers of 19 marine mammal species incidental to 
marine site characterization surveys offshore of Massachusetts to 
southern New Jersey provided the previously mentioned mitigation, 
monitoring, and reporting requirements are followed.

    Dated: July 27, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-16292 Filed 7-31-23; 8:45 am]
BILLING CODE 3510-22-P