Notice2024-13328
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
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Published
June 18, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from Vineyard Northeast, LLC (Vineyard Northeast) for the renewal of their currently active incidental harassment authorization (IHA) (hereafter, the "Project") 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. The proposed action is a subset of the survey efforts that were previously authorized but were not yet completed under the currently active IHA, which will soon expire. Pursuant to the Marine Mammal Protection Act, prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The renewal requirements have been satisfied, and NMFS is now providing an additional 15-day public comment period to allow for any additional comments on the proposed renewal not previously provided during the initial 30-day comment period.
Full Text
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<title>Federal Register, Volume 89 Issue 118 (Tuesday, June 18, 2024)</title>
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[Federal Register Volume 89, Number 118 (Tuesday, June 18, 2024)]
[Notices]
[Pages 51501-51508]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13328]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD978]
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; request for comments on proposed renewal incidental
harassment authorization (IHA).
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SUMMARY: NMFS received a request from Vineyard Northeast, LLC (Vineyard
Northeast) for the renewal of their currently active incidental
harassment authorization (IHA) (hereafter, the ``Project'') 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
[[Page 51502]]
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. The proposed action is a subset of the survey efforts
that were previously authorized but were not yet completed under the
currently active IHA, which will soon expire. Pursuant to the Marine
Mammal Protection Act, prior to issuing the currently active IHA, NMFS
requested comments on both the proposed IHA and the potential for
renewing the initial authorization if certain requirements were
satisfied. The renewal requirements have been satisfied, and NMFS is
now providing an additional 15-day public comment period to allow for
any additional comments on the proposed renewal not previously provided
during the initial 30-day comment period.
DATES: Comments and information must be received no later than July 3,
2024.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service and should be submitted via email to
<a href="/cdn-cgi/l/email-protection#e1a8b5b1cfb580988d8e93a18f8e8080cf868e97"><span class="__cf_email__" data-cfemail="eca5b8bcc2b88d9580839eac82838d8dc28b839a">[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 Marine Mammal Protection Act (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, an incidental harassment authorization is issued.
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 here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed 1 year for each reauthorization. In the notice of proposed IHA
for the initial IHA, NMFS described the circumstances under which we
would consider issuing a renewal for this activity, and requested
public comment on a potential renewal under those circumstances.
Specifically, on a case-by-case basis, NMFS may issue a 1-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 Detailed Description
of Specified Activities section of the initial IHA issuance notice is
planned or (2) the activities as described in the Description of the
Specified Activities and Anticipated Impacts section of the initial IHA
issuance notice would not be completed by the time the initial IHA
expires and a renewal would allow for completion of the activities
beyond that described in the DATES section of the notice of issuance of
the initial IHA, provided all of the following conditions are met:
1. 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).
2. The request for renewal must include the following:
<bullet> 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., reduced effort) 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).
<bullet> 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.
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.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed renewal. A description of the renewal process
may be found on our website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. Any
comments received on the potential renewal, along with relevant
comments on the initial IHA, have been considered in the development of
this proposed IHA renewal, and a summary of agency responses to
applicable comments is included in this notice. NMFS will consider any
additional public comments prior to making any final decision on the
issuance of the requested renewal, and agency responses will be
summarized in the final notice of our decision.
National Environmental Policy Act
This action is consistent with categories of activities identified
in
[[Page 51503]]
Categorical Exclusion B4 (incidental take authorizations 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 determined that the issuance of the
initial IHA qualified to be categorically excluded from further NEPA
review. NMFS has preliminarily determined that the application of this
categorical exclusion remains appropriate for this renewal IHA.
History of Request
On July 27, 2022, NMFS issued an IHA (hereafter, referred to as the
2022 IHA) to Vineyard Northeast to take marine mammals incidental to
marine site characterization surveys offshore from Massachusetts to New
Jersey, in the BOEM Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas)
and potential OECC routes to landfall locations, effective from July
27, 2022 through July 26, 2023 (87 FR 52913, August 30, 2022). On April
23, 2023, NMFS received a request from Vineyard Northeast to issue an
IHA to take marine mammals incidental to continued marine site
characterization surveys offshore from Massachusetts to New Jersey, in
the BOEM Lease Areas and potential OECC routes. Although the IHA
renewal requirements were otherwise satisfied, NMFS determined that the
availability of updated marine mammal density data (Roberts et al.,
2023), upon which the take estimates were based, for all species in the
Project Area warranted updated analysis and, therefore, the issuance of
a new IHA (hereafter, referred to as the 2023 IHA) instead of a renewal
IHA, as described in the Federal Register notice for the proposed 2023
IHA (88 FR 40212, June 21, 2023). The 2023 IHA, i.e. the initial IHA,
which is here proposed for renewal, was issued to Vineyard Northeast
with effective dates of July 27, 2023 through July 26, 2024 (88 FR
50117, August 1, 2023). Due to unanticipated delays, Vineyard Northeast
will not be able to complete the surveys before the expiration date.
Accordingly, on April 29, 2024, NMFS received a request from
Vineyard Northeast for the renewal of the 2023 IHA. The activities for
which incidental take is requested consist of a subset of the identical
activities covered in the 2023 IHA. As required, Vineyard Northeast
also provided a preliminary monitoring report, which demonstrates that
they have implemented the required marine mammal mitigation and
monitoring and did not exceed the levels of take authorized under the
previously issued IHA (88 FR 50117, August 1, 2023). 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>.
Description of the Proposed Specified Activity and Anticipated Impacts
Vineyard Northeast's 2023 IHA authorized take of marine mammals
incidental to marine site characterization surveys, including high-
resolution geophysical (HRG) surveys, offshore from Massachusetts to
southern New Jersey, specifically within the BOEM Lease Areas OCS-A
0522 and OCS-A 0544, and along potential submarine OECCs. The purpose
of these surveys are 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. While actively surveying, the
vessel operates at a maximum speed of 4 knots (4.6 miles per hour (mph)
or 7.4 km per hour (km/h)). The Vineyard Northeast's 2023 IHA survey
plan included 37,360 km of track line over 467 survey days. However, in
2023, Vineyard Northeast completed only 860 km of track line over 11
survey days, representing approximately 2 percent of the total planned
survey effort.
Under the requested renewal IHA, Vineyard Northeast is proposing to
continue to conduct survey activities over the remaining approximately
36,500 km of track line that was not completed in 2023. These surveys
would be conducted over up to approximately 456 survey days using a
maximum of 4 vessels operating concurrently within the Lease Areas and
OECCs. 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 is 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 track
line per 24 hours of operations.
The potential impacts of Vineyard Northeast's proposed activities
on marine mammals could involve acoustic stressors and are unchanged
from the impacts described in the Federal Register notice for the
proposed 2023 IHA (88 FR 40212, June 21, 2023), which relies upon
information in the notice of the proposed 2022 IHA (87 FR 30872, May
20, 2022). 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 only, in the specified
geographic region.
This proposed renewal IHA is for the remainder of work that will
not be completed by the expiration date of the 2023 IHA. The renewal
IHA would authorize incidental take, by Level B harassment only of 19
species (comprising 20 stocks) of marine mammals for a subset of marine
site characterization survey activities to be completed in 1 year, in
the same area, using survey methods identical to those conducted under
the 2023 IHA. 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. Therefore, the anticipated
effects on marine mammals and the affected stocks also remain the same.
All mitigation, monitoring, and reporting measures would remain exactly
as described in the Federal Register notice for the issued 2023 IHA (88
FR 50117, August 1, 2023) and the notice of the proposed 2022 IHA (87
FR 52913, August 30, 2022).
Detailed Description of the Proposed Action
A summary description of the marine site characterization survey
activities for which incidental take is proposed here may be found in
the Federal Register notice for the proposed 2023 IHA (88 FR 40212,
June 21, 2023), which relies upon information in the notice of the
proposed 2022 IHA (87 FR 30872, May 20, 2022). The specific geographic
region and specified activities, including the types of survey
equipment and number of survey vessels planned for use, are identical
to those described in the previous notices, with the exception of the
reduction in the size of the proposed survey area since a small subset
of the survey work authorized under the 2022 IHA was completed. The
proposed renewal would be effective for a period not exceeding 1 year
from the date of expiration of the 2023 IHA.
[[Page 51504]]
Description of Marine Mammals
A description of the marine mammals in the proposed survey area may
be found in the Federal Register notice for the proposed 2023 IHA (88
FR 40212, June 21, 2023), which relies upon information in the notice
of the proposed 2022 IHA (87 FR 30872, May 20, 2022). After the 2023
IHA was issued, NMFS released its draft 2023 stock assessment reports
(SARs). NMFS has reviewed the draft 2023 SARs, which included updates
to certain stock abundances estimates, information on relevant unusual
mortality events (UME), and other scientific literature. The draft 2023
SAR updated the population estimate (N<INF>best</INF>) of North
Atlantic right whales from 338 to 340 and annual mortality and serious
injury from 31.2 to 27.2. The updated population estimate in the draft
2023 SAR is based upon sighting history through December 2021 (89 FR
5495, January 29, 2024). Total annual average observed North Atlantic
right whale mortality during the period 2017-2021 was 7.1 animals and
annual average observed fishery mortality was 4.6 animals, however,
estimates of 27.2 total mortality and 17.6 fishery mortality account
for undetected mortality and serious injury (89 FR 5495, January 29,
2024). In October 2023, NMFS released a technical report identifying
that the North Atlantic right whale population size based on sighting
history through 2022 was 356 whales, with a 95 percent credible
interval ranging from 346 to 363 (Linden, 2023). NMFS conservatively
relies on the lower SAR abundance estimate. NMFS has determined that
neither this nor any other new information affects which species or
stocks have the potential to be affected or any other pertinent
information in the Description of the Marine Mammals in the Area of
Specified Activities contained in the supporting documents for the 2023
and 2022 IHAs.
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 UME (87 FR
46921, August 1, 2022). Should a final vessel speed rule be issued and
become effective during the effective period of this proposed renewal
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 would
remain in place. These changes would become effective immediately upon
the effective date of any final vessel speed rule and would not require
any further action on NMFS's part.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which an
authorization of incidental take is proposed here may be found in the
notice of the proposed IHA for the 2022 IHA (87 FR 30872, May 20,
2022), which is relied upon in the notice for the proposed 2023 IHA (88
FR 40212, June 21, 2023). NMFS has reviewed the monitoring data from
the 2023 IHA, recent draft SARs, information on relevant UMEs, and
other scientific literature, and determined that there is no new
information that affects our initial analysis of impacts on marine
mammals and their habitat.
Estimated Take
A detailed description of the methods used to estimate take for the
specified activity are found in the notices of the proposed and final
IHA for the 2022 IHA (87 FR 30872, May 20, 2022; 87 FR 52913, August
30, 2022) and summarized in the Notices of the proposed and final IHA
for the 2023 IHA (88 FR 40212, June 21, 2023; 88 FR 50117, August 1,
2023). The methods of estimating take are identical to those used in
the 2022 IHA and 2023 IHA (88 FR 40212, June 21, 2023). Specifically,
the source levels, stocks taken, methods of take, and types of take
remain unchanged from the 2022 IHA and 2023 IHA. In 2023, 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>. We refer the reader to
table 8 in Vineyard Northeast's 2023 IHA request for the specific
density values used in the analysis. The IHA request is available
online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llcs-marine-site-characterization-survey">https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llcs-marine-site-characterization-survey</a>. The marine mammal density/occurrence data applicable to this
renewal authorization remains unchanged from the 2023 IHA. The number
of takes proposed for authorization are a subset of the initial
authorized takes that better represent the amount of the remaining
activity Vineyard Northeast has left to complete. These estimated
takes, which reflect the remaining survey days, are indicated below in
table 1.
Table 1--Proposed Number of Takes by Level B Harassment by Species and Stock and Percent of Take by Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
2024 proposed renewal IHA
---------------------------------
2023 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... 340 12 12 3.52
Humpback whale........................ Megaptera novaeangliae... Gulf of Maine............ 1,396 12 12 0.86
Fin whale............................. Balaenoptera physalus.... Western North Atlantic... 6,802 20 20 0.29
Sei whale............................. Balaenoptera borealis.... Nova Scotia.............. 6,292 5 5 0.08
Minke whale........................... Balaenoptera Canadian Eastern Coastal. 21,968 46 45 0.21
acutorostrata.
Sperm whale........................... Physeter macrocephalus... North Atlantic........... 5,895 2 2 0.03
Long-finned pilot whale \1\........... Globicephala melas....... Western North Atlantic... 39,215 17 17 0.04
Killer whale \2\ \3\.................. Orcinus orca............. Western North Atlantic... UNK 4 4 \4\ 5.97
False killer whale \2\................ Pseudorca crassidens..... Western North Atlantic... 1,298 5 5 0.39
Atlantic spotted dolphin \3\.......... Stenella frontalis....... Western North Atlantic... 31,506 29 29 0.09
Atlantic white-sided dolphin.......... Lagenorhynchus acutus.... Western North Atlantic... 93,233 129 126 0.14
[[Page 51505]]
Bottlenose dolphin.................... Tursiops truncatus....... Western North Atlantic 6,639 45 44 0.66
Northern Migratory
Coastal.
Western North Atlantic Offshore....... 64,587................... 169...................... 165 0.26
Common dolphin........................ Delphinus delphis........ Western North Atlantic... 93,100 7,472 7,296 7.84
Risso's dolphin....................... Grampus griseus.......... Western North Atlantic... 44,067 9 9 0.02
White-beaked dolphin \2\ \3\.......... Lagenorhynchus Western North Atlantic... 536,016 30 30 0.006
albirostris.
Harbor porpoise....................... Phocoena phocoena........ Gulf of Maine/Bay of 85,765 347 339 0.40
Fundy.
Harbor seal \5\....................... Phoca vitulina........... Western North Atlantic... 61,336 939 917 1.49
Gray seal \5\......................... Halichoerus grypus....... Western North Atlantic... \6\ 27,911 418 408 0.09
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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 a density estimate for seals as a guild. Vineyard Wind used Protected Species Observer (PSO) data collected
during site characterization surveys within the survey area (2019, 2022-2024) to scale density-based exposure estimates for the seal guild for harbor
and gray seals.
\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 notices
announcing the issuance of the 2023 IHA (88 FR 50117, August 1, 2023)
and the 2022 IHA (87 FR 52913, August 30, 2022). In addition, the
discussion of the least practicable adverse impact included in those
documents as well as the notice of the proposed IHAs for 2022 (87 FR
30872, May 20, 2022) and 2023 (88 FR 40212, August 1, 2023) remains
accurate. NMFS proposes the following measures for this renewal IHA:
Establishment of Shutdown Zones--Marine mammal shutdown zones must
be established around the HRG survey equipment and monitored by NMFS-
approved PSOs during HRG surveys as follows:
<bullet> 500-meter (m) shutdown zone 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 shutdown zone 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 shutdown
zones 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 outside the shutdown
zones must be communicated to the vessel operator to prepare for
potential shutdown of the acoustic source.
Visual Monitoring--Monitoring must be conducted by NMFS-approved
PSOs with minimum qualifications described in the Federal Register
notices 2023 Proposed and Final IHAs (88 FR 40212, June 21, 2023; 88 FR
50117, August 1, 2023). 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, shutdown zones, 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 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 clearance zone for all Endangered Species Act-listed
species; and
<bullet> 100-m clearance zone 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 clearance zones 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
clearance zones 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 clearance zone 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 clearance zones
[[Page 51506]]
during the pre-start clearance period, initiation of HRG survey
equipment must not begin until the animal(s) has been observed exiting
the respective clearance zone, 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 shutdown zones 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 shutdown zones 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 shutdown zone (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 shutdown zone. 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 shutdown zone, or, until an additional period has
elapsed with no further sighting of the animal within the relevant
shutdown zone.
Upon implementation of shutdown, the HRG source may be reactivated
after the marine mammal that triggered the shutdown has been observed
exiting the applicable shutdown zone 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 shutdown zone. 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
shutdown zones during that time. For a shutdown of 30 minutes or
longer, or if visual observation was not continued diligently during
the pause, pre-clearance observation is required, as described above.
The shutdown requirement is waived for pinnipeds (seals) and
certain genera of small delphinids (i.e., Delphinus, Lagenorhynchus,
Stenella, or Tursiops) under certain circumstances. If a delphinid(s)
from these genera is visually detected within the shutdown zone,
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 summarized in the Federal Register notice
for the 2023 IHA (88 FR 50117, August 1, 2023). For a detailed
description of vessel strike avoidance measures, please see 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 2023 IHA (88 FR
50117, August 1, 2023). 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 NMFS
Office of Protected Resources (<a href="/cdn-cgi/l/email-protection#d18183ff988581ff9cbebfb8a5bea3b8bfb683b4a1bea3a5a291bfbeb0b0ffb6bea7"><span class="__cf_email__" data-cfemail="3363611d7a67631d7e5c5d5a475c415a5d546156435c414740735d5c52521d545c45">[email protected]</span></a>) and
to the NMFS Greater Atlantic Stranding Hotline (866-755-6622) as soon
as feasible. The incident must also be reported to the NMFS Greater
Atlantic Regional Fisheries Office (GARFO) (<a href="/cdn-cgi/l/email-protection#2f4142495c01484e5d0146414c464b4a415b4e43025b4e444a6f41404e4e01484059"><span class="__cf_email__" data-cfemail="9cf2f1faefb2fbfdeeb2f5f2fff5f8f9f2e8fdf0b1e8fdf7f9dcf2f3fdfdb2fbf3ea">[email protected]</span></a>). The report must include the information listed in the
Federal Register notice of the issuance of the 2022 IHA (87 FR 52913,
August 30, 2022).
Comments and Responses
As noted previously, NMFS published a notice of the proposed 2023
IHA (88 FR 40212, June 21, 2023) and solicited public comments on both
our proposal to issue the initial IHA for take incidental to marine
site characterization surveys and on the potential for a renewal IHA,
should certain requirements be met.
All public comments were addressed in the notice announcing the
issuance of the 2023 IHA (88 FR 50117, August 1, 2023) and none of the
comments specifically pertained to the renewal of the 2023 IHA.
Preliminary Determinations
Vineyard Northeast's HRG survey activities are a subset but
otherwise unchanged from those analyzed in support of the 2023 IHA. The
effects of the activity, taking into consideration the proposed
mitigation and related
[[Page 51507]]
monitoring measures, remain unchanged from those evaluated in support
of the 2023 IHA. 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) 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). 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. In addition, the
proposed survey area also overlaps with the area south of Martha's
Vineyard and Nantucket, primarily along the western side of Nantucket
Shoals, which has been identified as year-round core North Atlantic
right whale foraging habitat (Leiter et al., 2017; O'Brien et al.,
2022; Quintana-Rizzo et al., 2021; Van Parijs et al., 2023). 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. Due to the
temporary nature of the disturbance, the availability of similar
habitat and resources in the surrounding area, and required mitigation
measures, 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. 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 2023 IHA (88 FR 50117, August 1,
2023), 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 2023 IHA (88 FR 50117, August 1, 2023), 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. The 2022 IHA included the Cape Cod Bay SMA in
the survey area, however, in 2023 the survey area was reduced and no
longer overlapped with this SMA. The currently proposed survey also
does not include the Cape Cod Bay SMA.
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
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 2023 IHA (88 FR 50117, August 1,
2023) 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.
NMFS has preliminarily concluded that there is no new information
suggesting that our analysis or findings should change from those
reached for the 2023 IHA. This includes consideration of the slight
increase in estimated abundance of 6 stocks and slight decrease in
estimated abundance of 3 stocks. 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
[[Page 51508]]
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 Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a renewal IHA to Vineyard Northeast for conducting marine site
characterization surveys offshore of Massachusetts to southern New
Jersey from July 27, 2024 through July 26, 2025, 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>. We request comment on our analyses, the
proposed renewal IHA, and any other aspect of this notice. Please
include with your comments any supporting data or literature citations
to help inform our final decision on the request for MMPA
authorization.
Dated: June 12, 2024.
Angela Somma,
Chief, Endangered Species Division, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2024-13328 Filed 6-17-24; 8:45 am]
BILLING CODE 3510-22-P
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