Notice2024-21457
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to SouthCoast Wind Energy Marine Site Characterization Surveys off the Coast of Massachusetts and Rhode Island
Primary source
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Published
September 19, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from SouthCoast Wind Energy, LLC (SouthCoast Wind; formerly known as Mayflower Wind Energy, LLC) for the renewal of their prior incidental harassment authorization (IHA) (hereinafter, the "initial IHA") to take marine mammals incidental to marine site characterization surveys offshore of Massachusetts and Rhode Island. SouthCoast Wind's activities are identical to those covered in the 2023-2024 authorization, and consist of a subset of the initially planned activities. Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing the previous 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 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 182 (Thursday, September 19, 2024)</title>
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[Federal Register Volume 89, Number 182 (Thursday, September 19, 2024)]
[Notices]
[Pages 76796-76804]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-21457]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE152]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to SouthCoast Wind Energy Marine Site
Characterization Surveys off the Coast of Massachusetts and Rhode
Island
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments on proposed renewal incidental
harassment authorization.
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SUMMARY: NMFS received a request from SouthCoast Wind Energy, LLC
(SouthCoast Wind; formerly known as Mayflower Wind Energy, LLC) for the
renewal of their prior incidental harassment authorization (IHA)
(hereinafter, the ``initial IHA'') to take marine mammals incidental to
marine site characterization surveys offshore of Massachusetts and
Rhode Island. SouthCoast Wind's activities are identical to those
covered in the 2023-2024 authorization, and consist of a subset of the
initially planned activities. Pursuant to the Marine Mammal Protection
Act (MMPA), prior to issuing the previous 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 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 October
4, 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#e3aab7b3cd848297998886a38d8c8282cd848c95"><span class="__cf_email__" data-cfemail="622b36324c050316180907220c0d03034c050d14">[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. Attachments to comments will be
accepted in Microsoft Word, 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.
Electronic copies of the original application, renewal request, 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.
FOR FURTHER INFORMATION CONTACT: Jennifer Gatzke, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
[[Page 76797]]
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 promulgated or, if the taking is limited to harassment, an IHA 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''). NMFS must also prescribe requirements pertaining to
monitoring and reporting of such takings. The definition of key terms
such as ``take,'' ``harassment,'' and ``negligible impact'' can be
found in the MMPA and the NMFS's implementing regulations (see 16
U.S.C. 1362; 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 one 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 one-time 1-year
renewal of an 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:
[cir] 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);
and
[cir] 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.
3. 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="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://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 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 October 23, 2020, NMFS received a request from SouthCoast Wind
(formerly known as Mayflower Wind Energy) seeking authorization to take
marine mammals by Level B harassment only incidental to high-resolution
geophysical site characterization surveys (HRG) off Massachusetts and
Rhode Island in the area of Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf Lease Area
OCS-A-0521 and along potential submarine export cable routes. NMFS
published a notice of the proposed IHA in the Federal Register on May
20, 2021 (86 FR 27393). NMFS subsequently issued an IHA that was
effective for a period of one year, from July 1, 2021, through June 30,
2022, hereinafter referred to as the 2021 IHA (86 FR 38033; July 19,
2021).
On November 16, 2022, SouthCoast Wind submitted an application for
a renewal IHA in order to complete the remaining subset of the planned
survey activity that could not be completed under the 2021 IHA. After
NMFS determined the application was ineligible for renewal due to the
updates in marine mammal density information, on January 13, 2023,
SouthCoast submitted an updated request for a standard IHA. That
proposed IHA was published in the Federal Register on March 8, 2023 (88
FR 14335). Since all other aspects of the project remained the same
(i.e., the scope of the activities, the survey location, the acoustic
source use, and the level of impact expected to occur (i.e., Level B
harassment only)), NMFS relied on the information associated with the
issuance of the 2021 IHA. On May 11, 2023, NMFS issued an
[[Page 76798]]
IHA to SouthCoast Wind to take marine mammals incidental to marine site
characterization surveys in Massachusetts (88 FR 31678, May 18, 2023),
effective from May 12, 2023, through May 11, 2024, and hereinafter
referred to as the 2023 IHA. The present request for renewal is based
on this 2023 IHA application.
On July 1, 2024, NMFS received an application for the renewal of
the 2023 IHA. As described in the application for renewal IHA, the
activities for which incidental take is requested are a subset of the
activities that are covered by the 2023 IHA but were not completed
prior to its expiration. As required, the applicant also provided a
preliminary monitoring report which confirms that the applicant has
implemented the required mitigation and monitoring, and which also
shows that no impacts of a scale or nature not previously analyzed or
authorized have occurred as a result of the activities conducted. NMFS
has decided to waive the 60 days renewal requirement, recognizing that
the renewal IHA, if issued, will expire one year from the expiration
date of the underlying IHA, on May 11, 2025, and having ensured that
SouthCoast Wind understands that there is a lapse in MMPA authorization
coverage between the expiration of the initial IHA and the issuance of
any renewal.
Description of the Proposed Activities and Anticipated Impacts
SouthCoast Wind did not complete the planned survey scope of work
associated with the 2023 IHA prior to its expiration and is planning to
complete a subset of the activities during the remainder of 2024-2025.
HRG surveys are planned between approximately September 2024 and May
2025, using the same survey equipment, methods and types of vessels as
those previously analyzed. The 2024-2025 surveys will also be within
the same survey area described in the application for the 2021 and 2023
IHAs (figure 1).
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN19SE24.058
BILLING CODE 3510-22-C
[[Page 76799]]
Figure 1--Map of SouthCoast Wind Lease Area OCS-A 0521 Within the
Massachusetts Wind Energy Area and the Proposed Export Cable Corridors
to Falmouth, MA and to Brayton Point, Somerset, MA
The planned survey trackline, the number of active sound source
days (the number of days the vessels will be actively emitting sound
into the water column), and vessel days (number of days that the
vessels will be present in the area) will be reduced in 2024-2025
compared to those planned under the 2023-2024 IHA. A total of up to 700
kilometers (km) of trackline (500 km in the Lease Area [Inter-Array
Cable (IAC) surveys] and 200 km in the Export Cable Corridors (ECC)
[potential HDD surveys]) will be surveyed (table 1). On average,
approximately 50 km will be surveyed per day within the Lease Area and
15 km within the ECC, resulting in 10 active sound source days in the
Lease Area and approximately 14 in the ECC (for a total of
approximately 24 active sound source days in the entire project area).
The previous IHA application described up to 4 vessels being utilized
to conduct the surveys. The 2024-2025 surveys may use up to 4 vessels
as well. SouthCoast Wind survey contractors and protected species
observer (PSO) contractors will conduct all surveys in accordance with
the requirements stipulated in the 2023-2024 IHA. This renewal IHA is
identical to the previous IHA, with the exception that fewer trackline
kilometers will be surveyed, there will be fewer sound source days, and
fewer vessel days.
Table 1--Geophysical Surveys Completed in 2023-2024 and Tracklines Remaining (km)
----------------------------------------------------------------------------------------------------------------
Total
IHA trackline trackline Planned
Location planned 2023- completed 2023- trackline 2024-
2024 2024 2025
----------------------------------------------------------------------------------------------------------------
ECC--Potential HDD.............................................. 750 0 200
Lease Area--Inter-array Cable (IAC)............................. 1,950 718 500
----------------------------------------------------------------------------------------------------------------
To facilitate public review and comment on the proposed renewal
IHA, refer to the documents related to the previously issued 2021 and
2023 IHAs and we discuss any new or changed information herein. The
previous documents include: the notice of the proposed IHA published in
the Federal Register on May 20, 2021 (86 FR 27393); the notice of
issuance of the 2021 IHA (86 FR 38033, July 19, 2021); the notice of
the proposed IHA published in the Federal Register on March 8, 2023 (88
FR 14335), the notice of issuance of the 2023 IHA (88 FR 31678, May 18,
2023), and all associated references and documents. We also refer the
reader to previous and current applications and monitoring reports
submitted by SouthCoast Wind and its predecessor Mayflower Wind, which
may be found at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-southcoast-wind-energy-llcs-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-southcoast-wind-energy-llcs-marine-site-characterization</a>.
Detailed Description of the Activity
A detailed description of the marine site characterization survey
activities for which take is proposed here may be found in previous
Federal Register notices and documents relevant to the previous IHAs
(86 FR 27393, May 20, 2021; 88 FR 14335, March 8, 2023). The survey
location and nature of the activities that could result in take of
marine mammals (HRG surveys), including the types of equipment planned
for use, are identical to those described in these previous notices,
with the exception that the scale of work is reduced. Only a subset of
the planned HRG work was completed under the 2023 IHA. Between May 18
and July 10, 2023, a total of 55 survey days and 718 km of tracklines
were completed. For the remainder of 2024, SouthCoast Wind proposes to
conduct a subset (700 km) of the remaining tracklines (table 1).
The proposed renewal would be effective from the date of issuance
through May 11, 2025 (i.e., one year after the expiration of the 2023
IHA).
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which authorization of take is proposed here, including information
on abundance, status, distribution, and hearing, may be found in the
Federal Register notices of the proposed IHAs for the initial
authorizations (86 FR 27393, May 20, 2021; 88 FR 14335, March 8, 2023).
Since the publication of the final Federal Register notice (88 FR
31678, May 18, 2023), NMFS has reviewed the monitoring data from the
prior IHA, the draft 2023 Stock Assessment Report (SAR), which included
updates to certain stock abundances since the 2023 IHA was issued,
information on relevant Unusual Mortality Events (UMEs), and other
scientific literature.
The draft 2023 SAR updated the population estimate (Nbest) 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 2017-2021 period 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).
The draft 2023 SARs include updates for additional marine mammal
species and stocks (i.e., North Atlantic right whale, fin whale, sei
whale, minke whale, sperm whale, Atlantic spotted dolphin, Atlantic
white-sided dolphin, bottlenose dolphin (Western North Atlantic--
Offshore stock), common dolphin, long-finned pilot whales, Risso's
dolphin, harbor porpoise, and gray seal), which are specifically
included in table 2 below. For species for which there has been no
change between the finalization of the final 2022 SARs to the release
of the draft 2023 SARs, NMFS has noted that below.
[[Page 76800]]
Table 2--Marine Mammal Species \a\ Likely To Occur Near the Project Area That May Be Taken by SouthCoast Wind's Activities
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ESA/MMPA status; Stock abundance (CV, N
Common name Scientific name Stock strategic (Y/N) min, most recent PBR Annual M/
\b\ abundance survey) \c\ SI \d\
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Order Artiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Balaenidae:
North Atlantic right whale \e\.. Eubalaena glacialis.... Western Atlantic....... E, D, Y 340 (0, 337, 2021).... 0.7 27.2
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24, 5,573, 11 2.05
2021).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02, 3,098, 6.2 0.6
2021).
Minke whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31, 17,002, 170 9.4
acutorostrata. Coastal. 2021).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, N 1,396 (0, 1380, 2016). 22 12.15
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 5,895 (0.29, 4,639, 9.28 0.2
2021).
Family Delphinidae:
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71, 54,443, 544 28
2021).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 31,506 (0.28, 25,042, 250 0
2021).
Common bottlenose dolphin....... Tursiops truncatus..... Western North Atlantic -, -, N 64,587 (0.24, 52,801, 507 28
Offshore \f\. 2021).
....................... Northern Migratory .................. No changes............ ......... .........
Coastal.
Long finned pilot whale \g\..... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.30, 30,627, 306 5.7
2021).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 44,067 (0.19, 30,662, 307 18
2021).
Common dolphin.................. Delphinus delphis...... Western North 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--Superfamily Pinnipedia
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Family Phocidae (earless seals):
Gray seal \h\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,911 (0.20, 23,624, 1,512 4,570
2021).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1,729 339
2018).
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\a\ 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>).
\b\ 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 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.
\c\ NMFS' marine mammal SARs can be found online 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>.
CV is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\d\ 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, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\e\ The current SAR includes an estimated population (Nbest = 340) based on sighting history through December 2021 (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>). 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).
\f\ Estimates may include sightings of the coastal form.
\g\ Key uncertainties exist in the population size estimate for this species, including uncertain separation between short-finned and long-finned pilot
whales, small negative bias due to lack of abundance estimate in the region between US and the Newfoundland/Labrador survey area, and uncertainty due
to unknown precision and accuracy of the availability bias correction factor that was applied.
\h\ NMFS' stock abundance estimate (and associated Potential Biological Removal value) applies to the U.S. population only. Total stock abundance
(including animals in Canada) is approximately 394,311. The annual M/SI value given is for the total stock.
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 2021 authorization (86 FR 27393, May
20, 2021). This description was also incorporated by reference in the
Notice of the Proposed IHA for the 2023 authorization (88 FR 14335,
March 8, 2023), for which this Notice is a Proposed renewal. 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 and inputs used to estimate
take for the specified activity are found in the Notice of the Proposed
IHA for the initial authorization (88 FR 14335, March 8, 2023). The
source levels applicable to this authorization remain unchanged from
the previously issued IHA. Similarly, the stocks taken, marine mammal
density data, methods of take, and types of take remain unchanged from
the previously issued 2023 IHA. The number of requested takes is
reduced (table 3), due to the smaller number of tracklines being
surveyed, as indicated above in table 1.
[[Page 76801]]
Table 3--Number of Takes by Level B Harassment Proposed for Authorization and Percentages of Each Stock
Abundance for 2024-2025 Surveys
----------------------------------------------------------------------------------------------------------------
Combined
density based NMFS proposed NMFS stock Percentage of
Species calculated authorized abundance NMFS stock
takes take abundance
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................... 1.2 \a\ 2 340 0.59
Fin whale....................................... 0.5 \c\ 3 6,802 0.04
Sei whale....................................... 0.3 \a\ 2 6,292 0.03
Minke whale..................................... 2.7 3 21,968 0.02
Humpback whale.................................. 0.5 \b\ 11 1,396 0.86
Sperm whale..................................... 0.1 \a\ 2 5,895 0.03
Atlantic white-sided dolphin.................... 5.8 \a\ 28 93,233 0.03
Atlantic spotted dolphin........................ 1.0 \a\ 29 31,506 0.09
Common bottlenose dolphin....................... 3.0 \b\ 31 64,587 0.05
Long finned pilot whale......................... 0.4 \a\ 8 39,215 0.02
Risso's dolphin................................. 0.5 \a\ 5 44,067 0.02
Common dolphin.................................. 49.3 \b\ 429 93,100 0.46
Harbor porpoise................................. 19 19 85,765 0.02
Gray seal....................................... 32.4 32 27,911 0.12
Harbor seal..................................... 14.4 14 61,366 0.24
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\a\ Take increased to the species mean group size (86 FR 38033, July 19, 2021; 88 FR 31678, May 18, 2023).
\b\ Take increased to equal the estimate of potential take based on previous PSO data (86 FR 38033, July 19,
2021; 88 FR 31678, May 18, 2023).
\c\ Average group size for fin whales is assumed here as 2. However, we increase the proposed authorized take
number to 3 to equal the number of whales reported observed within the estimated harassment zone by SouthCoast
during 2023-24 survey effort.
Description of Proposed Mitigation, Monitoring and Reporting Measures
The proposed mitigation, monitoring, and reporting measures
included as requirements in this authorization are identical to those
included in the Federal Register notice announcing the issuance of the
initial IHA (88 FR 31678, May 18, 2023), and the discussion of the
least practicable adverse impact included in that document and the
Notice of the proposed IHA (88 FR 14335, March 8, 2023) remains
accurate. The following identical measures are proposed for this
renewal:
1. The Holder must use independent, dedicated, qualified protected
species observers (PSOs), meaning that the PSOS must be employed by a
third-party observer provided, must 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 protected species
and mitigation requirements (including brief alerts regarding maritime
hazards), and must be qualified pursuant to section 5(a) of the IHA.
2. The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
acoustic source to ensure that mitigation commands are conveyed swiftly
while allowing PSOs to maintain watch.
3. During survey operations involving use of the sparker (e.g., any
day on which use of the sparker source is planned to occur, and
whenever the sparker source is in the water, whether activated or not),
a minimum of one PSO must be on duty and conducting visual observations
at all times during daylight hours (i.e., from 30 minutes prior to
sunrise through 30 minutes following sunset), and a minimum of two PSOs
must be on duty and conducting visual observations at all times during
nighttime hours.
4. Visual monitoring must begin no less than 30 minutes prior to
ramp-up and must continue until one hour after use of the acoustic
source ceases.
5. Visual PSOs shall conduct visual observations form the most
appropriate observation posts using appropriate equipment and the naked
eye while free from distractions and in a consistent, systematic, and
diligent manner. When two PSOs are required, the PSOs must coordinate
to ensure 360[deg] visual coverage around the vessel.
6. Any observations of marine mammals by crew members aboard any
vessel associated with the survey must be relayed to the PSO team.
7. PSOs may be on watch for a maximum of four consecutive hours
followed by a break of at least one hour between watches and may
conduct a maximum of 12 hours of observations per 24-hour period.
8. PSOS shall establish and monitor applicable shutdown zones
during use of the sparker source (see below). These zones shall be
based upon the radial distance from the acoustic source (rather than
being based around the vessel itself).
9. Shutdown zones must be as follows:
[cir] A 500-meter (m) shutdown zone for North Atlantic right whales
(NARWs).
[cir] A 100-m shutdown zone for all other marine mammals (excluding
NARWs).
10. Pre-start clearance and ramp up--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. Operators should ramp up sources to half power for 5 minutes
and then proceed to full power. A 30-minute pre-start clearance
observation period of the shutdown zones must occur prior to the start
of ramp-up. All operators must adhere to the following pre-start
clearance and ramp-up requirements:
[cir] The operator must notify a designated PSO of the planned
start of ramp-up as agreed upon with the lead PSO; the notification
time should not be less than 60 minutes prior to the planned ramp-up in
order to allow the PSOs time to monitor the shutdown zones for 30
minutes prior to the initiation of ramp-up (pre-start clearance).
During this 30 minute pre-start clearance period the entire shutdown
zone must be visible, except as indicated below.
[cir] Ramp-ups shall be scheduled so as to minimize the time spent
with the source activated.
[cir] A visual PSO conducting pre-start clearance observations must
be notified again immediately prior to initiating ramp-up procedures
and the operator must receive confirmation from the PSO to proceed.
[[Page 76802]]
[cir] 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 zone.
[cir] Ramp-up may not be initiated if any marine mammal to which
the prestart clearance requirement applies is within the shutdown zone.
If a marine mammal is observed within the shutdown zone during the 30
minute pre-start clearance period, ramp-up may not begin until the
animal(s) has been observed exiting the zones or until an additional
time period has elapsed with no further sightings (30 minutes for all
baleen whale species and sperm whales and 15 minutes for all other
species).
[cir] The pre-start clearance requirement is waived for small
delphinids (individuals belonging to the following genera of the Family
Delphinidae: Steno, Delphinus, Lagenorhynchus, Stenella, and Tursiops)
and pinnipeds. Detection of a small delphinid or pinniped within the
shutdown zone does not preclude beginning of ramp-up, unless the PSO
confirms the individual to be of a genus other than those listed, in
which case normal pre-clearance requirements apply.
[cir] 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 the pre-clearance requirement is
waived), PSOs must use best professional judgment in making the
decision to call for a shutdown.
[cir] PSOs must monitor the shutdown zones 30 minutes before and
during ramp-up, and ramp-up must cease and the source must be shut down
upon observation of a marine mammal within the applicable shutdown
zone.
[cir] 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. Sparker activation may only occur at night where operational
planning cannot reasonably avoid such circumstances.
[cir] If the acoustic source is shut down for brief periods (i.e.,
less than 30 minutes) for reasons other than implementation of
prescribed mitigation (e.g., mechanical difficulty), it may be
activated again without ramp-up if PSOs have maintained constant visual
observation and no detections of marine mammals have occurred within
the applicable shutdown zone. For any longer shutdown, pre-start
clearance observation and ramp-up are required.
11. Shutdown requirements:
[cir] Any PSO on duty has the authority to call for a shutdown of
the sparker source if a marine mammal is detected within the applicable
shutdown zone.
[cir] When the sparker source is active and a marine mammal appears
within or enters the applicable shutdown zone, the source must be shut
down. When shutdown is instructed by a PSO, the source must be
immediately deactivated and any dispute resolved only following
deactivation.
[cir] The shutdown requirement is waived for small delphinids
(individual belonging to the following genera of the Family
Delphinidae: Steno, Delphinus, Lagenorhynchus, Stenella, and Tursiops)
and pinnipeds. If a small delphinid or pinniped is visually detected
within the shutdown zone, no shutdown is required unless the PSO
confirms the individual to be of a genus other than those listed, in
which case a shutdown is required
[cir] 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 or one of the
species with a larger shutdown zone), PSOs must use best professional
judgment in making the decision to call for a shutdown.
a. Upon implementation of shutdown, the source may be reactivated
after the marine mammal has been observed exiting the applicable
shutdown zone or following a clearance period (30 minutes for all
baleen whale species and sperm whales and 15 minutes for all other
species) with no further detection of the marine mammal.
[cir] 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
Level B harassment zone, shutdown must occur.
12.Vessel Strike--Vessel operators must comply with the below
measures except under extraordinary circumstances when the safety of
the vessel or crew is in doubt or the safety of life at sea is in
question. These requirements do not apply in any case where compliance
would 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.
[cir] 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 single marine mammal at the surface may indicate the
presence of submerged animals in the vicinity of the vessel; therefore,
precautionary measures should always be exercised. A visual observer
aboard the vessel must monitor a vessel strike avoidance zone around
the vessel (species-specific distances detailed below).
[cir] 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 marine mammal from other phenomena and (2)
broadly to 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 mammals.
[cir] All vessels, regardless of size, must observe a 10-knot speed
restriction in specific areas designated by NMFS for the protection of
North Atlantic right whales from vessel strikes. These include all
Seasonal Management Areas (SMA) (when in effect), any dynamic
management areas (DMA) (when in effect), and Slow Zones. See <a href="https://www.fisheries.noaa.gov/national/endangered-speciesconservation/reducing-ship-strikes-north-atlantic-right-whales">https://www.fisheries.noaa.gov/national/endangered-speciesconservation/reducing-ship-strikes-north-atlantic-right-whales</a> for specific detail
regarding these areas. It is SouthCoast Wind's responsibility to
maintain awareness of the establishment and location of any such areas
and to abide by these requirements accordingly.
[cir] Vessel speeds must also be reduced to 10 knots or less when
mother/calf pairs, pods, or large assemblages of cetaceans are observed
near a vessel.
[cir] All vessels must maintain a minimum separation distance of
500 m from right whales. If a right whale is sighted within the
relevant separation distance, the vessel must steer a course away at 10
knots or less until the 500-m separation distance has been established.
If a whale is observed but cannot be confirmed as a species other than
a right whale, the vessel operator must assume that it is a right whale
and take appropriate action.
[cir] All vessels must maintain a minimum separation distance of
100 m from sperm whales and all other baleen whales.
[cir] 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).
[cir] When marine mammals are sighted while a vessel is underway,
the vessel shall take action as necessary to avoid violating the
relevant separation distance (e.g., attempt to remain parallel
[[Page 76803]]
to the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area, reduce speed and shift
the engine to neutral). This does not apply to any vessel towing gear
or any vessel that is navigationally constrained.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (88
FR 31678, May 18, 2023) and solicited public comments on both our
proposal to issue the initial IHA for 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 initial IHA (88 FR 31678, May 18, 2023).
Below, we describe how we have addressed, with updated information
where appropriate, any comments received that specifically pertain to
the renewal of the 2023 IHA.
Comment: Oceana raised objections to NMFS' proposed renewal process
for potential extension of the 1-year IHA with an abbreviated 15-day
public comment period. Oceana recommended that an additional 30-day
public comment period is necessary for any IHA renewal request.
Response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464, October 2, 2019; 85 FR53342, August 28, 2020), NMFS
explained the IHA renewal process is consistent with the statutory
requirements contained in section 101(a)(5)(D) of the MMPA, and further
promotes NMFS' goals of improving conservation of marine mammals and
increasing efficiency in the MMPA compliance process. Therefore, we
intend to continue to implement the existing renewal process.
All IHAs issued, whether an initial IHA or a renewal, are valid for
a period of not more than 1 year. The public has 30 days to comment on
proposed IHAs, with a cumulative total of 45 days for IHA renewals. The
notice of the proposed IHA published in the Federal Register on March
8, 2023, (88 FR14335) provided a 30-day public comment period and made
clear that NMFS was seeking comment on the proposed IHA and the
potential issuance of a renewal for this survey. As detailed in the
Federal Register notice for the proposed IHA and on the agency's
website, eligibility for renewal is determined on a case-by-case basis,
renewals are subject to an additional 15-day public comment period, and
the renewal is limited to up to another year of identical or nearly
identical activities as described in the Description of Proposed
Activities section of the proposed IHA notice or the activities
described in the Description of Proposed Activities section of the
proposed IHA 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 the proposed notice.
NMFS' analysis of the anticipated impacts on marine mammals caused by
the applicant's activities covers both the initial IHA period and the
possibility of a 1-year renewal. Therefore, a member of the public
considering commenting on a proposed initial IHA also knows exactly
what activities (or subset of activities) would be included in a
proposed renewal IHA, the potential impacts of those activities, the
maximum amount and type of take that could be caused by those
activities, the mitigation and monitoring measures that would be
required, and the basis for the agency's negligible impact
determinations, least practicable adverse impact findings, small
numbers findings, and (if applicable) the no unmitigable adverse impact
on subsistence use finding--all the information needed to provide
complete and meaningful comments on a possible renewal at the time of
considering the proposed initial IHA. Members of the public have the
information needed to meaningfully comment on both the immediate
proposed IHA and a possible 1-year renewal, should the IHA holder
choose to request one.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal these would be limited to
documentation that NMFS would make available and use to verify that the
activities are identical or nearly identical to those in the initial
IHA such that the changes would have either no effect on impacts to
marine mammals or decrease those impacts, or are a subset of activities
already analyzed and authorized but not completed under the initial
IHA. NMFS would also need to confirm, among other things, that the
activities would occur in the same location; involve the same species
and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The renewal request
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period, which includes NMFS' direct notice to anyone who commented on
the proposed initial IHA, provides the public an opportunity to review
these few documents, provide any additional pertinent information, and
comment on whether they think the criteria for a renewal have been met.
Combined together, the 30-day public comment period on the initial IHA
and the additional 15-day public comment period on the renewal of the
same or nearly identical activities, provides the public with a total
of 45 days to comment on the potential for renewal of the IHA.
In addition to the IHA renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
description of the process and express invitation to comment on
specific potential renewals in the Request for Public Comments section
of each proposed IHA, the description of the process on NMFS' website,
further elaboration on the process through responses to comments such
as these, posting of substantive documents on the agency's website, and
provision of 30 or 45 days for public review and comment on all
proposed initial IHAs and renewals respectively, NMFS has ensured that
the public is ``invited and encouraged to participate fully in the
agency's decision-making process,'' as Congress intended.
For more information, NMFS has published a description of the
renewal process on our website (available at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>).
Preliminary Determinations
NMFS has preliminarily concluded that there is no new information
suggesting that our analysis or findings should change from those
reached for the initial IHA. Based on the information and analysis
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 authorized takes will have a negligible
impact on the affected marine mammal species or stocks; (3) the
authorized takes represent small numbers of marine mammals relative to
the affected stock abundances; (4) SouthCoast Wind's activities will
not have an unmitigable adverse impact on taking for subsistence
[[Page 76804]]
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 consults internally, in this case with the NMFS Greater Atlantic
Regional Fisheries Office (GARFO), whenever we propose to authorize
take for endangered or threatened species.
NMFS Office of Protected Resources has proposed to authorize the
incidental take of four species of marine mammals which are listed
under the ESA (the North Atlantic right, fin, sei, and sperm whale) and
has determined that these activities fall within the scope of
activities analyzed in GARFO's programmatic consultation regarding
geophysical surveys along the U.S. Atlantic coast in the three Atlantic
Renewable Energy Regions (completed June 29, 2021; revised September
2021). The proposed renewal IHA provides no new information about the
effects of the action, nor does it change the extent of effects of the
action, or present any other basis to require re-initiation of
consultation with NMFS GARFO; therefore, the ESA consultation has been
satisfied for the initial IHA and remains valid for the renewal IHA.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a renewal IHA to SouthCoast Wind for conducting HRG surveys off
the coast of Massachusetts and Rhode Island until May 11, 2025,
provided the previously described mitigation, monitoring, and reporting
requirements are incorporated. A draft of the proposed and final
initial 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: September 16, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-21457 Filed 9-18-24; 8:45 am]
BILLING CODE 3510-22-P
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