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Notice2024-11537

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off the Coast of Delaware

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Published

May 28, 2024

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

NMFS has received a request from Orsted Wind Power North America, LLC (Orsted), for an incidental harassment authorization (IHA) that is identical to an IHA previously issued to Orsted authorizing the take of marine mammals, by Level B harassment only, incidental to marine site characterization surveys conducted off the coast of Delaware in the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0482 and 0519 (Lease Areas), and the associated export cable route (ECR) area. The only changes from the previously issued IHAs involve the updated marine mammal population estimates, marine mammal density data, and take estimates, as well as the new effective dates for the IHA. Accordingly, pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to incidentally take marine mammals during 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 IHA would be valid for one year from the effective date.

Full Text

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<title>Federal Register, Volume 89 Issue 103 (Tuesday, May 28, 2024)</title>
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[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Notices]
[Pages 46073-46084]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11537]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD820]

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off the Coast of Delaware

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

[[Page 46074]]

Atmospheric Administration (NOAA), Commerce.

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

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SUMMARY: NMFS has received a request from Orsted Wind Power North
America, LLC (Orsted), for an incidental harassment authorization (IHA)
that is identical to an IHA previously issued to Orsted authorizing the
take of marine mammals, by Level B harassment only, incidental to
marine site characterization surveys conducted off the coast of
Delaware in the Bureau of Ocean Energy Management (BOEM) Commercial
Lease of Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS) Lease Area OCS-A 0482 and 0519 (Lease Areas),
and the associated export cable route (ECR) area. The only changes from
the previously issued IHAs involve the updated marine mammal population
estimates, marine mammal density data, and take estimates, as well as
the new effective dates for the IHA. Accordingly, pursuant to the
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to issue an IHA to incidentally take marine mammals during
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 IHA would be valid for one year from the
effective date.

DATES: Comments and information must be received no later than June 27,
2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written comments should be submitted
via email to <a href="/cdn-cgi/l/email-protection#8bc2dfdba5e8e7eefdeee5f8ffe2e5eecbe5e4eaeaa5ece4fd">[email&#160;protected]</a>. Electronic copies of the
original application, updated 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/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed below.
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. Attachments to comments will be
accepted in Microsoft Word or Excel or Adobe PDF file formats only. 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: Alyssa Clevenstine, 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. Relevant
definitions of MMPA statutory terms cited above are included in the
relevant sections below.

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 (incidental take authorizations with no
anticipated serious injury or mortality) of the Companion Manual for
NAO 216-6A, which do not individually or cumulatively have the
potential for significant impacts on the quality of the human
environment and for which we have not identified any extraordinary
circumstances that would preclude this categorical exclusion.
Accordingly, NMFS has preliminarily determined that the issuance of the
proposed IHA to Orsted qualifies to be categorically excluded from
further NEPA review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
IHA request.

History of Request

On October 1, 2021, Orsted, a limited liability company registered
in the State of Delaware, submitted a request on behalf of Garden State
Offshore Energy, LLC (Garden State) and Skipjack Offshore Energy, LLC
(Skipjack), both subsidiaries of Orsted and both registered in the
State of Delaware, for an IHA to take marine mammals incidental to
marine site characterization surveys off the coast of Delaware in OCS-A
0482 and 0519, and along potential ECRS to landfall locations in
Delaware and New Jersey. NMFS published a notice of the proposed IHA in
the Federal Register on March 21, 2022 (87 FR 15922). Subsequently, the
final notice of issuance of the IHA was published in the Federal
Register (87 FR 30182, May 18, 2022), announcing the effective dates of
that IHA were from May 10, 2022, through May 9, 2023 (2022 IHA). The
specified activities were expected to result in the take, by Level B
harassment, of 15 species (16 stocks) of marine mammals. The work was
expected to be completed within the 1-year timeframe of the IHA.
However, no work was completed under the original IHA.

[[Page 46075]]

On February 23, 2023, Orsted submitted a request that NMFS re-issue
the previously issued IHA with the only change being new effective
dates. NMFS published a notice of re-issuance of that IHA, announcing
effective dates of May 10, 2023, through May 9, 2024 (88 FR 30278, May
11, 2023) (2023 IHA). The specified activity, specific geographical
region, the type of equipment or survey activities, amount of take
requested by Orsted and later authorized by NMFS, as well as the
proposed mitigation, monitoring, and requirements remained
substantially unchanged from the 2022 IHA. Orsted completed a portion
of the survey work that was covered by the 2023 IHA and submitted a
preliminary monitoring report demonstrating that the required
mitigation and monitoring requirements were satisfied, no impacts of a
scale or nature not previously analyzed or authorized occurred as a
result of the activities conducted, and the IHA holder did not exceed
the authorized levels of take under that IHA (88 FR 30278, May 11,
2023).
On March 6, 2024, NMFS received a letter from Orsted requesting
renewal of the re-issued 2023 IHA (2024 request) to conduct the same
site characterization surveys within the same survey areas using the
same type of survey equipment that was previously analyzed under the
2022 IHA and re-issued 2023 IHA. While Orsted's planned activity would
ordinarily qualify for a renewal of the IHA, NMFS determined that a
renewal of the 2023 IHA is not appropriate because Duke University
Marine Geospatial Ecology Laboratory Habitat-based Marine Mammal
Density Models for the U.S. Atlantic was updated (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>), which NMFS determined represents
the best available scientific data and serves as the basis for updating
the estimated take numbers. Marine mammal density estimates in the
survey area (animals/km\2\) were obtained using the most recent model
results for all taxa (Roberts et al., 2023). The updated models
incorporate sighting data, including sightings from NOAA's Atlantic
Marine Assessment Program for Protected Species (AMAPPS) surveys. After
discussions with the applicant, NMFS received a revised request
incorporating the new information, which was deemed adequate and
complete on April 12, 2024. In evaluating the 2024 request, and where
applicable, NMFS relies on the information previously presented in
notices associated with issuance of the 2022 IHA (87 FR 15922, March
21, 2022; 87 FR 30182, May 18, 2022).

Description of the Proposed Activity and Anticipated Impacts

Overview

Orsted proposes to conduct marine site characterization surveys,
including high-resolution geophysical (HRG) surveys and geotechnical
surveys, in BOEM Lease Areas OCS-A 0482 and 0519, and the associated
ECRs. The purpose of the marine site characterization surveys is to
collect data concerning seabed (geophysical, geotechnical, and
geohazard), ecological, and archeological conditions within the
footprint of offshore wind facility development. Surveys are also
conducted to support engineering design and to map unexploded ordnance
(UXO). Underwater sound resulting from Orsted's proposed activities,
specifically HRG surveys, has the potential to result in incidental
take of 15 species (16 stocks) of marine mammals, in the form of Level
B harassment only. The proposed IHA would cover the same specified
activities previously described in its application for the 2022 IHA and
subsequent documents. NMFS refers the public to the documents and
supplemental materials related to the Federal Register notice of
proposed IHA (87 FR 15922; March 21, 2022), the notice of issuance of
the original 2022 IHA (87 FR 30182, May 18, 2022), and the notice of
re-issuance of the 2023 IHA (88 FR 30278, May 11, 2023). The
descriptions and analyses contained in those documents remain accurate
with the exception of the minor modifications described herein.

Dates and Duration

While the exact dates have not yet been established, the proposed
activities are planned to begin as soon as possible upon issuance of an
IHA. The duration of the proposed activity remains unchanged from the
2022 IHA and the re-issued 2023 IHA. The proposed activity is expected
to require up to 350 survey days across a maximum of three vessels
operating concurrently over the course of a single year (``survey day''
defined as a 24-hr activity period in which the assumed number of line
km are surveyed). The number of anticipated 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 travels 4
knots (kn) (7.4 kilometers per hour (km/hr) and surveys cover, on
average, 70 line km per 24-hr period.

Specific Geographic Region

The specific geographic region remains unchanged from the
previously issued 2022 IHA and re-issued 2023 IHA. The proposed
activities would occur within the Project Area, which includes the
Lease Areas and potential ECRs to landfall locations in Delaware
(figure 1). The combined Lease Areas OCS-A 0482 and 0519 are comprised
of approximately 568 square kilometers (km\2\) within the Wind Energy
Area of BOEM's Mid-Atlantic planning area and the overall Project Area,
including potential ECRs, is approximately 4,510 km\2\ (see figure 1).
Water depths in the Lease Areas range from approximately 15-40 meters
(m). Water depths within the ECR area extend from the shoreline (0 m
depth) to approximately 40 m.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN28MY24.000

BILLING CODE 3510-22-C

Detailed Description of the Action

A detailed description of the proposed specified activities can be
found in the previous Federal Register notices (87 FR 15922, March 21,
2022; 87 FR 30182, May 18, 2022) and related-supplemental documents.
The nature of the specified activities, including the types of HRG
equipment planned for use (CHIRPs, boomers, and sparkers), daily
trackline distances (70 line km per 24-hr period), and number of survey
vessels (up to three operating concurrently), are identical to those
described in the previous notices.

Description of Marine Mammals

A description of the marine mammals in the area of the specified
activities can

[[Page 46077]]

be found in the previous documents and notices for the 2022 IHA (87 FR
15922, March 21, 2022; 87 FR 30182, May 18, 2022), which remains
applicable to this proposed IHA. NMFS reviewed the most recent 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>), including
the 2023 draft SARs, 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 the new information does not
change our original analysis of impacts under the 2022 IHA.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al.,
2024). All values presented in table 1 are the most recent available at
the time of publication, including, as applicable, from the draft 2023
SARs. NMFS notes that since the issuance of the 2022 IHA, new SARs are
available for all species with the exception of humpback whale (Gulf of
Maine stock), bottlenose dolphin (Northern Migratory Coastal stock),
and harbor seal (Western North Atlantic stock). All new information is
provided in table 1 and updated density data (Roberts et al., 2023) are
incorporated into take estimations (see Sections 3 and 6 of the updated
application). Additionally, the new SARs data do not change our
analysis of impacts, as described under the 2022 IHA.
Additionally, on August 1, 2022, NMFS announced proposed changes to
the existing North Atlantic right whale (NARW) vessel speed regulations
(87 FR 46921, August 1, 2022) 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 UME. Should a final vessel speed rule be
issued and become effective during the effective period of this
authorization (or any other MMPA incidental take authorization), the
authorization holder will be required to comply with any and all
applicable requirements contained within the final vessel speed 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 will be required to comply with
the requirements of the vessel speed 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 will remain in place. The responsibility to
comply with the applicable requirements of any vessel speed rule will
become effective immediately upon the effective date of any final
vessel speed rule.

Table 1--Species and Stocks Likely Impacted by the Specified Activities \1\
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Stock abundance (CV,
Common name Scientific name Stock ESA/MMPA status; Nmin, most recent PBR Annual M/SI
strategic (Y/N) \2\ abundance survey) \3\ \4\
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Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
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Family Balaenidae:
North Atlantic Right Whale \5\. Eubalaena glacialis... Western Atlantic...... E, D, Y............... 340 (0, 337, 2021); 0.7 27.2
356 (346-363, 2022).
Family Balaenopteridae (rorquals):
Fin Whale...................... Balaenoptera physalus. Western N Atlantic.... E, D, Y............... 6,802 (0.24, 5,573, 11 2.05
2021).
Humpback Whale................. Megaptera novaeangliae Gulf of Maine......... -, -, N............... 1,396 (0, 1380, 2016). 22 12.15
Minke Whale.................... Balaenoptera Canadian Eastern -, -, N............... 21,968 (0.31, 17,002, 170 9.4
acutorostrata. Coastal. 2021).
Sei Whale...................... Balaenoptera borealis. Nova Scotia........... E, D, Y............... 6,292 (1.02, 3,098, 6.2 0.6
2021).
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Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm Whale.................... Physeter macrocephalus N Atlantic............ E, D, Y............... 5,895 (0.29, 4,639, 9.28 0.2
2021).
Family Delphinidae:
Long-Finned Pilot Whale........ Globicephala melas.... Western N Atlantic.... -, -, N............... 39,215 (0.30, 30,627, 306 5.7
2021).
Short-Finned Pilot Whale....... Globicephala Western N Atlantic.... -, -, Y............... 18,726 (0.33, 14,292, 143 218
macrorhynchus. 2021).
Atlantic Spotted Dolphin....... Stenella frontalis.... Western N Atlantic.... -, -, N............... 31,506 (0.28, 25,042, 250 0
2021).
Atlantic White-Sided Dolphin... Lagenorhynchus acutus. Western N Atlantic.... -, -, N............... 93,233 (0.71, 54,443, 544 28
2021).
Bottlenose Dolphin............. Tursiops truncatus.... Northern Migratory -, -, Y............... 6,639 (0.41, 4,759, 48 12.2-21.5
Coastal. 2016).
Bottlenose Dolphin............. Tursiops truncatus.... Western N Atlantic -, -, N............... 64,587 (0.24, 52,801, 507 28
Offshore. 2021).
Risso's Dolphin................ Grampus griseus....... Western N Atlantic.... -, -, N............... 44,067 (0.19, 30,662, 307 18
2021).
Common Dolphin................. Delphinus delphis..... Western N Atlantic.... -, -, N............... 93,100 (0.56, 59,897, 1,452 414
2021).
Family Phocoenidae (porpoises):
Harbor Porpoise................ Phocoena phocoena..... Gulf of Maine/Bay of -, -, N............... 85,765 (0.53, 56,420, 649 145
Fundy. 2021).
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Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):

[[Page 46078]]

Gray Seal \6\.................. Halichoerus grypus.... Western N Atlantic.... -, -, N............... 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harbor Seal.................... Phoca vitulina........ Western N Atlantic.... -, -, N............... 61,336 (0.08, 57,637, 1,729 339
2018).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2022)).
\2\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds potential biological removal (PBR) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future.
Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, vessel strike). Annual mortality or serious injury (M/SI) often cannot be determined precisely and is in some cases presented as
a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ Linden (2023) estimated the population size in 2022 as 356 individuals, with a 95 percent credible interval ranging from 346 to 363. NMFS
acknowledges this most recent estimation in addition to the 2023 draft SAR stock abundance estimate.
\6\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 394,311. The annual M/SI given is for the total stock.

Potential Effects on Marine Mammals and Their Habitat

A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the 2022 IHA (87 FR 15922, March 21, 2022; 87 FR 30182, May
18, 2022). At present, there is no new information on potential effects
that would change 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 15922, March 21, 2022; 87 FR 30182, May
18, 2022). The methods of estimating take are identical to those used
in the 2022 IHA. We have updated the marine mammal densities based on
new information (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 3 in
the 2024 IHA request from Orsted for specific density values used in
the analysis. The 2024 IHA request is 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>.
Due to limited data availability and difficulties identifying
individuals to species level during visual surveys, individual
densities are not able to be provided for all species and they are
instead grouped into ``guilds'' (Roberts et al., 2023). These guilds
include pilot whales and seals. Long- and short-finned pilot whales are
difficult to distinguish during shipboard surveys so individual habitat
models were not able to be developed and thus, densities are assumed to
apply to both species. Similarly, Roberts et al. (2023) produced
density models for all seals but did not differentiate by seal species.
Because the seasonality and habitat use by gray seals roughly overlaps
with that of harbor seals in the proposed survey areas, it was assumed
that the mean annual density could refer to either of the represented
species and was, therefore, divided equally between the two species.
Sperm whales--No takes were calculated for this species, but based
on NOAA's AMAPPS survey data and their distribution in the U.S.
Atlantic, there is potential they will occur in the survey area.
Therefore, Orsted is requesting authorization of a total of 2 takes for
this species based on the average group size of 1.68 rounded to the
nearest whole number from AMAPPS survey data.
Pilot whales--Only one take each was calculated for the pilot whale
species guild based on the Roberts et al. (2023) densities, but only
long-finned pilot whales are expected to occur in this project area due
to their more northerly distribution and association with colder water
when compared to short-finned pilot whales (Garrison and Rosel, 2017).
Orsted is requesting authorization of 8 takes, rounded from the average
group size of 8.2 for long-finned pilot whales presented in AMAPPS
survey data.
Common dolphin--A total of 98 takes were calculated for common
dolphins; however, based on available protected species observer (PSO)
data from preliminary monitoring in the survey area, and an average
group size of 30.2 based on AMAPPS survey data, it is likely that more
individuals could be encountered during the proposed survey activities.
Therefore, the requested takes have been increased using the total
number of encounters from past PSO reports for this area. The total
number of encounters for 2021, 2022, and 2023 were 18, 7, and 5 for
common dolphins or unidentified dolphins, respectively, which equates
to an average of 10 encounters (Gardline, 2021, Gardline, 2022, AIS,
2024). Orsted has requested authorization of 302 takes for this
species, based on an assumption that 10 groups with an average size of
30.2 will be encountered.
Atlantic spotted dolphins--Only 6 takes were calculated for this
species, but based on AMAPPS survey data the average group size is
24.2, which equates to a total of 24 takes Orsted is requesting be
authorized for this species.
Risso's dolphins--Only 1 take was calculated for this species, but
based on AMAPPS survey data the average group size is 7.28, which
equates to a total of 7 takes Orsted is requesting be authorized for
this species.
Bottlenose dolphins--There are two bottlenose dolphin stocks that
could occur in the Project Area: The Western North Atlantic (WNA)
Offshore stock and WNA Northern Migratory Coastal stock. For bottlenose
dolphin densities, Roberts et al. (2023) does not differentiate by
individual stock. The WNA Offshore stock is assumed to be located in
depths exceeding the 20 m isobath, while the WNA Northern Migratory
Coastal stock is assumed to be found in shallower depths than the 20 m
isobath north of Cape Hatteras (Reeves et al., 2002, Waring et al.,
2016). The maximum potential Level B harassment takes calculated for
each stock of bottlenose dolphins are based on the full survey duration
occurring inside or outside the 20 m isobath; however only a portion of
the survey will occur in each area. At this time, Orsted does not know
the exact number of survey days that may occur within each area, and
could not differentiate the maximum number of calculated instances of
take (4,118 calculated) between the two stocks of bottlenose

[[Page 46079]]

dolphins potentially present during the proposed survey activities.
Orsted therefore requested, and NMFS proposes to authorize, 4,118
instances of take of bottlenose dolphins, regardless of stock. Given
the uncertainty regarding the number of days Orsted's survey may be
within the 20 m isobath, the authorization of 4,118 instances of take
by Level B harassment is not allocated to a specific stock but rather
could be of either stock.
The take NMFS proposes for authorization can be found in table 2,
below. Table 2 presents the results of Orsted's updated density-based
calculations for the Project Area. For comparative purposes, we have
provided the 2022 IHA authorized take (87 FR 30182, May 18, 2022). No
take by Level A harassment is anticipated. Therefore, NMFS has not
proposed to authorized any take by Level A harassment. Mortality or
serious injury (M/SI) is neither anticipated nor proposed to be
authorized.

Table 2--Estimated Take Numbers and Total Take Proposed for Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
Take Total Estimated take
Estimated authorized Total estimated take as a
Common name Stock abundance under previous calculated proposed for percentage of
2023 IHA take authorization population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic Right Whale................ Western Atlantic............ 340 11 4 4 1.18
Fin Whale................................. Western N Atlantic.......... 6,802 7 6 6 <1
Humpback Whale............................ Gulf of Maine............... 1,396 4 5 5 <1
Minke Whale............................... Canadian Eastern Coastal.... 21,968 2 10 10 <1
Sei Whale................................. Nova Scotia................. 6,292 1 1 1 <1
Sperm Whale............................... N Atlantic.................. 5,895 3 0 \a\ 2 <1
Long-Finned Pilot Whale................... Western N Atlantic.......... 39,215 20 1 \a\ 8 <1
Atlantic Spotted Dolphin.................. Western N Atlantic.......... 31,506 15 6 \a\ 24 <1
Atlantic White-Sided Dolphin.............. Western N Atlantic.......... 93,233 50 16 16 <1
Bottlenose Dolphin \b\.................... Northern Migratory Coastal.. 6,639 2,752 4,118 \c\ 4,118 62.0
Bottlenose Dolphin \b\.................... Western N Atlantic Offshore. 64,587 2,752 4,118 \c\ . . . <7
Risso's Dolphin........................... Western N Atlantic.......... 44,067 20 1 \a\ 7 <1
Common Dolphin............................ Western N Atlantic.......... 93,100 400 98 \a\ 302 <1
Harbor Porpoise........................... Gulf of Maine/Bay of Fundy.. 85,765 82 79 79 <1
Gray Seal................................. Western N Atlantic.......... 27,911 4 13 \d\ 13 <1
Harbor Seal............................... Western N Atlantic.......... 61,336 4 13 \a\ 13 <1
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Adjustments to the requested take numbers for the marked species are based on the average group size from AMAPPS survey data (NEFSC, 2023) and
recommended values represent averages of all AMAPPS sightings, for species for which the calculated take was lower than the estimated group size,
except common dolphins. For common dolphins, the AMAPPS group size was used in conjunction with the number of encounters of common dolphin groups in
past PSO reports.
\b\ Take estimate is based on the maximum number of calculated instances of take for either stock and is assumed to apply to all bottlenose dolphins
potentially present in the survey area. Therefore, takes could consist of individuals from either the WNA Offshore or the WNA Northern Migratory
Coastal stock.
\c\ Although unlikely, for purposes of calculating maximum percentage of population, we assume all takes could be allocated to either stock (i.e., total
estimated take for ``bottlenose dolphins'' is 4,118) and that multiple repeated takes of the same individuals from each stock may occur. Please see
Preliminary Determinations for additional information.
\d\ Roberts et al. (2023) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to occur
equally in the survey area; therefore, density values were split evenly between the two species, i.e., total estimated take for ``seals'' is 13.

Description of Proposed Mitigation, Monitoring, and Reporting Measures

The proposed mitigation measures, and proposed monitoring and
reporting requirements are identical to those included in the Federal
Register notice announcing the final 2022 IHA (87 FR 30182, May 18,
2022), and the discussion of the least practicable adverse impact
included in that document remains accurate. The measures proposed for
inclusion in this authorization are found below.

Proposed Mitigation

The following mitigation measures will be implemented during
Orsted's marine site characterization surveys. Pursuant to section 7 of
the ESA, Orsted will also be required to adhere to relevant Project
Design Criteria (PDC) of the NMFS Greater Atlantic Regional Office
(GARFO) programmatic consultation (specifically PDCs 4, 5, and 7)
regarding geophysical surveys along the U.S. Atlantic coast (see 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>).

Marine Mammal Exclusion Zones and Harassment Zones

Marine mammal exclusion zones (EZs) will be established around the
HRG survey equipment and monitored by NMFS-approved PSOs:
<bullet> 500 m EZ for NARWs during operation of specified acoustic
sources (e.g., sparkers, boomers); and
<bullet> 100 m EZ for all other marine mammals, with certain
exceptions (see Shutdown Procedures), during operation of specified
acoustic sources (e.g., sparkers, boomers).
If a marine mammal is detected approaching or entering the EZs
during the HRG survey, the vessel operator will adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
These stated requirements will be included in the site-specific
training to be provided to the survey team. The Level B harassment
zones for each sound source are listed in table 3 and remain the same
as the initial IHA (see table 4 of the Federal Register notice of the
final authorization (87 FR 30182, May 18, 2022)).

Table 3--Level B Harassment Zones
------------------------------------------------------------------------
Distance to
Level B
Equipment harassment
threshold (m)
------------------------------------------------------------------------
ET 216 CHIRP............................................ 9
ET 424 CHIRP............................................ 4
ET 512i CHIRP........................................... 6
GeoPulse 5430........................................... 21
TB CHIRP III............................................ 48
Pangeo SBI.............................................. 22
AA Triple plate S-Boom (700/1,000 J).................... 34
AA, Dura-spark UHD Sparkers............................. 141
GeoMarine Sparkers...................................... 141
------------------------------------------------------------------------
Note: AA = Applied Acoustics; CHIRP = compressed high-intensity radiated
pulses; ET = edgetech; J = joule; SBI = sub-bottom imager; TB =
Teledyne benthos; UHD = ultra-high definition.

[[Page 46080]]

Pre-Start Clearance

Marine mammal clearance zones will be established around the HRG
survey equipment and monitored by PSOs:
<bullet> 500 m for all ESA-listed marine mammals; and
<bullet> 100 m for all other marine mammals.
Orsted will 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 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 EZ or until an additional time period
has elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and pinnipeds, 30 minutes for all other species).

Ramp-Up of Survey Equipment

A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
acoustic source when technically feasible. The ramp-up procedure will
be used at the beginning of HRG survey activities in order to provide
additional protection to marine mammals near the survey area by
allowing them to vacate the area prior to the commencement of survey
equipment operation at full power. Operators should ramp-up sources to
half power for 5 minutes and then proceed to full power.
Ramp-up activities will be delayed if a marine mammal(s) enters its
respective EZ. Ramp-up will resume if the animal has been observed
exiting its respective EZ or until an additional time period has
elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and pinnipeds, 30 minutes for all other species).
Ramp-up may occur at times of poor visibility, including nighttime,
if appropriate visual monitoring has occurred with no detections of
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic
source activation may only occur at night where operational planning
cannot reasonably avoid such circumstances.

Shutdown Procedures

An immediate shutdown of the impulsive HRG survey equipment (i.e.,
sparkers, boomers) will be required if a marine mammal is sighted
entering or is within its respective EZ. The vessel operator must
comply immediately with any call for shutdown by the Lead PSO. Any
disagreement between the Lead PSO and vessel operator should be
discussed only after shutdown has occurred. Subsequent restart of the
survey equipment can be initiated if the animal has been observed
exiting its respective EZ or until an additional time period has
elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and pinnipeds, 30 minutes for all other species).
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorization
number of takes have been met, approaches or is observed within the
Level B harassment zone, shutdown must occur.
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 EZs. If the acoustic source is shut down for a period
longer than 30 minutes, then pre-clearance and ramp-up procedures will
be initiated as described in the previous section.
The shutdown requirement will be waived for pinnipeds and for small
delphinids of the following genera: Delphinus, Lagenorhynchus,
Stenella, and Tursiops. Specifically, if a delphinid from the specified
genera or a pinniped is visually detected approaching the vessel (i.e.,
to bow ride) or towed equipment, shutdown is not required. Furthermore,
if there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived), PSOs must use best
professional judgment in making the decision to call for a shutdown.
Additionally, shutdown is required if a delphinid or pinniped is
detected in the EZ and belongs to a genus other than those specified.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., side-scan sonar, echosounders) other than non-parametric sub-
bottom profilers (e.g., CHIRPs).

Vessel Strike Avoidance

Orsted must adhere to the following measures except in the case
where compliance will create an imminent and serious threat to a person
or vessel or to the extent that a vessel is restricted in its ability
to maneuver and, because of the restriction, cannot comply:
<bullet> Vessel operators and crews must maintain a vigilant watch
for all marine mammals and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any marine mammal. A visual observer aboard the vessel must monitor a
vessel strike avoidance zone based on the appropriate separation
distance around the vessel. Visual observers monitoring the vessel
strike avoidance zone may be third-party observers (i.e., PSOs) or crew
members, but crew members responsible for these duties must be provided
sufficient training to (1) distinguish protected species from other
phenomena, and (2) broadly identify a marine mammal as a right whale,
other whale (defined in this context as sperm whales or baleen whales
other than right whales), or other marine mammal;
<bullet> All survey vessels, regardless of size, must observe a 10
kn (18.5 km/hr) speed restriction in specified areas designated by NMFS
for the protection of NARWs from vessel strikes. These specified areas
include all seasonal management areas (SMA) established under 50 CFR
224.105 (when in effect), any dynamic management areas (DMA) (when in
effect), and Slow Zones. See: <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales</a> for specific detail regarding these areas;
<bullet> All vessels must reduce speed to 10 kn (18.5 km/hr) or
less when mother/calf pairs, pods, or large assemblages of cetaceans
are observed near a vessel.
<bullet> All vessels must maintain a minimum separation distance of
500 m from right whales and other ESA-listed large whales;
[cir] If an ESA-listed species is sighted within the relevant
separation distance, the vessel must steer a course away at 10-kn (18.5
km/hr) or less until the 500-m separation distance has been
established. If a whale is observed but cannot be confirmed as a
species that is not ESA-listed, the vessel operator must assume that it
is an ESA-listed species and take appropriate action.
<bullet> All vessels must maintain a minimum separation distance of
100 m from non-ESA-listed baleen whales;
<bullet> All vessels 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); and
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel

[[Page 46081]]

shall take action as necessary to avoid violating the relevant
separation distance (e.g., attempt to remain parallel to the animal's
course, avoid excessive speed or abrupt changes in direction until the
animal has left the area).
[cir] If marine mammals are sighted within the relevant separation
distance, the vessel must reduce speed and shift the engine to neutral,
not engaging the engines until animals are clear of the area. This does
not apply to any vessel towing gear or any vessel that is
navigationally constrained.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered to by NMFS, NMFS has preliminarily
determined that the mitigation measures provide the means of effective
the least practicable impact on marine mammal species or stocks and
their habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance.

Proposed Monitoring and Reporting

Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Orsted will employ
independent, dedicated, trained PSOs, meaning that the PSOs must (1) be
employed by a third-party observer provider, (2) have no tasks other
than to conduct observational effort, collect data, and communicate
with and instruct relevant vessel crew with regard to the presence of
marine mammals and mitigation requirements (including brief alerts
regarding maritime hazards), and (3) have successfully completed an
approved PSO training course appropriate for their designated task. On
a case-by-case basis, trained crew members may be approved by NMFS for
limited, specified duties in support of approved, independent PSOs on
smaller vessels with limited crew operating in nearshore waters.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including EZs, during all HRG survey operations. PSOs will
visually monitor and identify marine mammals, including those
approaching or entering the established EZs during survey activities.
It will be the responsibility of the Lead PSO on duty to communicate
the presence of marine mammals as well as to communicate the action(s)
that are necessary to ensure mitigation and monitoring requirements are
implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) will ensure 360 degree visual coverage around
the vessel from the most appropriate observation posts and will conduct
visual observations using binoculars and/or night vision goggles and
the naked eye while free from distractions and in a consistent,
systematic, and diligent manner. PSOs may be on watch for a maximum of
4 consecutive hours followed by a break of at least 2 hours between
watches and may conduct a maximum of 12 hours of observations per 24-hr
period. In cases where multiple vessels are surveying concurrently, any
observations of marine mammals will be communicated to PSOs on all
nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to EZs. Reticulated binoculars must also be available to PSOs
for use as appropriate based on conditions and visibility to support
the sighting and monitoring of marine mammals. During nighttime
operations, night-vision goggles with thermal clip-ons and infrared
technology will be used. Position data will be recorded using hand-held
or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs will also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard any vessel associated with the survey will be relayed to
the PSO team. Data on all PSO observations will be recorded based on
standard PSO collection requirements. This will include dates, times,
and locations of survey operations; dates and times of observations,
location and weather, details of marine mammal sightings (e.g.,
species, numbers, behaviors); and details of any observed marine mammal
behavior that occurs (e.g., notes behavioral disturbances).
Orsted must consult NMFS NARW reporting system and Whale Alert,
daily and as able, for the presence of NARWs throughout survey
operations, and for the establishment of a DMA. If NMFS should
establish a DMA in the Lease Areas during the survey, the vessels will
abide by speed restrictions in the DMA.
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a draft comprehensive report will
be provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys including what type of mitigation and the species and number of
animals that prompted the mitigation action, when known), and provides
an interpretation of the results and effectiveness of all mitigation
and monitoring. Any recommendations made by NMFS must be addressed in
the final report prior to acceptance by NMFS. A final report must be
submitted within 30 days following any comments on the draft report.
All draft and final marine mammal and acoustic monitoring reports must
be submitted to <a href="/cdn-cgi/l/email-protection#df8f8df1968b8ff192b0b1b6abb0adb6b1b88dbaafb0adabac9fb1b0bebef1b8b0a9">[email&#160;protected]</a> and
<a href="/cdn-cgi/l/email-protection#c58c9195eba6a9a0b3a0abb6b1acaba085abaaa4a4eba2aab3">[email&#160;protected]</a>. The report must contain at minimum, the
following:
<bullet> PSO names and affiliations;
<bullet> Dates of departures and returns to port with port names;
<bullet> Dates and times (Greenwich Mean Time (GMT)) of survey
effort and times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, BSS, Beaufort wind
force, swell height, weather conditions, cloud cover, sun glare, and
overall visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions); and

[[Page 46082]]

<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
<bullet> Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
<bullet> PSO who sighted the animal;
<bullet> Time of sighting;
<bullet> Vessel location at time of sighting;
<bullet> Water depth;
<bullet> Direction of vessel's travel (compass direction);
<bullet> Direction of animal's travel relative to the vessel;
<bullet> Pace of the animal;
<bullet> Estimated distance to the animal and its heading relative
to vessel at initial sighting;
<bullet> Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also note the composition
of the group if there is a mix of species;
<bullet> Estimated number of animals (high/low/best);
<bullet> Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
<bullet> Description (as many distinguishing features as possible
of each individual seen, including length, shape, color, pattern, scars
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
<bullet> Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a NARW is observed at any time by PSOs or personnel on any
project vessels, during surveys or during vessel transit, Orsted must
report the sighting information to the NMFS NARW Sighting Advisory
System (866-755-6622) within 2 hours of occurrence, when practicable,
or no later than 24 hours after occurrence. NARW sightings in any
location may also be reported to the U.S. Coast Guard via channel 16
and through the WhaleAlert app (<a href="http://www.whalealert.org/">http://www.whalealert.org/</a>).
In the event that Orsted personnel discover an injured or dead
marine mammal, Orsted will report the incident to the NMFS Office of
Protected Resources (OPR) and the NMFS New England/Mid-Atlantic
Stranding Coordinator as soon as feasible. The report will include the
following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
In the unanticipated event of a vessel strike of a marine mammal by
any vessel involved in these activities covered by the IHA, Orsted will
report the incident to NMFS by phone (866-755-6622) and by email
(<a href="/cdn-cgi/l/email-protection#d1bfbcb7a2ffb6b0a3ffb8bfb2b8b5b4bfa5b0bdfca5b0bab491bfbeb0b0ffb6bea7">[email&#160;protected]</a> and
<a href="/cdn-cgi/l/email-protection#376765197e6367197a58595e4358455e595065524758454344775958565619505841">[email&#160;protected]</a>) as soon as feasible. The report will
include the following information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Vessel's speed during and leading up to the incident;
<bullet> Vessel's course/heading and what operations were being
conducted (if applicable);
<bullet> Status of all sound sources in use;
<bullet> Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
<bullet> Environmental conditions (e.g., wind speed and direction,
BSS, cloud cover, visibility) immediately preceding the strike;
<bullet> Estimated size and length of animal that was struck;
<bullet> Description of the behavior of the marine mammal
immediately preceding and following the strike;
<bullet> If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
<bullet> Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
<bullet> To the extent practicable, photographs or video footage of
the animal(s).

Preliminary Determinations

Orsted's HRG survey activities are unchanged from those analyzed in
support of the 2022 IHA. When issuing the 2022 IHA (87 FR 30182, May
18, 2022) and 2023 reissuance of that IHA, NMFS found Orsted's proposed
HRG surveys would have a negligible impact to species or stocks' annual
rates of recruitment and survival, and the amount of taking would be
small relative to the population size of such species or stocks.
Additionally, the potential effects of the activities, taking into
consideration the proposed mitigation and related monitoring measures,
are identical to those calculated in support of the 2022 IHA. NMFS
expects that all potential takes would be short-term Level B behavioral
harassment, predominantly in the form of avoidance of the sound sources
that may cause a temporary abandonment of the location during active
use of acoustic sources that may result in a temporary interruption of
foraging activities for some species (if such activity was occurring),
reactions that are considered to be of low severity and with no lasting
biological consequences (e.g., Southall et al., 2007). NMFS does not
expect that the proposed activity will have long-term or permanent
impacts as the acoustic sources would be mobile and would leave the
area within a specific amount of time for which the animals could
return to the area.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be temporarily displaced
during survey activities are expected to be able to resume foraging
once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, the impacts to marine mammals and the food sources
that they utilize are not expected to cause significant or long-term
consequences for individual marine mammals or their populations. Even
considering the increased estimated take for some species, 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.

[[Page 46083]]

In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141 m from use of sparkers. 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 reduced
acoustic harassment zones (see tables 1 and 4 in the previous Federal
Register notices (87 FR 15922, March 21, 2022; 87 FR 30182, May 18,
2022)), producing expected effects of particularly low severity. The
ensonified area surrounding each vessel is extremely small compared to
the overall distribution of the animals in the area and the available
habitat.
As previously discussed in the 2022 IHA (87 FR 15922, March 21,
2022; 87 FR 30182, May 18, 2022), impacts from the survey are expected
to be localized to the specific area of activity and only during
periods when Orsted'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. The survey area lies
significantly south (over 250 miles (402 km)) of where Biologically
Important Areas are defined for fin and humpback whales. There is no
designated critical habitat for any marine mammals listed under the
Endangered Species Act (ESA) in the survey area.
There is a slight increase in estimated take for 5 species
(humpback whale, minke whale, Atlantic spotted dolphin, gray seal,
harbor seal) relative to those authorized under the 2022 IHA but the
total amount of takes proposed for authorization are small (less than 1
percent) relative to estimated population size of each species or
stock. Additionally, due to updated information in the draft 2023 SAR
on the stock abundance of the WNA stock of common dolphins, there is a
minor increase in the estimated take as a percentage of that stock,
however, that also results in estimated take of less than 1 percent of
the population. Even considering the increased estimated take for 5
species, 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 are expected to result. Overall, the total amount of takes
proposed for authorization are small (less than 1 percent) relative to
estimated population size of each species or stock (less than 1 percent
for 13 species; less than 2 percent for NARW; less than 7 percent for
the WNA Offshore stock of bottlenose dolphin) except for the WNA
Migratory Coastal stock of bottlenose dolphin (62 percent). The values
presented in table 2 are likely conservative estimates as they assume
all takes are of different individual animals which is likely not to be
the case. Some individuals may return multiple times in a day, but PSOs
will count them as separate takes if they cannot be individually
identified. This is the particularly the case for bottlenose dolphins.
Given the uncertainty regarding the number of days Orsted's survey may
be within the 20 m isobath, the authorization of 4,118 instances of
take by Level B harassment is not allocated to a specific stock but
rather could be of either stock. However, based on the expansive ranges
of both bottlenose dolphin stocks and the stocks' respective occurrence
in the area, it is unlikely that large segments of either stock would
consistently remain in the survey area. Considering this and various
factors as described in the previous Federal Register notices (87 FR
15922, March 21, 2022; 87 FR 30182, May 18, 2022), we have determined
that the number of individuals taken will comprise of less than one-
third of the best available population abundance estimate of either
stock.
Orsted's proposed activities would occur in a small fraction of the
migratory corridor for NARW and impacts are expected to be limited to
low levels of behavioral harassment, resulting in temporary and minor
behavioral changes during any brief period of exposure. The size of the
Project Area (approximately 4,510 km\2\) in comparison with the entire
migratory habitat for the NARW (Biologically Important Area of 269,448
km\2\) is small, representing 1.67 percent of the entire migratory
corridor. Because of this, and in context of the minor, low-level
nature of the impacts expected to result from the planned survey, such
impacts are not expected to result in disruption to biologically
important behaviors.
Given the transitory nature of NARW in this area and due to the
lack of year-round ``core'' NARW foraging habitat (Oleson et al., 2020)
(such habitat is located further north in the southern area of Martha's
Vineyard and Nantucket Islands where both visual and acoustic
detections of NARW indicate a nearly year-round presence (Oleson et
al., 2020)), it is unlikely for any exposure to cause chronic effects
as any exposure would be short and intermittent. Furthermore, given the
small size of the Level B harassment zones (141 m) and the robust suite
of mitigation and monitoring measures proposed by NMFS, with specific
note on the mitigation zones for NARW (EZ; 500 m), NMFS does not expect
adverse impacts on this species. Lastly, NMFS notes the reduction in
requested take from the 2022 IHA (87 FR 15922, March 21, 2022; 87 FR
30182, May 18, 2022) due to the revised density data (Roberts et al.,
2023). Under the 2022 IHA, NMFS authorized 11 instances of take for
NARW. Here, NMFS is proposing only 4 takes by Level B harassment
representing less than 2 percent of the overall species abundance.
Given the updates to the density for this species, in particular during
the periods where project activities are expected to be ongoing, NMFS
expects low-level impacts (e.g., temporary avoidance of the area) from
this proposed project on NARW.
We also note that our findings for other species with active UMEs
or species where biologically important areas or haul-outs have been
previously described in the Federal Register notices associated with
issuance of the 2022 IHA remain applicable to this project. 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 will effect the least practicable impact
on marine mammal species or stocks and their habitat; (2) the proposed
authorized takes will 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) Orsted'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 ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency insure that any action it authorizes,
funds, or carries out is not likely to jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat. To
ensure ESA compliance for the issuance of IHAs, NMFS consults
internally whenever we propose to authorize take for endangered or
threatened species.
NMFS is proposing to authorize the incidental take of four species
of marine mammals which are listed under the ESA, the North Atlantic
right, fin, sei,

[[Page 46084]]

and sperm whale, and has preliminarily determined that this activity
falls within the scope of activities analyzed in NMFS Greater Atlantic
Regional Fisheries Office'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 Orsted for conducting marine site characterization
surveys off the coast of Delaware 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), the proposed
authorization, and any other aspect of this notice of proposed IHA for
the proposed marine 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, 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.
<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.

Dated: May 21, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-11537 Filed 5-24-24; 8:45 am]
BILLING CODE 3510-22-P

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