Notice2023-13118
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
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 21, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from Vineyard Northeast, LLC (Vineyard Northeast) for authorization to take marine mammals incidental to marine site characterization surveys offshore from Massachusetts to New Jersey in the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas) and associated offshore export cable corridor (OECC) routes.
Full Text
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<title>Federal Register, Volume 88 Issue 118 (Wednesday, June 21, 2023)</title>
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[Federal Register Volume 88, Number 118 (Wednesday, June 21, 2023)]
[Notices]
[Pages 40212-40220]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13118]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD032]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Site Characterization Surveys
Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization (IHA);
request for comments on proposed authorization and possible renewal.
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SUMMARY: NMFS has received a request from Vineyard Northeast, LLC
(Vineyard Northeast) for authorization to take marine mammals
incidental to marine site characterization surveys offshore from
Massachusetts to New Jersey in the Bureau of Ocean Energy Management
(BOEM) Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and
OCS-A 0544 (Lease Areas) and associated offshore export cable corridor
(OECC) routes.
DATES: Comments and information must be received no later than July 21,
2023.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written
[[Page 40213]]
comments should be submitted via email to <a href="/cdn-cgi/l/email-protection#5c15080c72083d2530332e1c32333d3d723b332a"><span class="__cf_email__" data-cfemail="5c15080c72083d2530332e1c32333d3d723b332a">[email protected]</span></a>.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All personal identifying
information (e.g., name, address) voluntarily submitted by the
commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application and supporting documents (including NMFS Federal Register
notices of the original proposed and final authorizations, and the
previous IHA), as well as a list of the references cited in this
document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The activities described in Vineyard Northeast's request and the
acoustic sources proposed for use are identical to what was previously
analyzed in support of the IHA issued by NMFS to Vineyard Northeast for
2022 site characterization surveys (2022 IHA) (87 FR 30872, May 20,
2022; 87 FR 52913, August 30, 2022), although the survey duration and
project area will be a subset of the survey effort authorized for the
2022 IHA as a portion of this effort has been completed. All proposed
mitigation, monitoring, and reporting requirements remain the same.
While Vineyard Northeast's planned activity would qualify for renewal
of the 2022 IHA, due to the availability of updated marine mammal
density data (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>), which NMFS
has determined represents the best available scientific data, NMFS has
determined to proceed with a new IHA process rather than a renewal,
providing a 30-day period for the public to comment on this proposed
action.
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is
requesting comments on its proposal to issue an IHA to allow Vineyard
Northeast to incidentally take marine mammals during the specified
activities. NMFS is also requesting comments on a possible 1-year
Renewal IHA that could be issued under certain circumstances and if all
requirements are met, as described in Request for Public Comments at
the end of this notice. NMFS will consider public comments prior to
making any final decision on the issuance of the requested MMPA
authorization and agency responses will be summarized in the final
notice of our decision.
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of such takings are set forth.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment. This action
is consistent with categories of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of
the Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has preliminarily determined
that the issuance of the proposed IHA qualifies to be categorically
excluded from further NEPA review.
We will review all comments submitted in response to this
notification prior to concluding our NEPA process or making a final
decision on the IHA request.
Summary of Request
On April 17, 2023, NMFS received a request from Vineyard Northeast
for an IHA to take marine mammals incidental to high resolution
geophysical (HRG) marine site characterization surveys offshore from
Massachusetts to New Jersey in the areas of BOEM Commercial Lease of
Submerged Lands for Renewable Energy Development on the OCS-A 0522
(Lease Area), OCS-A 0544 (Lease Area), and associated offshore export
cable corridor (OECC) routes. Following NMFS' review of the
application, Vineyard Northeast submitted a revised request on May 25,
2023. The application (the 2023 request) was deemed adequate and
complete on May 25, 2023. Vineyard Northeast's request is for take of
19 species (comprising 20 stocks) of marine mammals, by Level B
harassment only. Neither Vineyard Northeast nor NMFS expect serious
injury or mortality to result from this activity and, therefore, an IHA
is appropriate. Take by Level A harassment (injury) is unlikely, even
absent mitigation, based on the characteristics of the signals produced
by the acoustic sources planned for use.
NMFS has previously issued a similar IHA to Vineyard Northeast. On
December 17, 2021, NMFS received a request from Vineyard Northeast for
an IHA to take marine mammals incidental to marine site
characterization surveys offshore from Massachusetts to New Jersey, in
the area of Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and
OCS-A 0544 (Lease Areas) and potential OECC routes to landfall
locations. Vineyard Northeast requested authorization to take small
numbers of 19 species (comprising 20 stocks) of marine mammals by Level
B harassment only. NMFS published a notice of the proposed IHA in the
Federal Register
[[Page 40214]]
on May 20, 2022 (87 FR 30872). After a 30-day public comment period and
consideration of all public comments received, we subsequently issued
the 2022 IHA, which is effective from July 27, 2022, to July 26, 2023
(87 FR 52913, August 30, 2022).
Vineyard Northeast completed a subset of the survey work under the
2022 IHA and submitted a preliminary monitoring report, which
demonstrates that they conducted the required marine mammal mitigation
and monitoring, and did not exceed the authorized levels of take under
the previous IHA issued for surveys offshore from Massachusetts to New
Jersey (See 87 FR 52913, August 30, 2022). These monitoring results are
available to the public on our website: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
The 2023 request is nearly identical to the 2022 IHA, with the
exception that the survey effort is a subset of the original effort
authorized for the 2022 IHA. However, Duke University's Marine
Geospatial Ecology Laboratory released updated marine mammal density
information (June 20, 2022) for all species in the project area
(<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a> EC/) after issuance of the
2022 IHA, and NMFS determined it would issue a proposed IHA rather than
undertake the renewal process. In evaluating the 2023 request and to
the extent deemed appropriate, NMFS also relies on the information
presented in notices associated with issuance of the 2022 IHA (87 FR
30872, May 30 2022; 87 FR 52913, August 30, 2022).
Description of the Proposed Activity and Anticipated Impacts
Overview
Vineyard Northeast proposes to conduct HRG surveys in the BOEM
Lease Areas OCS-A 0522 and 0544 and along potential submarine OECC's
from southern Massachusetts to southern New Jersey. The purpose of the
proposed surveys is to obtain an assessment of seabed (geophysical,
geotechnical, and geohazard), ecological, and archeological conditions
within the footprint of the planned offshore wind facility development
area. Surveys are also conducted to inform and support engineering
design and to map unexploded ordnance. Survey equipment would be
deployed from multiple vessels during site characterization activities
in the project area, and up to two vessels would operate at a time in
the lease areas and along the OECCs. During survey effort, the vessel
would operate at a maximum speed of 4 knots (4.6 miles or 7.4 km per
hour). Underwater sound, resulting from Vineyard Northeast's
activities, has the potential to result in incidental take of marine
mammals in the form of Level B harassment.
Dates and Duration
The proposed activity is estimated to require 467 survey days
(37,360 km of trackline) using a maximum of 4 concurrently operating
survey vessels, and is expected to be carried out over the course of
the 1-year period beginning from the date of issuance of this IHA. A
``survey day'' is defined as a 24-hour (hr) activity period in which
active HRG acoustic sources are used. This schedule is inclusive of any
inclement weather downtime and crew transfers. The number of survey
days was calculated as the number of days needed to reach the overall
level of effort required to meet survey objectives assuming any single
vessel covers, on average, 80 km (49.7 miles) of survey trackline per
24 hours of operations. By the time the 2022 IHA expires, Vineyard
Northeast expects to have completed 302 vessel days (24,160 km of
trackline) of the original planned survey effort (869 vessel days;
69,520 km of trackline). Vineyard Northeast has estimated survey effort
to require 100 vessel days (8,000 km of trackline) less than originally
anticipated in association with the 2022 IHA (87 FR 52913, August 30,
2022).
Specific Geographic Region
Vineyard Northeast's proposed activities would occur in both
Federal offshore waters (including Lease Areas OCS-A 0522 and OCS-A
0544) and along potential OECCs in both Federal and State nearshore
waters of Massachusetts, Rhode Island, Connecticut, New York, and New
Jersey, as shown in Figure 1. As compared to the 2022 IHA (87 FR 52913,
August 30, 2022), Vineyard Northeast revised their project area to be
more representative of the actual area in which HRG surveys would
occur. The revised project area description is based upon updated
information received from the Vineyard Northeast site investigation
team.
The Lease Area OCS-A 0522 is approximately 536 square kilometers
(km\2\) (132,370 acres) and located 24 kilometers (km) (15 miles; mi)
from the southeast corner of Martha's Vineyard, within the
Massachusetts Wind Energy Area (WEA). The 174 km\2\ (43,056 acre) Lease
Area OCS-A 0544 is located approximately 38 km (24 mi) from Long
Island, New York, within BOEM's Mid-Atlantic Planning Area. Surveys
outside of the Lease Areas would extend from southern Massachusetts to
southern New Jersey, including the Massachusetts/Rhode Island WEA as
well as the northern portion of the Mid-Atlantic planning area. Total
survey area would be approximately 33,814 km\2\ (8,355,621.4 acres).
Water depth across the proposed survey area ranges from approximately
35 to 60 meters (m) (115 to 197 feet [ft]) in the Lease Areas. Average
water depth along the proposed OECCs is approximately 38 m (123.8 ft).
[[Page 40215]]
[GRAPHIC] [TIFF OMITTED] TN21JN23.042
Detailed Description of the Action
A detailed description of the proposed survey activities can be
found in the previous Federal Register notices (87 FR 30872, May 20,
2022; 87 FR 52913, August 30, 2022) and supplementary documents,
available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llc-marine-site-characterization-surveys">https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llc-marine-site-characterization-surveys</a>. The specific geographic region and nature of the activities,
including the types of HRG equipment planned for use (side scan sonar,
multibeam echosounder, magnetometers and gradiometers, parametric sub-
bottom profiler (SBP), compressed high intensity radar pulse (CHIRP)
SBP, boomers, and sparkers; daily trackline distances (80 km per day);
and the number of survey vessels (up to two in a Lease Area and up to
two along OECC routes, including nearshore survey areas) are identical
or nearly identical to those described in those previous notices.
Description of Marine Mammals
A description of the marine mammals in the proposed survey area can
be found in the previous documents and notices for the 2022 IHA (87 FR
30872, May 20, 2022; 87 FR 52913, August 30, 2022), which remains
applicable to this proposed IHA. NMFS reviewed the most recent draft
Stock Assessment Reports (SARs, found on NMFS' website at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>, up-to-date information on relevant Unusual Mortality
Events (UMEs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events</a>), and recent
scientific literature and determined that no new information affects
our original analysis of impacts under the 2022 IHA.
NMFS notes that, since issuance of the 2022 IHA, a new SAR is
available for the North Atlantic right whale. Estimated abundance for
the species declined from 368 to 338. However, this change does not
affect our analysis of impacts, as described under the 2022 IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat can be found in the documents
supporting the 2022 IHA (87 FR 30872, May 20, 2022; 87 FR 52913, August
30, 2022). At present, there is no new information on potential effects
that would influence our analysis.
Estimated Take
A detailed description of the methods used to estimate take
anticipated to occur incidental to the project is found in the previous
Federal Register notices (87 FR 30872, May 20, 2022; 87 FR 52913,
August 30, 2022). The methods of estimating take are identical to those
used in the 2022 IHA. Vineyard Northeast updated the marine mammal
densities based on new information (Roberts et al., 2016; Roberts et
al., 2023), available online at: <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a> EC/. We refer the reader to Table 8 in Vineyard Northeast's 2023
IHA request for the specific density values used in the analysis. The
IHA request is
[[Page 40216]]
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
The take that NMFS proposes to authorize can be found in Table 1,
which presents the results of Vineyard Northeast's density-based
calculations for the survey area. For comparative purposes, we have
provided the 2022 IHA authorized Level B harassment take (87 FR 52913,
August 30, 2022). NMFS notes that take by Level A harassment was not
requested, nor does NMFS anticipate that it could occur. Therefore,
NMFS has not proposed to authorize any take by Level A harassment.
Mortality or serious injury is neither anticipated to occur nor
proposed for authorization.
Table 1--Summary of Take Numbers Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
2023 Proposed IHA
-------------------------------
2022 IHA Take proposed
Species Scientific name Stock Abundance authorized for Max percent
take authorization population
\1\
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Blue whale........................... Balaenoptera musculus... Western North Atlantic. 402 1 1 0.25
North Atlantic Right Whale........... Eubalaena glacialis..... Western North Atlantic. 338 40 12 3.6
Humpback Whale....................... Megaptera novaeangliae.. Gulf of Maine.......... 1,396 47 12 0.86
Fin Whale............................ Balaenoptera physalus... Western North Atlantic. 6,802 77 20 0.29
Sei Whale............................ Balaenoptera borealis... Nova Scotia............ 6,292 5 5 0.08
Minke whale.......................... Balaenoptera Canadian Eastern 21,968 42 46 0.21
acutorostrata. Coastal.
Sperm whale.......................... Physeter macrocephalus.. North Atlantic......... 4,349 12 2 0.05
Long-finned pilot whale \1\.......... Globicephala melas...... Western North Atlantic. 39,215 405 17 0.04
Killer whale \2\..................... Orcinus orca............ Western North Atlantic. UNK 2 \3\ 4 \4\ 5.9
False killer whale \2\............... Pseudorca crassidens.... Western North Atlantic. 1,791 5 5 0.28
Atlantic spotted dolphin \3\......... Stenella frontalis...... Western North Atlantic. 39,921 29 29 0.07
Atlantic white-sided dolphin......... Lagenorhynchus acutus... Western North Atlantic. 93,233 1,124 129 0.14
Bottlenose dolphin................... Tursiops truncatus...... Western North Atlantic 6,639 151 45 0.68
Northern Migratory
Coastal.
Western North Atlantic 62,851 569 169 0.27
Offshore.
Common dolphin....................... Delphinus delphis....... Western North Atlantic. 172,974 13,904 7,472 4.3
Risso's dolphin...................... Grampus griseus......... Western North Atlantic. 35,215 101 9 0.03
White-beaked dolphin \2\............. Lagenorhynchus Western North Atlantic. 536,016 30 30 0.006
albirostris.
Harbor porpoise...................... Phocoena phocoena....... Gulf of Maine/Bay of 95,543 2,033 347 0.36
Fundy.
Harbor seal \5\...................... Phoca vitulina.......... Western North Atlantic. 61,336 939 939 1.5
Gray seal \5\........................ Halichoerus grypus...... Western North Atlantic. \6\ 27,300 418 418 1.5
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\1\ Roberts et al. (2023) only provides density estimates for pilot whales as a guild. Given the project's location, NMFS assumes that all take will be
of long-finned pilot whales.
\2\ Rare (or unlikely to occur) species.
\3\ Adjusted according to average group size (Kraus et al., 2016; Palka et al., 2017).
\4\ Based upon minimum population estimate of 67 individual killer whales identified in the Northwestern Atlantic Ocean (Lawson and Stevens, 2014).
\5\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. In order to determine the species-specific
density-based exposure estimates for seals, Vineyard Northeast used the following approach. Vineyard Northeast summed the SAR Nbest abundance
estimates (Hayes et al., 2022) for the 2 seal species and divided the total by the estimate for each species to get the proportion of the total for
each species. Vineyard Northeast then multiplied these proportions by the total estimated exposure for the seal guild density (Roberts et al., 2023)
to get the species-specific density-based exposure estimates. NMFS accepts this approach.
\6\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,600.
Description of Proposed Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures proposed here
are identical to those included in the Federal Register notice
announcing the final 2022 IHA and the discussion of the least
practicable adverse impact included in that document remains accurate.
These mitigation, monitoring, and reporting measures are described
below. As described in the previous Federal Register notices (87 FR
30872, May 20, 2022; 87 FR 52913, August 30, 2022), NMFS determined
that issuance of the 2022 IHA to Vineyard Northeast was within the
scope of the NOAA Fisheries Greater Atlantic Regional Office (GARFO)
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions (NOAA
GARFO, 2021; <a href="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">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</a>). NMFS similarly concludes that
the currently proposed survey activities are within scope of the
consultation, and thus will require adherence to the relevant Project
Design Criteria (PDC) (specifically PDCs 4, 5, and 7).
Additionally, on August 1, 2022, NMFS announced proposed changes to
the existing North Atlantic right whale vessel speed regulations to
further reduce the likelihood of mortalities and serious injuries to
endangered North Atlantic right whales from vessel collisions, which
are a leading cause of the species' decline and a primary factor in an
ongoing Unusual Mortality Event (87 FR 46921). Should a final vessel
speed rule be issued and become effective during the effective period
of this IHA (or any other MMPA incidental take authorization), the
authorization holder would be required to comply with any and all
applicable requirements contained within the final rule. Specifically,
where measures in any final vessel speed rule are more protective or
restrictive than those in this or any other MMPA authorization,
authorization holders would be required to comply with the requirements
of the rule. Alternatively, where measures in this or any other MMPA
authorization are more restrictive or protective than those in any
final vessel speed rule, the measures in the MMPA authorization must be
followed. The responsibility to comply with the applicable requirements
of any vessel speed rule would become effective immediately upon the
effective date of any final vessel speed rule and, when notice is
published of the effective date, NMFS would also notify Vineyard
Northeast if the measures in the speed rule were to supersede any of
the measures in the MMPA authorization.
Establishment of Shutdown Zones (SZ)--Marine mammal SZs must be
[[Page 40217]]
established around the HRG survey equipment and monitored by NMFS-
approved protected species observers (PSO) during HRG surveys as
follows:
<bullet> 500-m SZ for North Atlantic right whales during use of
specified acoustic sources (impulsive: sparkers and boomers; non-
impulsive: non-parametric sub-bottom profilers); and,
<bullet> 100-m SZ for all other marine mammals (excluding North
Atlantic right whales) during operation of the sparker and boomer. The
only exception for this is for pinnipeds (seals) and small delphinids
(i.e., those from the genera Delphinus, Lagenorhynchus, Stenella or
Tursiops).
If a marine mammal is detected approaching or entering the SZs
during the HRG survey, the vessel operator would adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
During use of acoustic sources with the potential to result in marine
mammal harassment (sparkers, boomers, and non-parametric sub-bottom
profilers; i.e., anytime the acoustic source is active, including ramp-
up), occurrences of marine mammals within the monitoring zone (but
outside the SZs) must be communicated to the vessel operator to prepare
for potential shutdown of the acoustic source.
Visual Monitoring--Monitoring must be conducted by qualified PSOs
who are trained biologists, with minimum qualifications described in
the Federal Register notices for the 2022 project (87 FR 30872, May 20,
2022; 87 FR 52913, August 30, 2022). Vineyard Northeast must have one
PSO on duty during the day and a minimum of two NMFS-approved PSOs must
be on duty and conducting visual observations when HRG equipment is in
use at night. Visual monitoring must begin no less than 30 minutes
prior to ramp-up of HRG equipment and continue until 30 minutes after
use of the acoustic source. PSOs must establish and monitor the
applicable clearance zones, SZs, and vessel separation distances as
described in the 2022 IHA (87 FR 52913, August 30, 2022). PSOs must
coordinate to ensure 360-degree visual coverage around the vessel from
the most appropriate observation posts, and must conduct observations
while free from distractions and in a consistent, systematic, and
diligent manner. PSOs are required to estimate distances to observed
marine mammals. It is the responsibility of the Lead PSO on duty to
communicate the presence of marine mammals as well as to communicate
action(s) that are necessary to ensure mitigation and monitoring
requirements are implemented as appropriate.
Pre-Start Clearance--Marine mammal clearance zones (CZs) must be
established around the HRG survey equipment and monitored by NMFS-
approved PSOs prior to use of boomers, sparkers, and non-parametric
sub-bottom profilers as follows:
<bullet> 500-m CZ for all Endangered Species Act-listed species;
and
<bullet> 100-m CZ for all other marine mammals.
Prior to initiating HRG survey activities, Vineyard Northeast must
implement a 30-minute pre-start clearance period. The operator must
notify a designated PSO of the planned start of ramp-up where the
notification time should not be less than 60 minutes prior to the
planned ramp-up to allow the PSOs to monitor the CZs for 30 minutes
prior to the initiation of ramp-up. Prior to ramp-up beginning,
Vineyard Northeast must receive confirmation from the PSO that the CZs
are clear prior to preceding. Any PSO on duty has the authority to
delay the start of survey operations if a marine mammal is detected
within the applicable pre-start clearance zones.
During this 30-minute period, the entire CZ must be visible. The
exception to this would be in situations where ramp-up must occur
during periods of poor visibility (inclusive of nighttime) as long as
appropriate visual monitoring has occurred with no detections of marine
mammals in 30 minutes prior to the beginning of ramp-up.
If a marine mammal is observed within the relevant CZs during the
pre-start clearance period, initiation of HRG survey equipment must not
begin until the animal(s) has been observed exiting the respective CZ,
or, until an additional period has elapsed with no further sighting
(i.e., minimum 15 minutes for small odontocetes and seals; 30 minutes
for all other species). The pre-start clearance requirement includes
small delphinids. PSOs must also continue to monitor the zone for 30
minutes after survey equipment is shut down or survey activity has
concluded.
Ramp-Up of Survey Equipment--When technically feasible, a ramp-up
procedure must be used for geophysical survey equipment capable of
adjusting energy levels at the start or re-start of survey activities.
The ramp-up procedure must be used at the beginning of HRG survey
activities in order to provide additional protection to marine mammals
near the project area by allowing them to detect the presence of the
survey and vacate the area prior to the commencement of survey
equipment operation at full power. Ramp-up of the survey equipment must
not begin until the relevant SZs have been cleared by the PSOs, as
described above. HRG equipment operators must ramp up acoustic sources
to half power for 5 minutes and then proceed to full power. If any
marine mammals are detected within the SZs prior to or during ramp-up,
the HRG equipment must be shut down (as described below).
Shutdown Procedures--If an HRG source is active and a marine mammal
is observed within or entering a relevant SZ (as described above), an
immediate shutdown of the HRG survey equipment is required. When
shutdown is called for by a PSO, the acoustic source must be
immediately deactivated and any dispute resolved only following
deactivation. Any PSO on duty has the authority to delay the start of
survey operations or to call for shutdown of the acoustic source if a
marine mammal is detected within the applicable SZ. The vessel operator
must establish and maintain clear lines of communication directly
between PSOs on duty and crew controlling the HRG source(s) to ensure
that shutdown commands are conveyed swiftly while allowing PSOs to
maintain watch. Subsequent restart of the HRG equipment may only occur
after the marine mammal has been observed exiting the relevant SZ, or,
until an additional period has elapsed with no further sighting of the
animal within the relevant SZ.
Upon implementation of shutdown, the HRG source may be reactivated
after the marine mammal that triggered the shutdown has been observed
exiting the applicable SZ or, following a clearance period of 15
minutes for small odontocetes (i.e., harbor porpoise) and 30 minutes
for all other species with no further observation of the marine
mammal(s) within the relevant SZ. If the HRG equipment is shut down for
brief periods (i.e., less than 30 minutes) for reasons other than
mitigation (e.g., mechanical or electronic failure) the equipment may
be reactivated as soon as is practicable at full operational level,
without 30 minutes of pre-clearance, only if PSOs have maintained
constant visual observation during the shutdown and no visual
detections of marine mammals occurred within the applicable SZs during
that time. For a shutdown of 30 minutes or longer, or if visual
observation was not continued diligently during the pause, pre-
clearance observation is required, as described above.
The shutdown requirement is waived for pinnipeds (seals) and
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus,
Stenella, or Tursiops) under certain circumstances. If a delphinid(s)
from these genera is
[[Page 40218]]
visually detected within the SZ, shutdown would not be required. If
there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived), PSOs must use best
professional judgment in making the decision to call for a shutdown.
If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
area encompassing the Level B harassment isopleth (178 m), shutdown
must occur.
Vessel Strike Avoidance--Vineyard Northeast must comply with vessel
strike avoidance measures as described in the Federal Register notice
for the 2022 IHA (87 FR 52913, August 30, 2022). This includes speed
restrictions (10 knots or less) when mother/calf pairs, pods, or large
assemblages of cetaceans are spotted near a vessel; species-specific
vessel separation distances; appropriate vessel actions when a marine
mammal is sighted (e.g., avoid excessive speed, remain parallel to
animal's course, etc.); and monitoring of the NMFS North Atlantic Right
Whale reporting system and WhaleAlert daily.
Throughout all phases of the survey activities, Vineyard Northeast
must monitor NOAA Fisheries North Atlantic right whale reporting
systems for the establishment of a dynamic management area (DMA). If
NMFS establishes a DMA in the surrounding area, including the project
area or export cable routes being surveyed, Vineyard Northeast is
required to abide by the 10-knot speed restriction.
Training--Project-specific training is required for all vessel crew
prior to the start of survey activities.
Reporting--PSOs must record specific information as described in
the Federal Register notice of the issuance of the 2022 IHA (87 FR
52913, August 30, 2022). Within 90 days after completion of survey
activities, Vineyard Northeast must provide NMFS with a monitoring
report, which must include summaries of recorded takes and estimates of
the number of marine mammals that may have been harassed.
In the event of a ship strike or discovery of an injured or dead
marine mammal, Vineyard Northeast must report the incident to the
Office of Protected Resources (OPR), NMFS and to the New England/Mid-
Atlantic Regional Stranding Coordinator as soon as feasible. The report
must include the information listed in the Federal Register notice of
the issuance of the initial IHA (87 FR 52913, August 30, 2022).
Preliminary Determinations
Vineyard Northeast's HRG survey activities are a subset but
otherwise unchanged from those analyzed in support of the 2022 IHA. The
effects of the activity, taking into consideration the proposed
mitigation and related monitoring measures, remain unchanged from those
evaluated in support of the 2022 IHA, regardless of the minor increase
in estimated take for one species (minke whale). NMFS expects that all
potential takes would be short-term Level B behavioral harassment in
the form of temporary avoidance of the area or decreased foraging,
reactions that are considered to be of low severity and with no lasting
biological consequences (e.g., Southall et al., 2007). In addition to
being temporary, the maximum harassment zone around a survey vessel is
178 m from use of the Applied Acoustics AA251 Boomer. Although this
distance is assumed for all survey activity evaluated here and in
estimating take numbers proposed for authorization, in reality, much of
the survey activity would involve use of acoustic sources with a
reduced acoustic harassment zone (4 m for the Edge Tech Chirp 216 or
141 m for the GeoMarine Geo Spark 2000), producing expected effects of
particularly low severity. Therefore, the ensonified area surrounding
each vessel is relatively small compared to the overall distribution of
the animals in the area and the available habitat.
The proposed survey area overlaps or is in close proximity to
feeding biologically important areas (BIA)s for North Atlantic right
whales (Cape Cod Bay and Massachusetts Bay BIA, February-April/Great
South Channel and Georges Bank Shelf Break BIA, April-June), humpback
whales (March-December), fin whales (year-round/March-October), sei
whales (May-November), and minke whales (March-November), as well as
overlaps the migratory BIA for North Atlantic right whales (November 1-
April 30) (LaBrecque et al., 2015). In addition, the proposed survey
area overlaps with the area south of Martha's Vineyard and Nantucket,
referred to as ``South of the Islands,'' which has been identified as
relatively new year-round core North Atlantic right whale foraging
habitat (Oleson et al., 2020; Quintana-Rizzo et al., 2021). As prey
species are mobile and broadly distributed throughout the survey area,
marine mammals that are temporarily displaced during survey activities
are expected to be able to resume foraging once they have moved away
from areas with disturbing levels of underwater noise, thus we do not
expect biologically significant impacts to feeding behavior. In
addition, most of these feeding BIAs are extensive and sufficiently
large (e.g., 3,149 km\2\ and 12,247 km\2\ for North Atlantic right
whales; 47,701 km\2\ for humpback whales; 18,015 km\2\ and 2,933 km\2\
for fin whales; 56,609 km\2\ for sei whales; 54,341 for minke whales),
and the acoustic footprint of the proposed survey is sufficiently small
that feeding opportunities for these species would not be reduced
appreciably. Due to the temporary nature of the disturbance and the
availability of similar habitat and resources in the surrounding area,
the impacts to marine mammals and the food sources that they utilize
are not expected to cause significant or long-term consequences for
individual marine mammals or their populations. Even considering the
increased estimated take for one species (minke whales), the impacts of
these lower severity exposures are not expected to accrue to a degree
that the fitness of any individuals would be impacted and, therefore,
no impacts on the annual rates of recruitment or survival would result.
As previously discussed in the 2022 IHA (87 FR 52913, August 30,
2022), impacts from the survey are expected to be localized to the
specific area of activity and only during periods when Vineyard
Northeast's acoustic sources are active. There are no rookeries, mating
or calving grounds known to be biologically important to marine mammals
within the proposed survey area.
As noted for the 2022 IHA (87 FR 52913, August 30, 2022), the
proposed survey area overlaps a migratory corridor BIA and migratory
route SMAs (Port of New Jersey/New York and Block Island) for North
Atlantic right whales. As the survey activities would be temporary and
the spatial acoustic footprint produced by the survey would be very
small relative to the spatial extent of the available migratory habitat
in the BIA (269,448 km\2\), NMFS does not expect North Atlantic right
whale migration to be impacted by the survey. Required vessel strike
avoidance measures would also decrease risk of ship strike during
migration; no ship strike is expected to occur during Vineyard
Northeast's proposed activities. Vineyard Northeast would be required
to comply with seasonal speed restrictions of these SMAs, and in any
dynamic management area (DMA), should NMFS establish one (or more) in
the proposed survey area. Additionally,
[[Page 40219]]
Vineyard Northeast requested and NMFS proposes to authorize only 12
takes by Level B harassment of NARWs. This amount is less than the 40
Level B harassment takes authorized in the 2022 IHA due to the updated
Duke University density data (Roberts et al., 2023) and reduced survey
area.
Although take by Level B harassment of North Atlantic right whales
has been proposed for authorization by NMFS, we anticipate a very low
level of harassment, should it occur, because Vineyard Northeast is
required to maintain a shutdown zone of 500 m if a North Atlantic right
whale is observed. The takes proposed for authorization account for any
missed animals wherein the survey equipment is not shut down
immediately. As shutdown would be called for immediately upon detection
(if the whale is within 500 m), it is likely the exposure time would be
very limited and received levels would not be much above the harassment
threshold. Further, the 500-m shutdown zone for right whales is
conservative, considering the distance to the Level B harassment
isopleth for the most impactful acoustic source (i.e., Applied
Acoustics AA251 Boomer--which may not be used on all survey days) is
estimated to be 178 m, and thereby minimizes the potential for
behavioral harassment of this species. As noted previously, Level A
harassment is not expected due to the small permanent threshold shift
(PTS) zones associated with HRG equipment types proposed for use. NMFS
does not anticipate North Atlantic right whale takes that would result
from Vineyard Northeast's activities would impact annual rates of
recruitment or survival. Thus, any takes that occur would not result in
population level impacts.
We also note that our findings for other species with active UMEs
that were previously described for the 2022 IHA (87 FR 52913, August
30, 2022) remain applicable to this project. In addition, our analysis
of survey effects on species with BIAs that overlap with the proposed
survey area remains unchanged. Therefore, in conclusion, there is no
new information suggesting that our analysis or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has preliminarily determined the following: (1) the
required mitigation measures would effect the least practicable impact
on marine mammal species or stocks and their habitat; (2) the proposed
authorized takes would have a negligible impact on the affected marine
mammal species or stocks; (3) the proposed authorized takes represent
small numbers of marine mammals relative to the affected stock
abundances; (4) Vineyard Northeast's activities would not have an
unmitigable adverse impact on taking for subsistence purposes as no
relevant subsistence uses of marine mammals are implicated by this
action, and (5) appropriate monitoring and reporting requirements are
included.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS OPR consults internally whenever we propose to authorize take for
endangered or threatened species.
NMFS is proposing to authorize the incidental take of five species
of marine mammals which are listed under the ESA, including the North
Atlantic right, fin, sei, blue, and sperm whale, and has determined
that this activity falls within the scope of activities analyzed in
NMFS GARFO's programmatic consultation regarding geophysical surveys
along the U.S. Atlantic coast in the three Atlantic Renewable Energy
Regions (completed June 29, 2021; revised September 2021).
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to Vineyard Northeast for conducting high-resolution
geophysical site characterization surveys offshore of Massachusetts to
southern New Jersey for a period of 1 year, provided the previously
mentioned mitigation, monitoring, and reporting requirements are
incorporated. A draft of the proposed IHA can be found at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.
Request for Public Comments
We request comment on our analyses (included in both this document
and the referenced documents supporting the 2022 IHA; Incidental Take
Authorization (ITA) application; issued IHA; and Federal Register
notices including 87 FR 30872, May 20, 2022; 87 FR 52913, August 30,
2022), the proposed authorization, and any other aspect of this notice
of proposed IHA for the proposed site characterization surveys. We also
request comment on the potential for renewal of this proposed IHA as
described in the paragraph below. Please include with your comments any
supporting data or literature citations to help inform our final
decision on the request for MMPA authorization.
On a case-by-case basis, NMFS may issue a one-time, 1-year renewal
IHA following notice to the public providing an additional 15 days for
public comments when (1) up to another year of identical or nearly
identical activities as described in the Description of the Proposed
Activity and Anticipated Impacts section of this notice is planned or
(2) the activities as described in the Description of the Proposed
Activity and Anticipated Impacts section of this notice would not be
completed by the time the IHA expires and a renewal would allow for
completion of the activities beyond that described in the Dates and
Duration section of this notice, provided all of the following
conditions are met:
<bullet> A request for renewal is received no later than 60 days
prior to the needed renewal IHA effective date (recognizing that the
renewal IHA expiration date cannot extend beyond 1 year from expiration
of the initial IHA);
<bullet> The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the
requested renewal IHA are identical to the activities analyzed under
the initial IHA, are a subset of the activities, or include changes so
minor (e.g., reduction in pile size) that the changes do not affect the
previous analyses, mitigation and monitoring requirements, or take
estimates (with the exception of reducing the type or amount of take);
(2) A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized; and
<bullet> Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
[[Page 40220]]
Dated: June 14, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-13118 Filed 6-20-23; 8:45 am]
BILLING CODE 3510-22-P
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