Notice2024-23984
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the New York Bight
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 17, 2024
Effective
October 9, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued a renewal incidental harassment authorization (IHA) to Community Offshore Wind, LLC (COSW) to incidentally harass marine mammals incidental to marine site characterization surveys offshore from New Jersey and New York in the New York Bight, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0539 (Lease Area) and associated Export Cable Route (ECR) survey area (ECR Area). There are no changes from the proposed authorization to this final authorization.
Full Text
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<title>Federal Register, Volume 89 Issue 201 (Thursday, October 17, 2024)</title>
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[Federal Register Volume 89, Number 201 (Thursday, October 17, 2024)]
[Notices]
[Pages 83655-83669]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23984]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE297]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys in the New York Bight
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of renewal incidental harassment
authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued a renewal incidental harassment authorization
(IHA) to Community Offshore Wind, LLC (COSW) to incidentally harass
marine mammals incidental to marine site characterization surveys
offshore from New Jersey and New York in the New York Bight,
specifically within the Bureau of Ocean Energy Management (BOEM)
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS) Lease Area OCS-A 0539 (Lease Area)
and associated Export Cable Route (ECR) survey area (ECR Area). There
are no changes from the proposed authorization to this final
authorization.
DATES: This authorization is effective from October 9, 2024 through
June 30, 2025.
ADDRESSES: 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/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, see FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Rachel Hilt, Office of Protected
Resources, NMFS, (301) 427-8401.
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 promulgated 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
[[Page 83656]]
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 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 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:
<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., 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
<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.
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>.
History of Request
On June 30, 2023, NMFS issued an IHA to COSW to take marine mammals
incidental to Marine Site Characterization Surveys in the New York
Bight, specifically within the BOEM Commercial Lease of Submerged Lands
for Renewable Energy Development on the OCS Lease Area and associated
ECR Area (88 FR 42322), effective from July 1, 2023, through June 30,
2024. On June 14, 2024, NMFS received an application for the renewal of
that initial IHA. COSW has met all the conditions for a renewal. As
described in the application for renewal IHA, the activities for which
incidental take is requested consist of activities that are covered by
the initial authorization but were not completed prior to its
expiration. As required, the COSW 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
initial IHA, on June 30, 2025, and having ensured that COSW understands
that there is a lapse in MMPA authorization coverage between the
expiration of the initial IHA and the issuance of any renewal. The
notice of the proposed renewal IHA was published for public comment on
August 21, 2024 (89 FR 67592). There are no changes from the proposed
authorization in this final authorization.
Description of the Specified Activities and Anticipated Impacts
COSW's 2023 IHA authorized take of marine mammals incidental to
marine site characterization surveys, including high-resolution
geophysical (HRG) surveys, offshore from New Jersey and New York in the
New York Bight, which is within the BOEM Lease Area OCS-A 0539 and
associated ECR Area. Hereafter, both the areas are referred to as the
Survey Area. The purpose of these surveys is to provide sufficient data
to meet BOEM guidelines and support the development of offshore wind
facilities in the survey area. Specifically, data collected would
support site characterization, siting, and engineering design of
offshore wind facilities including turbine generators, offshore
substations, submarine cables and data necessary for project review
requirements. COSW's 2023 survey plan included 30,467 kilometers (km)
of trackline. Of note, the trackline was broken down by Lease Area
survey and ECR survey area. Approximately 28,290 km was planned for the
Lease Area and 2,177 km for the ECR Area. The effort for bottlenose
dolphins was differentiated to account for the two stocks present in
the Survey Area. In the ECR Area trackline, 400 km is in waters <20
meters (m) deep where the Western North Atlantic Migratory Coastal
Stock (Coastal Stock) of bottlenose dolphins may be present, whereas
the remaining 1,777 km is in waters >20 m deep where the Western North
Atlantic Offshore Stock (Offshore Stock) of bottlenose dolphins may be
present. In the Lease Area, all 28,290 km of trackline are in waters
>20 m deep. COSW actually only completed 11,775 km (120 km of trackline
in waters <20 m deep) of trackline prior to the request for the
renewal, representing approximately 63 percent. As noted above, the
effort for bottlenose dolphins was differentiated to account for the
two stocks present in the Survey Area. Tracklines in the Survey Area in
waters <20 m and >20 m deep were differentiated to account for
differences in density between the two stocks of bottlenose dolphins,
and the appropriate percentages of tracklines (70 and 62,
respectively).
Under the renewal IHA, COSW plans to continue to conduct survey
activities over the remaining approximately 19,092 km of trackline that
was not completed in 2023. As a result of a miscommunication, COSW's
initial IHA authorized 400 km less trackline than they intended (i.e.,
30,467 km versus 30,867 km) and, therefore, COSW asked that the renewal
IHA include the 400 km (19,092 km vs. 18,692) of trackline
[[Page 83657]]
that was inadvertently omitted from the initial IHA. NMFS has
determined that this correction to the remaining trackline is a minor
change that does not affect the previous analyses, mitigation or
monitoring requirements, or take estimates (except, of course, for the
reduction in the take estimates). The percent of trackline left to
survey and estimated take that may occur has been updated accordingly.
COSW will have a maximum of three vessels surveying concurrently.
The potential impacts of COSW's planned activities on marine
mammals involve acoustic stressors and are unchanged from the impacts
described in the Federal Register notice for the initial Proposed IHA
(88 FR 24574, April 21, 2023). Underwater sound, resulting from
particular components of COSW's HRG survey 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 renewal IHA is for the remainder of work that was not
completed by the expiration date of the 2023 IHA. The renewal IHA
authorizes incidental take, by Level B harassment, only of 15 species
(16 stocks) of marine mammals for a subset of marine site
characterization survey activities to be completed, in the same area,
using survey methods identical to those conducted under the 2023 IHA.
Neither COSW 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 42322, June 30, 2023).
Detailed Description of the Activity
A detailed description of the surveys for which incidental take is
proposed here may be found in the Federal Register Notices of the
initial Proposed IHA (88 FR 24574, April 21, 2023). 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 notice, with the exception
of the reduction in the size of the survey area since a small subset of
the survey work planned under the 2023 IHA was completed. This renewal
IHA is effective from [insert date of issuance] through June 30, 2025.
Comments and Responses
A notice of NMFS' proposal to issue a renewal IHA to COSW was
published in the Federal Register on August 21, 2024 (89 FR 67592).
That notice described, in detail, or referenced descriptions of COSW's
activity, the marine mammal species that may be affected by the
activity, the anticipated effects on marine mammals and their habitat,
estimated number and manner of take, and proposed mitigation,
monitoring and reporting measures. NMFS received a total of two public
comment letters. One public comment letter was from a non-governmental
organization (Clean Ocean Action (COA)). The other was from the
Wampanoag Tribe of Gay Head (Aquinnah) (Tribe).
We reiterate that NMFS' proposed action concerns only the
authorization of marine mammal take incidental to the planned surveys--
NMFS' authority under the MMPA does not extend to the surveys
themselves or to wind energy development more generally. Some comments
requested that NMFS fully study the implications of the Vineyard Wind
blade failure on marine mammals before moving forward with offshore
wind development, oppose take from offshore wind until the U.S. Coast
Guard has finished establishing shipping safety fairways to balance
offshore wind development with navigational safety, criticize NMFS and
BOEM for improperly segmenting offshore wind activities in the Atlantic
Ocean, and criticize BOEM's underdeveloped understanding of marine
mammal species' current status such that the agency cannot accurately
plan for future protections and mitigation of potential impacts. We do
not specifically address these comments because they are out of scope
of the proposed Renewal IHA (89 FR 67592, August 21, 2024). All
substantive comments, and NMFS' responses, are provided below. The
comments and recommendations are available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. Please see the
comment submissions for full details regarding the recommendations and
supporting rationale.
Comment 1: A commenter has suggested that a Letter of Authorization
(LOA) would be more appropriate than an IHA for the proposed survey
activities, as the survey activities have spanned more than one year
and NMFS has not indicated if the additional year will be sufficient to
complete the remaining work. The commenter further stated that it is
unclear whether there will be another renewal IHA proposed and
authorized at the end of the current IHA, should it be granted.
Response: NMFS disagrees with the commenter that an LOA would be
more appropriate than an IHA for the planned survey activities simply
because the survey activity has extended for more than a year. The MMPA
allows, upon request, the incidental take of small numbers of marine
mammals by U.S. citizens, engaged in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made. Two types of authorizations may be issued under
Sections 101(a)(5)(A) and (D) of the MMPA. An LOA and accompanying
incidental take regulation (ITR) may be issued to authorize U.S.
citizens, engaged in a specified activity (other than commercial
fishing), to take small numbers of marine mammals for up to 5 years,
whereas an IHA may be issued to authorize U.S. citizens, engaged in a
specified activity (other than commercial fishing), to take small
numbers of marine mammals by harassment for a period of 1 year. Neither
the MMPA, nor its legislative history specifically require U.S.
citizens to seek an LOA/ITR pursuant to section 101(a)(5)(A) of the
MMPA simply because an activity continues for more than one year. A
determination of which option to pursue is not solely dependent on
whether an activity continues for more than one year.
While the NMFS website recommends that applicants seek an LOA if
specified activity has the potential to result in harassment only and
is planned for multiple years, it is not dispositive. On our website
and in various Federal Register notices, NMFS explains that a renewal
IHA is available to address those circumstances in which an action
under the initial IHA could not be completed within the effective
period of the authorization. COSW's request for the initial IHA
indicated a project duration of 1 year. As delays may be encountered,
the Federal Register notices for the Proposed IHA and the Proposed
Renewal IHA further establish that NMFS may issue ``a one-time, one-
year renewal IHA'' on a case-by-case basis if certain conditions are
met (88 FR 24574, Apr. 21, 2023; 89 FR 67592, Aug. 21, 2024). In order
to qualify for a renewal IHA, the proposed renewal must consist of no
more than one additional year of identical, or nearly identical,
activities as were covered by the initial IHA or a subset of the
activities covered by the initial IHA.
[[Page 83658]]
Additionally, the request for a renewal IHA must be accompanied by a
preliminary monitoring report and explanation that the results do not
indicate impacts of a scale or nature not previously analyzed or
authorized. NMFS must also find there are no more than minor changes in
the activities, the mitigation and monitoring measures remain the same
and are appropriate, and the findings in the initial IHA remain valid.
Upon review of the COSW's request for renewal, the status of the
affected species or stocks, the preliminary monitoring report, and
other pertinent information, NMFS finds: (1) COSW's renewal request is
a subset of the activities covered by the initial IHA; (2) there are no
more than minor changes in the survey activities (i.e., COSW's
correction of the remaining survey tracklines); (3) COSW's preliminary
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized under the initial IHA; (4) mitigation
and monitoring requirements are identical to those established in the
initial IHA; and (5) the findings in the initial IHA (including the
take estimates and small numbers determinations (except, of course, for
reductions in each resulting from the change in the survey effort) and
negligible impact determinations) remained valid. Therefore, COSW meets
the conditions for a renewal IHA.
Comment 2: A commenter states there is considerable uncertainty
regarding the effect of preconstruction surveying on marine mammals.
Response: NMFS disagrees. NMFS has issued IHAs for marine site
characterization surveys and HRG surveys since 2014 and marine mammal
behavioral responses, or lack thereof, from these activities are well
documented. Marine mammal monitoring reports from authorized surveys
and the best available science indicate that only Level B harassment
(i.e., temporary disruption of behavioral patterns) may occur. No
mortality or serious injury, or Level A harassment, is expected to
occur as a result of COSW's planned surveys, and there is no scientific
evidence indicating that any marine mammal could experience mortality
or serious injury as a direct result of noise from HRG survey activity.
Comment 3: A commenter stated that Protected Species Observers
(PSO) reports are rarely published publicly in any consistent way
unless and until a developer applies for an IHA renewal.
Response: NMFS disagrees with the commenter's assertion that PSO
reports are rarely published unless a developer applies for an IHA
renewal. All applicants are required to submit a PSO report within 90
days after completion of survey activities that fully documents the
methods and monitoring protocols, summarizes the data recorded during
monitoring. All PSO reports are made publicly available on NMFS's
website after receipt. The preliminary PSO report submitted by the
applicant and noted in the Federal Register notice (89 FR 67592, August
21, 2024) proposing this action was a requirement under the BOEM
Project Design Criteria (PDC) and Best Management Practices (PDC 8).
COSW's preliminary PSO report is publicly available on NMFS's website.
To view the preliminary PSO information, please visit: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-community-offshore-wind-llc-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-community-offshore-wind-llc-marine-site-characterization</a>. NMFS agrees with the
need for reporting and indeed, the MMPA calls for IHAs to incorporate
reporting requirements and a final marine mammal PSO report is required
for the 2023 IHA. As included in the proposed IHA, the final IHA
includes requirements for reporting that supports COA's recommendations
for consistent reporting, as well as timeframes for when reports will
be considered complete and subsequently made publicly available. COSW
is required to submit a PSO report to NMFS within 90 days after
completion of survey activities that fully documents the methods and
monitoring protocols, summarizes the data recorded during monitoring.
All final reports and associated data submitted to NMFS are posted on
NMFS' website.
Comment 4: Commenters state they do not agree with the use of a
Categorical Exclusion (CE) under National Environmental Policy Act
(NEPA) and further analysis should be conducted while considering
cumulative effects of the proposed IHA relative to other authorized
takes in the area, including the activities conducted under the 2023
IHA and other projects in the New York Bight.
Response: NMFS disagrees with the commenter's statement and has
determined that the issuance of the IHA qualifies to be categorically
excluded from further NEPA review. A CE may be used to address a
category of actions that an agency has determined does not individually
or cumulatively have a significant effect on the quality of the human
environment and is appropriately applied for such categories of actions
so long as there are no extraordinary circumstances present that would
indicate that the effects of the action may be significant.
Extraordinary circumstances are situations for which NOAA has
determined further NEPA analysis is required because they are
circumstances in which a normally excluded action may have significant
effects. A determination of whether an action that is normally excluded
requires additional evaluation because of extraordinary circumstances
focuses on the action's potential effects and considers the
significance of those effects in terms of both context (consideration
of the affected region, interests, and resources) and intensity
(severity of impacts). Potential extraordinary circumstances relevant
to this action include: (1) adverse effects on species or habitats
protected by the MMPA that are not negligible; (2) highly controversial
environmental effects; (3) environmental effects that are uncertain,
unique, or unknown; and (4) the potential for significant cumulative
impacts when the proposed action is combined with other past, present,
and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's specified activity and
the potential extent and magnitude of takes of marine mammals
associated with that activity along with the extraordinary
circumstances listed in the Companion Manual for NOAA Administrative
Order (NAO) 216-6A and summarized above.
The evaluation of whether extraordinary circumstances (if present)
have the potential for significant environmental effects is limited to
the decision NMFS is responsible for, which is issuance of the
incidental take authorization. Potential effects of NMFS' action are
limited to those that would occur due to the authorization of
incidental take of marine mammals. NMFS prepared numerous EAs analyzing
the environmental impacts of the categories of activities encompassed
by CE B4, which resulted in Findings of No Significant Impacts (FONSIs)
and, in particular, numerous EAs prepared in support of issuance of
IHAs related to similar survey actions are part of NMFS' administrative
record supporting CE B4. These EAs demonstrate the issuance of a given
incidental harassment
[[Page 83659]]
authorization does not affect other aspects of the human environment
because the action only affects the marine mammals that are the subject
of the incidental harassment authorization.
Specifically for this action, NMFS independently evaluated the use
of the CE for issuance of COSW's IHA, which included consideration of
extraordinary circumstances. As part of that analysis, NMFS considered
whether this IHA issuance would result in cumulative impacts that could
be significant. In particular, the issuance of an IHA to COSW is
expected to result in minor, short-term behavioral effects on marine
mammal species due to exposure to underwater sound from site
characterization survey activities. Behavioral disturbance is possible
to occur intermittently in the vicinity of COSW's survey area during
the 1-year timeframe. Level B harassment will be reduced through use of
mitigation measures described herein. Additionally, as discussed
elsewhere, NMFS has determined that COSW's activities fall within the
scope of activities analyzed in GARFO's programmatic consultation
regarding geophysical surveys along the U.S. Atlantic coast in the
three Atlantic Renewable Energy Regions (completed June 29, 2021;
revised September 2021), which concluded surveys such as those planned
by COSW are not likely to adversely affect ESA-listed species or
adversely modify or destroy critical habitat. Accordingly, NMFS has
determined that the issuance of this IHA will result in no more than
negligible (as that term is defined by the Companion Manual for NAO
216-6A) adverse effects on species protected by the ESA and the MMPA.
Further, the issuance of this IHA will not result in highly
controversial environmental effects or result in environmental effects
that are uncertain, unique, or unknown because numerous entities have
been engaged in site characterization surveys that result in Level B
harassment of marine mammals in the United States. This type of
activity is well documented; prior authorizations and analysis
demonstrates issuance of an IHA for this type of action only affects
the marine mammals that are the subject of the specific authorization
and, thus, no potential for significant cumulative impacts are
expected, regardless of past, present, or reasonably foreseeable
actions, even though the impacts of the action may not be significant
by itself. Based on this evaluation, we concluded that the issuance of
the IHA qualifies to be categorically excluded from further NEPA
review.
Comment 5: Commenters object to allowing any takes to North
Atlantic right whales (NARW) due to the species' fragile status and
believe that preserving the existence of NARW warrants pausing offshore
development off the Atlantic coast. Commenters state that NMFS needs to
study the cumulative harassment of marine mammals and other listed
species, particularly the NARW whose existence are an integral part of
traditional lifeways and cultural practices. Commenters urge NMFS to
assess cumulative impacts to this most endangered species, including
the total number, speed, and distance of vessel trips required for
marine site characterization survey activities, for all concurrent
projects in the region. Commenter's also reference Thorne and Wiley's
(2024) paper stating that the conclusion highlights the need for
further study on marine mammal strandings and the cumulative impacts of
offshore wind.
Response: NMFS disagrees with the commenter's statement. NMFS
authorizes take of marine mammals incidental to marine site
characterization surveys but the renewal IHA issued to COSW does not
authorize the surveys themselves and does not authorize offshore wind
development. The purpose of the marine site characterization surveys is
to obtain sufficient data to meet BOEm guidelines for geophysical,
geotechnical, and geohazard information to support site
characterization, sight, and engineering design of future offshore wind
project facilities. While NMFS has the authority to modify, suspend, or
revoke an IHA if the IHA holder fails to abide by the conditions
prescribed therein (including, but not limited to, failure to comply
with monitoring or reporting requirements), or if NMFS determines that
(1) the authorized taking is having or is likely to have more than a
negligible impact on the species or stocks of affected marine mammals,
or (2) the prescribed measures are likely not or are not effecting the
least practicable adverse impact on the affected species or stocks and
their habitat, it is not within NMFS' jurisdiction to impose a blanket
moratorium on offshore wind development or to require cessation of the
marine site characterization on the basis of unsupported speculation.
NMFS recognizes and appreciates the importance of the NARW as an
integral part of traditional lifeways and cultural practices. But, NMFS
emphasizes that there is no credible scientific evidence available
suggesting that mortality and/or serious injury or Level A harassment
is a potential outcome of the planned survey activity. NMFS notes there
have never been reports of any serious injuries or mortalities of any
marine mammal associated with any marine site characterization surveys.
And, the commenter did not provide any compelling scientific evidence
to support their claim that the proposed IHA and specific activities
would lead to mortality or serious injury of NARWs.
The best available science indicates that Level B harassment, or
disruption of behavioral patterns, may occur as a result of COSW's
specified activities. This point has been well supported by other
agencies, including the Bureau of Ocean Energy Management and the
Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring
2023). A recent study by Thorne and Wiley (2024) reviewed spatio-
temporal patterns of strandings, mortalities, and serious injuries of
humpback whales along the U.S. East Coast from 2016-2022 and found
vessel strikes to be the major driver in the increase of humpback whale
strandings, mortalities, and serious injuries. Based upon the spatio-
temporal analysis, no evidence was found that offshore wind development
contributed to the increased number of strandings, serious injuries or
mortalities; for example, spatio-temporal patterns between strandings
and site assessment surveys did not seem associated. In fact, the
potential for vessel strike increased from 2016-2022 in association
with increased container vessel traffic that overlapped with whales in
new and shallow foraging areas. This potential for vessel strike also
seemed to increase with the increased presence of juvenile humpback
whales foraging off the Mid-Atlantic States.
Under the IHA, NMFS requires COSW to abide by vessel speed
restrictions and maintain separation distances between vessels and
marine mammals that are intended to minimize the risk of any potential
vessel strikes. NMFS is not suggesting the study by Thorne and Wiley
(2024) presents any final resolution of the issue and generically
agrees with the need for continued investigation on offshore wind
effects on marine mammals. However, that does not impact our findings
here for this IHA, or our determination that the specified activities
will have a negligible impact on marine mammals.
There is an ongoing unusual mortality event (UME) for humpback
whales along the Atlantic coast from Maine to Florida, which includes
animals stranded since 2016. Partial or full necropsy examinations were
conducted on approximately half of the whales. Necropsies were not
conducted on other
[[Page 83660]]
carcasses because they were too decomposed, not brought to land, or
stranded on protected lands (e.g., national and state parks) where
responders had limited or no access to the carcasses. Of the roughly 90
whales examined, about 40 percent had evidence of human interaction
(i.e., vessel strike or entanglement). The remaining 50 necropsied
whales either had an undetermined cause of death due to a limited
examination or decomposition of the carcass, or had other causes of
death (e.g., parasite-caused organ damage and starvation). Ongoing UMEs
are also occurring for NARW and minke whales, both since 2017. NMFS
will continue to gather data to help us determine the cause of death
for these stranded whales. Vessel strikes and entanglement in fishing
gear continue to be the greatest human threats to large whales.
We also refer to the GARFO 2021 Programmatic Consultation, which
finds that these survey activities are in general not likely to
adversely affect marine mammal species listed under the ESA (i.e.,
GARFO's analysis conducted pursuant to the ESA finds that marine
mammals are not likely to be taken at all (as that term is defined
under the ESA), much less be taken by serious injury or mortality).
That document is found at: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>. The impacts of
Level B harassment authorized here (i.e., behavioral disturbance) are
expected to have a negligible impact on the NARW population as well as
other potentially impacted marine mammal populations. NMFS has made the
required findings based on the best scientific information available
and has included mitigation measures to effect the least practicable
adverse impacts on NARWs and other potentially impacted marine mammals.
NMFS also notes the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean have been analyzed in the
past under section 7 of the ESA when NMFS engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion
for Bureau of Ocean Energy Management Lease and Site Assessment Rhode
Island, Massachusetts, New York, and New Jersey Wind Energy Areas
(<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed
activities include those for which NMFS issued previous IHAs (82 FR
31562, July 7, 2017; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10,
2021), which are similar to those planned by COSW under this current
IHA request.
For NMFS' response on cumulative impacts, please see our response
to Comment 4.
Comment 6: The Wampanoag Tribe of Gay Head (Aquinnah) (Tribe)
stated that NMFS continues to administer Section 7 consultations and
take permits without complying with Executive Order 13175 that requires
meaningful government-to-government consultation with Tribes on matters
that have implications for tribes, and requested that no IHAs are
renewed in the New York Bight until the issue is addressed.
Response: Executive Order 13175 directs Federal agencies to
establish procedures for meaningful consultation and coordination with
Tribal officials in the development of Federal policies that have
Tribal implications. 65 FR 67249 (Nov. 9, 2000). ``Policies that have
tribal implications'' refers to regulations, legislative comments or
proposed legislation, and other policy statements or actions that have
substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal Government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian Tribes. Additionally, the consultation
requirement set forth in Section 5 of Executive Order 13175 provides
that ``Each agency shall have an accountable process to ensure
meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' NMFS is committed
to carrying out its responsibilities under Executive Order 13175, as
implemented through NOAA Administrative Order 218-8 (Policy on
Government-to-Government Consultation with Federally-Recognized Indian
Tribes and Alaska Native Corporations) and the NOAA Tribal Consultation
Handbook. However, NMFS disagrees that renewal of the IHA for the take
of marine mammals incidental to HRG surveys in the New York Bight
should be suspended. We intend to engage with the Tribe going forward
to ensure that we satisfy our responsibilities under Executive Order
13175 and address to the extent possible (in context of the actions we
are responsible for) the Tribe's concerns regarding wind energy
development.
Comment 7: A commenter has requested that NMFS provide
documentation for its determination to add an additional 400 km of
trackline that was inadvertently excluded from the 2023 IHA--not
providing the factual basis for the conclusion would make the finding
arbitrary and capricious. The commenter further states that ``nearly
identical'' has not been defined in NOAA protocols and the standard is
subjective.
Response: Please see the Detailed description of the Activity in
the Federal Register notice of proposed IHA (89 FR 67592, August 21,
2024). The request from COSW to include the additional 400 km of
trackline is documented in this notice. NMFS has determined that the
inclusion of the additional 400 km to the remaining survey trackline is
a minor change that does not affect the analyses, mitigation and
monitoring requirements remained the same as those identified in the
initial IHA, NMFS's negligible impact determination on the affected
species and/or stocks remained the same and, further, the remaining
survey trackline for this renewal is less than the total trackline
included in the initial IHA. The maximum percent population for each
species is small relative to individual stock abundance (less than one
third) which meets the criteria for NMFS to make a negligible impact
determination for COSW's specified activities.
While ``nearly identical'' is not explicitly defined, NMFS believes
the plain language definition is adequate. The IHA renewal process
guidance on our website indicates that the applicant must clearly
describe any minor change in the activity and why the change will have
either no effect on the impacts to marine mammals, or will decrease the
type and/or amount of expected take. An example of an applicant that is
qualified for a renewal is an applicant conducting bird research at
three sites (resulting in behavioral harassment of pinnipeds) as
covered by the initial IHA. Sixty days prior to expiration of the
initial IHA, the applicant requests a renewal to authorize take
incidental to a second year conducting the same research, at the same
three sites, for the same duration, in the same seasons--with no other
known changes. An example of an applicant that is not qualified for
renewal is an applicant conducting bird research at three sites
(resulting in behavioral harassment of pinnipeds) as covered by the
initial IHA. Two months prior to the expiration of the initial IHA, the
applicant requests a renewal to authorize take incidental to a second
year conducting the same research, at the same three sites, for the
same duration, in the same seasons--but wishes to add one new site to
the research activity, which is associated with the need for additional
take authorization (i.e., higher numbers than the initial IHA).
Further, examples
[[Page 83661]]
illustrating activities that do and do not qualify for a renewal are
included on the website. NMFS has determined that the activities
planned in the renewal IHA are nearly identical to those identified in
the initial IHA, using the same survey equipment and number of survey
vessels planned for use and covering the same geographic region. COSW
will be using the same sparker systems (applied Acoustics Dura-Spark
UHD 400+400 Seismic Sound Source (400 tip/300-1,000 joules (J)) and the
Geo-Source 200-400 Marine Multi-Tip Sparker System (400 tip/300-1,000
J)) and implementing the same mitigation, monitoring, and reporting.
Since the addition of 400 km of trackline does not increase the take
beyond that analyzed or change the negligible impact determination,
NMFS has determined that this change is minor and does not affect the
previous analysis. For more information about the details and
conditions of the IHA renewal process, please visit <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>.
Comment 8: A commenter suggested NMFS should work with other
agencies to produce or commission an independent study about marine
mammal mortality on the East Coast, specifically to cross-reference PSO
data with the coordinates of marine mammal strandings to determine
whether there is a correlation between wind surveying activities and
strandings. The commenter states that using PSO data will improve the
best available science to predict and potentially prevent impacts to
marine mammals, and NMFS should refrain from issuing IHAs until the
agency can determine the cause of the marine mammal deaths.
Response: NMFS disagrees that the renewal IHA should be denied, as
we have made the necessary findings required by the MMPA for issuance
and supported them with the necessary analyses and best available
science. Neither the proposed IHA nor this final IHA allow mortality or
serious injury of marine mammals to be authorized. NMFS authorizes take
of marine mammals incidental to marine site characterization surveys
but does not authorize the surveys themselves. Therefore, while NMFS
has the authority to modify, suspend, or revoke an IHA if the IHA
holder fails to abide by the conditions prescribed therein (including,
but not limited to, failure to comply with monitoring or reporting
requirements), or if NMFS determines that (1) the authorized taking is
having or is likely to have more than a negligible impact on the
species or stocks of affected marine mammals, or (2) the prescribed
measures are likely not or are not effecting the least practicable
adverse impact on the affected species or stocks and their habitat, it
is not within NMFS' jurisdiction to impose a moratorium on offshore
wind development or to require surveys to cease on the basis of
unsupported speculation.
NMFS appreciates the suggestion to commission a study that would
cross-reference PSO data with coordinates of marine mammal strandings
to investigate a correlation between the two, but notes that
correlation is not equivalent to causation, especially if all potential
factors are not considered. The data collected by PSOs, and subsequent
analysis, provide the necessary information to inform an estimate of
the amount of take that occurred during the activity, better understand
the impacts of the activity on marine mammals, address the
effectiveness of monitoring and mitigation measures, and to adaptively
manage activities and mitigation in the future. Data reported includes
information on marine mammal sightings, activity occurring at time of
sighting, monitoring conditions, and if mitigation was employed. NMFS
has considered the best available science regarding the effect of wind
surveying activities and marine mammal strandings and has determined
there is no evidence that noise arising from offshore wind development-
related site characterization surveys could potentially cause marine
mammal stranding, mortality, or serious injury. There is no evidence
linking recent large whale mortalities to past or ongoing site
characterization surveys. The commenters offer no such evidence. NMFS
will continue to gather data to help us determine the cause of death
for stranded whales on the East Coast of the United States. We further
note the Marine Mammal Commission's recent statement: ``There continues
to be no evidence to link these large whale strandings to offshore wind
energy development, including no evidence to link them to sound emitted
during wind development-related site characterization surveys, known as
HRG surveys. Although HRG surveys have been occurring off New England
and the mid-Atlantic coast, HRG devices have never been implicated or
causatively-associated with baleen whale strandings.'' (Marine Mammal
Commission Newsletter, Spring 2023).
Of the strandings documented to date worldwide, NMFS is not aware
of any being attributed to the types of HRG equipment proposed for use
during COSW's surveys. Recently, there has been heightened interest in
HRG surveys relative to recent marine mammals strandings along the U.S.
East Coast. HRG surveys involve the use of certain sources to image the
ocean bottom, which are very different from seismic airguns used in oil
and gas surveys or tactical military sonar, in that they produce much
smaller impact zones. Marine mammals may respond to exposure to these
sources by, for example, avoiding the immediate area, which is why
offshore wind developers, like COSW, seek authorization for Level B
(behavioral) harassment. However, because of the combination of lower
source levels, higher frequency, narrower beam-width (for some
sources), and other factors, the area within which a marine mammal
might be expected to be behaviorally disturbed by HRG sources is much
smaller (by orders of magnitude) than the impact areas for seismic
airguns or the military sonar with which a small number of marine
mammal have been causally associated. Specifically, estimated
harassment zones for HRG surveys are typically less than 200 m (such as
those associated with the project), while the harassment zones for
military mid-frequency active sonar or seismic airgun surveys typically
extend for several kms ranging up to 10s of km. Further, because of
this much smaller ensonified area, any marine mammal exposure to HRG
sources is reasonably expected to be at significantly lower levels and
shorter duration (associated with less severe responses), and there is
no evidence suggesting that marine mammals exposed to HRG survey noise
are likely to be injured, much less strand, as a result. Of note, NMFS
has performed a thorough review of a report submitted by Rand (2023),
that includes measurements of the Geo-Marine Geo-Source 400 sparker,
and suggests that NMFS is assuming lower source and received levels
than is appropriate in its assessments of HRG impacts. NMFS has
determined that the values in this IHA are appropriate, based on the
model methodology (i.e., the assumed source level propagated using
spherical spreading) here predicting a peak level 3 dB louder than the
maximum measured peak level at the closest measurement range in Rand
(2023).
Also of note, in an assessment of monitoring reports for HRG
surveys received from 2021 and later, as compared to the takes of
marine mammals authorized, an average of fewer than 15 percent of all
species with authorized take have been detected within harassment
zones, with no more than 27 percent for any species
[[Page 83662]]
(common dolphins) and 20 percent or fewer for all other species. The
most common behavioral reaction to the HRG sound source reported was
``change direction'' though detections of ``no behavioral change''
occurred nearly twice as many times as ``change direction,'' if not
more.
Additionally, a recent paper by Thorne and Wiley (2024) reviewed
spatio-temporal patterns of strandings, mortalities, and serious
injuries of humpback whales along the U.S. East Coast from 2016-2022.
Humpback whales were chosen as a case study for this analysis because
of its ongoing UME and since Humpback whales strand more often than
other large whale species. Thorne and Wiley (2024) found vessel strikes
to be a major driver in the increase of humpback whale strandings,
mortalities, and serious injury along the U.S. East Coast. The
potential for vessel strike increased during the study period due to
increased vessel traffic in new foraging areas, the increased presence
of juvenile humpback whales, and humpback whale foraging in shallow
areas that overlap with vessel traffic. Based upon the spatio-temporal
analysis, no evidence was found that offshore wind development
contributed to the increased number of strandings over time. Future
studies should focus on gaining a greater understanding of spatial and
seasonal habitat use patterns of large whales, spatio-temporal changes
in prey abundance and distribution, and how habitat use and foraging
behavior affect the risk of vessel strike. Recently, NMFS was made
aware of a media article wherein a member of the public conducted a
statistical analysis on the correlation between offshore wind vessel
use and whale deaths along the U.S. East Coast (Climate Change
Dispatch, 2024). NMFS has long recognized that marine mammals
strandings have increased over the years, including increases in
strandings of three large whale species resulting in the declaration of
UMEs for minke, humpback, and NARW in 2018, 2017, and 2017
respectively. Offshore wind development has increased over the same
time period. However, NMFS does not ascribe much weight to the
analysis. The analysis presented in the Climate Change Dispatch article
was not peer-reviewed, and does not appear to separate other vessel
movement from offshore wind-related survey activities, did not consider
other known factors that are increasing ship strike risk in general
(e.g., Thorne and Wiley, 2024) or other factors leading to increased
strandings (e.g., entanglement, climate change), and the analysis did
not demonstrate that offshore wind vessel traffic or HRG surveys are
the cause of strandings. Overall, while NMFS considered this
information, the Climate Change Dispatch article did not provide new
information that links whale strandings to offshore wind vessel
movement or surveys.
Furthermore, NMFS does not expect that the generally short-term,
intermittent, and transitory marine site characterization survey
activities planned by COSW will create conditions of acute or chronic
acoustic exposure leading to long-term physiological impacts in whales.
The best available science indicates that Level B harassment (i.e.,
disruption of behavioral patterns) may occur as a result of COSW's
specified activities. We also refer to the Greater Atlantic Regional
Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds
that these survey activities are in general not likely to adversely
affect Endangered Species Act (ESA)-listed marine mammal species. That
document is found at <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>.
NMFS does not use PSO data to `predict and potentially prevent
impacts to marine mammals', but has reviewed the best available
scientific information about the occurrence of marine mammals,
including current density data and other relevant information, to
understand marine mammal densities in the planned survey area,
calculate take estimates, and develop mitigation measures. Habitat-
based density models produced by the Duke University Marine Geospatial
Ecology Laboratory (Roberts et al., 2016, Roberts et al., 2023)
represent the best available information regarding marine mammal
densities in the planned survey area. These density data incorporate
aerial and shipboard line-transect survey data from NMFS and other
organizations and incorporate data from numerous physiographic and
dynamic oceanographic and biological covariates, and controls for the
influence of sea state, group size, availability bias, and perception
bias on the probability of making a sighting. These density models were
originally developed for all cetacean taxa in the U.S. Atlantic in 2016
and models for all taxa were updated in 2022 (Roberts et al., 2016,
Roberts et al., 2023). More information is available online at <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>.
Marine mammal density estimates in the survey area (animals/km\2\)
were obtained using the most recent model results for all taxa. NMFS
takes seriously the risk of impact to marine mammals through survey
activities and has prescribed measures to ensure the least practicable
adverse impact on species or stocks and their habitat. The full list of
mitigation measures can be found in Condition 4 of the IHA and in the
Mitigation section of this notice. The mitigation measures included in
COSW's IHA are not unique, and data from prior IHAs support the
effectiveness of these mitigation measures. Level B harassment will be
reduced through use of mitigation measures described herein.
Comment 9: A commenter has stated that PSO reports did not address
uncertainties related to the cumulative impacts of ecological effects
of surveying activities for OSW including changes in migration,
breeding, nursing, needing, or sheltering patterns.
Response: PSO reports are not designed to address the cumulative
impacts of offshore wind surveying activities on marine mammals, but,
as required, help increase our understanding of marine mammals in the
area and the impacts of the activity on marine mammals. For NMFS'
response on cumulative impacts, please see our response to Comment 4.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which take is authorized here, including information on abundance,
status, distribution, and hearing, may be found in the Federal Register
notice of the proposed IHA (88 FR 24574, April 21, 2023) for the
initial IHA. NMFS has reviewed the monitoring data from the initial
IHA, the draft 2023 Stock Assessment Reports (SARs), which included
updates to certain stock abundances since the initial IHA was issued,
information on relevant UMEs, and other scientific literature. The
draft 2023 SAR updated the population estimate (N<INF>best</INF>) of
NARW 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 NARW 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
[[Page 83663]]
October 2023, NMFS released a technical report identifying that the
NARW 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 in this circumstance on the
lower SAR abundance estimate.
The population estimates (N<INF>best</INF>) also increased for the
North Atlantic stock of sperm whales, the Western North Atlantic
Offshore stock of common bottlenose dolphins, Western North Atlantic
stocks of Risso's dolphins, Atlantic spotted dolphins, and gray seals.
However, abundance estimates slightly decreased for the Western North
Atlantic stocks of common dolphins and harbor porpoises. NMFS has
determined there is no new information that affects which species or
stocks have the potential to be affected or the pertinent information
in the Description of the Marine Mammals in the Area of Specified
Activities contained in the supporting documents for the initial IHA.
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 take is
authorized may be found in the Notices of the Proposed (88 FR 24574,
April 21, 2023) and Final IHAs (88 FR 42322, June 30, 2023) for the
initial IHA. NMFS has reviewed the monitoring data from the initial
IHA, recent draft stock assessment reports, 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 Federal Register
Notice of the Final IHA (88 FR 42322, June 30, 2023) for the initial
IHA. Specifically, the source levels, days of operation, and marine
mammal density/occurrence data applicable to this authorization remain
unchanged from the initial IHA. Similarly, the stocks taken, methods of
take, and types of take remain unchanged from the initial IHA, as do
the number of takes, which are indicated below in table 1. The number
of takes authorized are a subset of the initial authorized takes that
better represent the amount of the remaining activity COSW has left to
complete. These estimated takes, which reflect the remaining survey
trackline, are indicated below in table 1.
Table 1--Authorized Number of Takes by Level B Harassment by Species and Stock and Percent of Take by Stock \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
2024 renewal IHA
--------------------------------------
2023 IHA Percentage
Species Scientific name Stock Abundance authorized of Estimate of
take trackline take for Max percent
requested requested population
in renewal trackline
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale........... Eubalaena glacialis.... Western Atlantic....... 340 24 63 15 \2\ 4.4
Fin whale............................ Balaenoptera physalus.. Western North Atlantic. 6,802 76 63 48 0.7
Sei whale............................ Balaenoptera borealis.. Nova Scotia............ 6,292 24 63 15 0.2
Minke whale.......................... Balaenoptera........... Canadian East Coastal.. 21,968 304 63 192 0.9
acutorostrata..........
Humpback whale....................... Megaptera novaeangliae. West Indies DPS........ 1,396 46 63 29 2.1
Sperm whale.......................... Physeter macrocephalus. North Atlantic......... 4,349 10 63 6 0.1
Risso's dolphin...................... Grampus griseus........ Western North Atlantic. 35,215 59 63 37 0.1
Long-finned pilot whale.............. Globicephala melas..... Western North Atlantic. 39,215 78 63 49 0.1
Atlantic white-sided dolphin......... Lagenorhynchus acutus.. Western North Atlantic. 93,233 427 63 269 0.3
Common dolphin....................... Delphinus delphis...... Western North Atlantic. 172,974 5,572 63 3,510 2.0
Atlantic spotted dolphin............. Stenella frontalis..... Western North Atlantic. 39,921 320 63 202 0.5
Common bottlenose dolphin, Offshore Tursiops truncates..... Western North Atlantic 62,851 1,316 62 816 1.3
stock. Offshore (occurs
within >20 m deep).
Common bottlenose dolphin, Northern Tursiops truncates..... Western North Atlantic 6,639 115 70 81 1.2
migratory coastal stock. Northern Migratory
Coastal (occurs within
<20 m deep).
Harbor porpoise...................... Phocoena phocoena...... Gulf of Maine/Bay of 95,543 1,912 63 1,205 1.3
Fundy Stock.
Harbor seal.......................... Phoca vitulina......... Western North Atlantic. 61,336 1,955 63 1,232 2.0
Gray seal \3\........................ Halichoerus grypus..... Western North Atlantic. 27,300 1,955 63 1,232 4.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2022)).
\2\ Based on the 2023 draft marine mammal stock assessment reports (SAR).
\3\ NMFS's stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 451,600. The annual mortality/serious injury given is for the total stock.
Description of Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures included as
requirements in this IHA are identical to those included in the Federal
Register notice announcing the issuance of the initial IHA (88 FR
42322, June 30, 2023) and the discussion of the least practicable
adverse impact determination included in that document remains
applicable and accurate.
The 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,
and the discussion of the least practicable adverse impact included in
the Federal Register notice of the proposed IHA remains accurate. NMFS
will require the following measures for this renewal IHA:
Visual Monitoring and Shutdown Zones
COSW must employ independent, dedicated, trained PSOs, meaning that
the PSOs must (1) be employed by a third-party observer provider, (2)
have no tasks other than to conduct observational effort, collect data,
and
[[Page 83664]]
communicate with and instruct relevant vessel crew with regard to the
presence of marine mammals and mitigation requirements (including brief
alerts regarding maritime hazards), and (3) have successfully completed
an approved PSO training course appropriate for geophysical surveys.
Visual monitoring must be performed by qualified, NMFS-approved PSOs.
PSO resumes must be provided to NMFS for review and approval prior to
the start of survey activities.
During survey operations (e.g., any day in 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 visual PSO must be
on duty on each source vessel and conducting visual observations at all
times during daylight hours (i.e., from 30 minutes (min) prior to
sunrise through 30 min following sunset). A minimum of two PSOs must be
on duty on each source vessel during nighttime hours. Visual monitoring
must begin no less than 30 min prior to ramp-up (described below) and
must continue until 1 hour after use of the sparker source ceases.
Visual PSOs shall coordinate to ensure 360[deg] visual coverage
around the vessel from the most appropriate observation posts and shall
conduct visual observations using binoculars and the naked eye while
free from distractions and in a consistent, systematic, and diligent
manner. PSOs shall establish and monitor applicable shutdown zones (see
below). These zones shall be based upon the radial distance from the
sparker source (rather than being based around the vessel itself).
Two shutdown zones are defined, depending on the species and
context. Here, an extended shutdown zone encompassing the area at and
below the sea surface out to a radius of 500 m from the sparker source
(0-500 m) is defined for NARW. For all other marine mammals, the
shutdown zone encompasses a standard distance of 100 m (0-100 m) during
the use of the sparker. Any observations of marine mammals by crew
members aboard any vessel associated with the survey shall be relayed
to the PSO team.
Visual PSOs may be on watch for a maximum of 4 consecutive hours
followed by a break of at least 1 hour between watches and may conduct
a maximum of 12 hours of observation per 24-hr period.
Pre-Start Clearance and Ramp-Up Procedures
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
sparker sources when technically feasible. Operators should ramp up
sparker to half power for 5 min and then proceed to full power. A 30
min pre-start clearance observation period of the shutdown zones must
occur prior to the start of ramp-up. The intent of the pre-start
clearance observation period (30 min) is to ensure no marine mammals
are within the shutdown zones prior to the beginning of ramp-up. The
intent of the ramp-up is to warn marine mammals of pending operations
and to allow sufficient time for those animals to leave the immediate
vicinity. All operators must adhere to the following pre-start
clearance and ramp-up requirements:
<bullet> 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 min prior to the planned ramp-up in
order to allow the PSOs time to monitor the shutdown zones for 30 min
prior to the initiation of ramp-up (pre-start clearance). During this
30 min pre-start clearance period the entire shutdown zone must be
visible, except as indicated below;
<bullet> Ramp-ups shall be scheduled so as to minimize the time
spent with the source activated;
<bullet> 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;
<bullet> 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; and
<bullet> 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.
The pre-start clearance requirement is waived for small delphinids
and pinnipeds. Detection of a small delphinid (individual belonging to
the following genera of the Family Delphinidae: Steno, Delphinus,
Lagenorhynchus, Stenella, and Tursiops) 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.
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 may use best professional judgment in making the decision
to call for a shutdown.
<bullet> Ramp-up may not be initiated if any marine mammal to which
the pre-start clearance requirement applies is within the shutdown
zone. If a marine mammal is observed within the shutdown zone during
the 30 min 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 min for all
baleen whale species and sperm whales, 15 min for all other species).
<bullet> PSOs must monitor the shutdown zones 30 min 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.
<bullet> 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 min prior to beginning ramp-up.
Sparker activation may only occur at night where operational planning
cannot reasonably avoid such circumstances.
If the acoustic source is shut down for brief periods (i.e., <30
min) 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.
Shutdown Procedures
All operators must adhere to the following shutdown requirements:
<bullet> Any PSO on duty has the authority to call for shutdown of
the sparker source if a marine mammal is detected within the applicable
shutdown zone;
<bullet> The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
source to ensure that shutdown commands are conveyed swiftly while
allowing PSOs to maintain watch;
<bullet> 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 sparker source
must be immediately deactivated and any dispute resolved only following
deactivation; and
<bullet> Two shutdown zones are defined, depending on the species
and context.
[[Page 83665]]
An extended shutdown zone encompassing the area at and below the sea
surface out to a radius of 500 m from the sparker source (0-500 m) is
defined for NARW. For all other marine mammals, the shutdown zone
encompasses a standard distance of 100 m (0-100 m) during the use of
the sparker.
The shutdown requirement is waived for small delphinids and
pinnipeds. If a small delphinid (individual belonging to the following
genera of the Family Delphinidae: Steno, Delphinus, Lagenorhynchus,
Stenella, and Tursiops) 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.
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 may use best professional judgment
in making the decision to call for a shutdown.
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 min for all baleen
whale species and sperm whales, 15 min for all other species) with no
further detection of the marine mammal.
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 (158 m), shutdown must occur.
Vessel Strike Avoidance
Crew and supply vessel personnel must use an appropriate reference
guide that includes identifying information on all marine mammals that
may be encountered. 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.
Vessel operators and crews must maintain a vigilant watch for all
marine mammals and slow down, stop their vessel(s), or alter course, as
appropriate and regardless of vessel size, to avoid striking any marine
mammals. 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 are detailed below). 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 NARW, other whale (defined in this
context as sperm whales or baleen whales other than NARWs), or other
marine mammals.
All survey vessels, regardless of size, must observe a 10-knots
(kn) (18.52-km/h) speed restriction in specific areas designated by
NMFS for the protection of NARWs from vessel strikes. These include all
SMAs established under 50 CFR 224.105 (when in effect), any DMAs (when
in effect), and Slow Zones. See <a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales</a> for specific detail regarding these areas.
<bullet> All vessels must reduce speed to 10 kn (18.52 km/h) or
less when mother/calf pairs, pods, or large assemblages of cetaceans
are observed near a vessel.
<bullet> All vessels must maintain a minimum separation distance of
500 m from NARWs, baleen whales (except humpback and minke), sperm
whales, and any unidentified large whales. If a NARW, baleen whale
(except humpback and minke), sperm whale, and any unidentified large
whale is sighted within the relevant separation distance, the vessel
must steer a course away at 10 kn (18.52 km/h) 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 NARW, the vessel operator
must assume that it is a NARW and take appropriate action.
<bullet> All vessels must maintain a minimum separation distance of
100 m from all humpback and minke whales.
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel).
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel must take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area, reduce speed and shift
the engine to neutral). This does not apply to any vessel towing gear
or any vessel that is navigationally constrained.
<bullet> Members of the PSO team will consult NMFS NARW reporting
system and Whale Alert, daily and as able, for the presence of NARWs
throughout survey operations, and for the establishment of DMAs and/or
Slow Zones. It is COSW's responsibility to maintain awareness of the
establishment and location of any such areas and to abide by these
requirements accordingly.
Seasonal Operating Requirements
As described above, a section of the survey area partially overlaps
with a portion of a NARW SMA off the port of New York/New Jersey. This
SMA is active from November 1 through April 30 of each year. The survey
vessel, regardless of length, would be required to adhere to vessel
speed restrictions (<10 kn (18.52 km/h)) when operating within the SMA
during times when the SMA is active (see table 4 of the initial IHA (88
FR 42322, June 30, 2023). Based on our evaluation of the applicant's
planned measures, as well as other measures considered by NMFS, NMFS
has determined that the planned mitigation measures provide the means
of effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved
[[Page 83666]]
understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring must be performed by qualified, NMFS-approved
PSOs. COSW must submit PSO resumes for NMFS review and approval prior
to commencement of the survey. Resumes should include dates of training
and any prior NMFS approval, as well as dates and description of last
experience, and must be accompanied by information documenting
successful completion of an acceptable training course.
For prospective PSOs not previously approved, or for PSOs whose
approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, who would coordinate
duty schedules and roles for the PSO team and serve as primary point of
contact for the vessel operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.
A ``trained lookout'' may be used on a space-limited nearshore
vessel (generally operating in water less than 20 m depth for no more
than 12 hours/day) during required breaks for the approved PSO on duty.
Project-specific training must be conducted for all vessel crew with
``lookout'' responsibilities prior to the start of a survey and during
any changes in crew such that all relevant survey personnel are fully
aware and understand the mitigation, monitoring, and reporting
requirements. All vessel crew members operating as a trained lookout
must be briefed in the identification of protected species that may
occur in the survey area and in relevant mitigation requirements.
Reference materials must be available aboard all project vessels for
identification of protected species. Should a mitigation action be
taken, the Trained Lookout will immediately notify the off-watch PSO to
ensure that the appropriate response was taken and sightings and
mitigation measures are properly documented (i.e., if shutdown was
called for or avoidance measures for large whales/vessel strike
avoidance taken, the Trained Lookout immediately notifies the off-watch
PSO). If the survey is operating within a DMA or Slow Zone, the survey
may only operate with a PSO on-watch.
At least one PSO aboard each acoustic source vessel must have a
minimum of 90 days at-sea experience working in the role, with no more
than 18 months elapsed since the conclusion of the at-sea experience.
One PSO with such experience must be designated as the lead for the
entire PSO team and serve as the primary point of contact for the
vessel operator. (Note that the responsibility of coordinating duty
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the
lead PSO must devise the duty schedule such that experienced PSOs are
on duty with those PSOs with appropriate training but who have not yet
gained relevant experience.
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or more)
a written and/or oral examination developed for the training program.
PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
COSW must work with the selected third-party PSO provider to ensure
PSOs have all equipment (including backup equipment) needed to
adequately perform necessary tasks, including accurate determination of
distance and bearing to observed marine mammals, and to ensure that
PSOs are capable of calibrating equipment as necessary for accurate
distance estimates and species identification. Such equipment, at a
minimum, shall include:
<bullet> At least one thermal (infrared) imagine device suited for
the marine environment;
<bullet> Reticle binoculars (e.g., 7 x 50) of appropriate quality
(at least one per PSO, plus backups);
<bullet> Global Positioning Units (GPSs) (at least one plus
backups);
<bullet> Digital cameras with a telephoto lens that is at least
300-mm or equivalent on a full-frame single lens reflex, also known as
an SLR (at least one plus backups). The camera or lens should also have
an image stabilization system;
<bullet> Equipment necessary for accurate measurement of distances
to marine mammal;
[[Page 83667]]
<bullet> Compasses (at least one plus backups);
<bullet> Means of communication among vessel crew and PSOs; and
<bullet> Any other tools deemed necessary to adequately and
effectively perform PSO tasks.
The equipment specified above may be provided by an individual PSO,
the third-party PSO provider, or the operator, but COSW is responsible
for ensuring PSOs have the proper equipment required to perform the
duties specified in the IHA.
The PSOs will be responsible for monitoring the waters surrounding
the survey vessel to the farthest extent permitted by sighting
conditions, including Shutdown Zones, during all HRG survey operations.
PSOs will visually monitor and identify marine mammals, including those
approaching or entering the established Shutdown Zones during survey
activities. It will be the responsibility of the PSO(s) on duty to
communicate the presence of marine mammals as well as to communicate
the action(s) that are necessary to ensure mitigation and monitoring
requirements are implemented as appropriate.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to Shutdown Zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, appropriate night-vision devices (e.g.,
night-vision goggles with thermal clip-ons and infrared technology)
would be used. Position data would be recorded using hand-held or
vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs must also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources and between acquisition periods, to the maximum
extent practicable. Any observations of marine mammals by crew members
aboard the vessel associated with the survey would be relayed to the
PSO team. Data on all PSO observations would be recorded based on
standard PSO collection requirements (see Reporting Measures). This
would include dates, times, and locations of survey operations; dates
and times of observations, location and weather; details of marine
mammal sightings (e.g., species, numbers, behavior); and details of any
observed marine mammal behavior that occurs (e.g., noted behavioral
disturbances). Members of the PSO team shall consult the NMFS NARW
reporting system and Whale Alert, daily and as able, for the presence
of NARWs throughout survey operations.
Reporting Measures
COSW shall submit a draft comprehensive report to NMFS on all
activities and monitoring results within 90 days of the completion of
the survey or expiration of the IHA, whichever comes sooner. The report
must describe all activities conducted and sightings of marine mammals,
must provide full documentation of methods, results, and interpretation
pertaining to all monitoring, and must summarize the dates and
locations of survey operations and all marine mammals sightings (dates,
times, locations, activities, associated survey activities). The draft
report shall also include geo-referenced, time-stamped vessel
tracklines for all time periods during which acoustic sources were
operating. Tracklines should include points recording any change in
acoustic source status (e.g., when the sources began operating, when
they were turned off, or when they changed operational status such as
from full array to single gun or vice versa). GIS files shall be
provided in Environmental Systems Research Institute, Inc. shapefile
format and include the Coordinated Universal Time date and time,
latitude in decimal degrees, and longitude in decimal degrees. All
coordinates shall be referenced to the WGS84 geographic coordinate
system. In addition to the report, all raw observational data shall be
made available. The report must summarize the information. A final
report must be submitted within 30 days following resolution of any
comments on the draft report. All draft and final marine mammal
monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#065654284f5256284b69686f7269746f686154637669747275466869676728616970"><span class="__cf_email__" data-cfemail="9acac8b4d3cecab4d7f5f4f3eef5e8f3f4fdc8ffeaf5e8eee9daf4f5fbfbb4fdf5ec">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#bdd3d0dbce93dadccf93d4d3ded4d9d8d3c9dcd190c9dcd6d8fdd3d2dcdc93dad2cb"><span class="__cf_email__" data-cfemail="a7c9cac1d489c0c6d589cec9c4cec3c2c9d3c6cb8ad3c6ccc2e7c9c8c6c689c0c8d1">[email protected]</span></a>
and <a href="/cdn-cgi/l/email-protection#baf3eeea94d2d3d6cefad4d5dbdb94ddd5cc"><span class="__cf_email__" data-cfemail="eba2bfbbc58382879fab85848a8ac58c849d">[email protected]</span></a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances. At a minimum, the following
information must be recorded:
1. Vessel names (source vessel), vessel size and type, maximum
speed capability of vessel;
2. Dates of departures and returns to port with port name;
3. PSO names and affiliations;
4. Date and participants of PSO briefings;
5. Visual monitoring equipment used;
6. PSO location on vessel and height of observation location above
water surface;
7. Dates and times (Greenwich Mean Time (GMT)) of survey on/off
effort and times corresponding with PSO on/off effort;
8. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
9. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval;
10. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
11. Water depth (if obtainable from data collection software);
12. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
13. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions);
14. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.); and
15. Upon visual observation of any marine mammal, the following
information must be recorded:
a. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
b. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
c. PSO who sighted the animal;
d. Time of sighting;
e. Initial detection method;
f. Sightings cue;
[[Page 83668]]
g. Vessel location at time of sighting (decimal degrees);
h. Direction of vessel's travel (compass direction);
i. Speed of the vessel(s) from which the observation was made;
j. Identification of the animal (e.g., genus/species, lowest
possible taxonomic level or unidentified); also note the composition of
the group if there is a mix of species;
k. Species reliability (an indicator of confidence in
identification);
l. Estimated distance to the animal and method of estimating
distance;
m. Estimated number of animals (high/low/best);
n. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
o. Description (as many distinguishing features as possible of each
individual seen, including length, shape, color, pattern, scars, or
markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
p. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior before and after point of closest approach);
q. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
r. Equipment operating during sighting;
s. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and,
t. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a NARW is observed at any time by PSOs or personnel on the
project vessel, during surveys or during vessel transit, COSW must
report the sighting information to the NMFS NARW Sighting Advisory
System (866-755-6622) within 2 hours of occurrence, when practicable,
or no later than 24 hours after occurrence. NARW sightings in any
location may also be reported to the U.S. Coast Guard via channel 16
and through the Whale Alert app (<a href="http://www.whalealert.org">http://www.whalealert.org</a>).
In the event that personnel involved in the survey activities
discover an injured or dead marine mammal, the incident must be
reported to NMFS as soon as feasible by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#afc1c2c9dc81c8cedd81c6c1ccc6cbcac1dbcec382dbcec4caefc1c0cece81c8c0d9"><span class="__cf_email__" data-cfemail="dab4b7bca9f4bdbba8f4b3b4b9b3bebfb4aebbb6f7aebbb1bf9ab4b5bbbbf4bdb5ac">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#9dcdcfb3d4c9cdb3d0f2f3f4e9f2eff4f3facff8edf2efe9eeddf3f2fcfcb3faf2eb"><span class="__cf_email__" data-cfemail="87d7d5a9ced3d7a9cae8e9eef3e8f5eee9e0d5e2f7e8f5f3f4c7e9e8e6e6a9e0e8f1">[email protected]</span></a>). The report must include the
following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
In the event of a vessel strike of a marine mammal by any vessel
involved in the activities, COSW must report the incident to NMFS by
phone (866-755-6622) and by email (<a href="/cdn-cgi/l/email-protection#8fe1e2e9fca1e8eefda1e6e1ece6ebeae1fbeee3a2fbeee4eacfe1e0eeeea1e8e0f9"><span class="__cf_email__" data-cfemail="77191a110459101605591e19141e13121903161b5a03161c12371918161659101801">[email protected]</span></a>
and <a href="/cdn-cgi/l/email-protection#6a3a3844233e3a44270504031e051803040d380f1a05181e192a04050b0b440d051c"><span class="__cf_email__" data-cfemail="2b7b7905627f7b05664445425f445942454c794e5b44595f586b45444a4a054c445d">[email protected]</span></a>) as soon as feasible. The report
would include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and
12. To the extent practicable, photographs or video footage of the
animal(s).
Determinations
COSW'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 required mitigation and related
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 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 158 m (rounded up from the 157.7 m Level B
harassment isopleth) from a three sparker array with 400 tips (either
Geo-Source 200-400 or Applied Acoustics Dura-Spark UHD). Although this
distance is assumed for all survey activity evaluated here and in
estimating authorized take numbers, in reality, much of the survey
activity would involve use of acoustic sources with a reduced acoustic
harassment zone 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.
NMFS authorizes incidental take of small numbers of marine mammals
from specified activities that are a subset of, but otherwise identical
to, those analyzed in the initial IHA and to require mitigation,
monitoring, and reporting measures that are also identical to those in
the initial IHA. The number of takes by Level B harassment is less than
that authorized in the initial IHA. In the initial IHA, NMFS determined
that COSW's specified activities would have a negligible impact on the
affected species and/or stocks and the authorized take for each stock
would be small relative to individual stock abundance (less than one
third).
NMFS has concluded that there is no new information suggesting that
our analysis or findings should change from those reached for the
initial IHA. This includes consideration of the estimated abundance of
one stock increasing slightly. Specifically, NMFS is authorizing 15
takes of NARW by Level B harassment only, and the impacts resulting
from the project's activities are neither reasonably expected nor
reasonably likely to adversely affect the stock through effects on
annual rates of recruitment or survival. 15 takes of NARW equates to
approximately 4.4 percent of the stock abundance, if each incident of
take is assumed to accrue to a separate individual whale.
Based on the information and analysis contained here and in the
referenced documents, NMFS has determined the following: (1) the
required mitigation
[[Page 83669]]
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) COSW's activities will
not have an unmitigable adverse impact on taking for subsistence
purposes as no relevant subsistence uses of marine mammals are
implicated by this action, and; (5) appropriate monitoring and
reporting requirements are included.
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.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally whenever we propose to authorize take for
endangered or threatened species.
NMFS' Office of Protected Resources is proposing to authorize take
of four species of marine mammals that are listed under the ESA (i.e.,
NARW, fin whale, sei whale, and sperm whale) and has determined these
activities fall within the scope of activities analyzed in the NMFS
Greater Atlantic Regional Fisheries Office 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).
Renewal
NMFS has issued a renewal IHA to COSW for the take of marine
mammals incidental to conducting marine site characterization with HRG
surveys off the coast of New Jersey and New York in the New York Bight
from July 1, 2024, through June 30, 2025.
Dated: October 10, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-23984 Filed 10-16-24; 8:45 am]
BILLING CODE 3510-22-P
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