Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; issuance of an incidental harassment authorization.

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 Vineyard Northeast, LLC (Vineyard Northeast) to incidentally harass marine mammals incidental to marine site characterization surveys offshore from Massachusetts to New Jersey in the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas) and associated offshore export cable corridor (OECC) routes.

DATES:

This renewal IHA is effective from July 27, 2024, through July 26, 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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. In case of problems accessing these documents, see FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT:

Jessica Taylor, Office of Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, an IHA is issued.

Authorization for incidental takings shall be granted if NMFS finds the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to here as “mitigation measures”). Monitoring and reporting of such takings are also required. The meaning of key terms such as “take,” “harassment,” and “negligible impact” can be found in section 3 of the MMPA (16 U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.

NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial IHA, NMFS described the circumstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the 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:

• An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (e.g., reduced effort) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take).
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.

Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.

An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

On July 27, 2022, NMFS issued an IHA (hereafter, referred to as the 2022 IHA) to Vineyard Northeast to take marine mammals incidental to marine site characterization surveys offshore from Massachusetts to New Jersey, in the Lease Areas and potential OECC routes to landfall locations, effective from July 27, 2022, through July 26, 2023 (87 FR 52913, August 30, 2022). On April 23, 2023, NMFS received a request from Vineyard Northeast to issue an IHA to take marine mammals incidental to continued marine site characterization surveys offshore from Massachusetts to New Jersey, in the BOEM Lease Areas and potential OECC routes. Although the IHA renewal requirements were otherwise satisfied, NMFS determined that the availability of updated marine mammal density data (Roberts et al., 2023), upon which the take estimates were based, for all species in the Project Area warranted updated analysis and, therefore, the issuance of a new IHA (hereafter, referred to as the 2023 IHA) instead of a renewal IHA, as described in the Federal Register notice for the proposed 2023 IHA (88 FR 40212, June 21, 2023). The 2023 IHA, i.e., the initial IHA was issued to Vineyard Northeast with effective dates of July 27, 2023 through July 26, 2024 (88 FR 50117, August 1, 2023).

On April 29, 2024, NMFS received a request from Vineyard Northeast for the renewal of the 2023 IHA. Due to unanticipated delays, Vineyard Northeast will not be able to complete the surveys before the expiration date of the 2023 IHA. The activities for which incidental take was requested consisted of a subset of the identical activities associated with the 2023 IHA. As required, Vineyard Northeast also provided a preliminary monitoring report, which demonstrated that they implemented the required marine mammal mitigation and monitoring and did not exceed the levels of take authorized under the 2023 IHA. These monitoring results are available to the public on our website: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. The notice of the proposed renewal IHA was published for public comment on June 18, 2024 (89 FR 51501).

Description of the Specified Activity and Anticipated Impacts

Vineyard Northeast's 2023 IHA authorized take of marine mammals incidental to marine site characterization surveys, including high-resolution geophysical (HRG) surveys, offshore from Massachusetts to southern New Jersey, specifically within the Lease Areas and along potential submarine OECCs. The purpose of these surveys are to obtain an assessment of seabed (geophysical, geotechnical, and geohazard), ecological, and archeological conditions within the footprint of the planned offshore wind facility development area. Surveys are also conducted to inform and support engineering design and to map unexploded ordnance. While actively surveying, the vessel operates at a maximum speed of 4 knots (4.6 miles per hour (mph) or 7.4 kilometers per hour (km/h)). Vineyard Northeast's 2023 survey plan included 37,360 km of track line over 467 planned survey days. However Vineyard Northeast actually completed only 860 km of track line over 11 survey days prior to the request for renewal, representing approximately 2 percent of the total planned survey effort.

Under the renewal IHA, Vineyard Northeast plans to continue to conduct survey activities over the remaining approximately 36,500 km of track line that was not completed in 2023. These surveys will be conducted over up to approximately 456 survey days using a maximum of four vessels operating concurrently within the Lease Areas and OECCs. A “survey day” is defined as a 24-hour (hr) activity period in which active HRG acoustic sources are used. This schedule is inclusive of any inclement weather downtime and crew transfers. The number of survey days is calculated as the number of days needed to reach the overall level of effort required to meet survey objectives assuming any single vessel covers, on average, 80 km (49.7 miles) of survey track line per 24 hours of operations.

The potential impacts of Vineyard Northeast's planned activities on marine mammals involve potential acoustic stressors and are unchanged from the impacts described in the Federal Register notice for the proposed 2023 IHA (88 FR 40212, June 21, 2023), which relies upon information in the notice of the proposed 2022 IHA (87 FR 30872, May 20, 2022). Underwater sound, resulting from particular components of Vineyard Northeast'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 will not be completed by the expiration date of the 2023 IHA. The renewal IHA authorizes incidental take, by Level B harassment, only of 19 species (comprising 20 stocks) of marine mammals for a subset of marine site characterization survey activities to be completed in 1 year, in the same area, using survey methods identical to those conducted under the 2023 IHA. Neither Vineyard Northeast nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. Take by Level A harassment (injury) is unlikely, even absent mitigation, based on the characteristics of the signals produced by the acoustic sources planned for use. Therefore, the anticipated effects on marine mammals and the affected stocks also remain the same. All mitigation, monitoring, and reporting measures would remain exactly as described in the Federal Register notice for the issued 2023 IHA (88 FR 50117, August 1, 2023) and the notice of the proposed 2022 IHA (87 FR 52913, August 30, 2022).

Detailed Description of the Activity

A detailed description of the marine site characterization survey activities for which incidental take is authorized here may be found in the Federal Register notice of the proposed 2023 IHA (88 FR 40212, June 21, 2023), which relies upon information in the notice of the proposed 2022 IHA (87 FR 30872, May 20, 2022). The specific geographic region and specified activities, including the types of survey equipment and number of survey vessels planned for use, are identical to those described in the previous notices, with the exception of the reduction in the size of the survey area since a small subset of the survey work planned under the 2022 IHA was completed. The renewal would be effective for a period not exceeding 1 year from the date of expiration of the initial IHA.

Comments and Responses

A notice of NMFS' proposal to issue a renewal IHA to Vineyard Northeast was published in the Federal Register on June 18, 2024 (89 FR 51501). That notice either described, or referenced descriptions of, Vineyard Northeast's survey activity, the marine mammal species that may be affected by the activity, the anticipated effects on marine mammals and their habitat, estimated amount and manner of take, and proposed mitigation, monitoring and reporting measures.

During the 15-day public comment period, NMFS received 4 public comment letters from three individuals and one from a non-governmental organization (NGO), Clean Ocean Action (COA). NMFS has reviewed all public comments received on the Vineyard Northeast HRG renewal IHA. All relevant, substantive comments, and NMFS' responses, are provided below. Comments indicating general support for or opposition to offshore wind construction or impacts to other non-marine mammal species, except inasmuch as they may be relevant to impacts to marine mammal prey, are not relevant to the proposed action and therefore were not considered and are not addressed here. The comments and recommendations are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Please see the comment submissions for full details regarding the recommendations and supporting rationale.

Comment 1: A commenter recommended that NMFS increase the size of all pre-start clearance, separation, and shutdown zones to 500 meters (m) for all ESA-listed baleen whales.

Response: NMFS does not concur with this recommendation, and does not adopt it. The NMFS Greater Atlantic Regional Fisheries Office (GARFO) 2021 Offshore Wind Site Assessment Survey Programmatic ESA consultation (see 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 ) determined that a 500-m shutdown zone for North Atlantic right whales or unidentified large whales and a 100-m shutdown zone for all other ESA-listed whales is sufficient to minimize exposure to noise from HRG acoustic sources that could be disturbing. Accordingly, NMFS has adopted this shutdown zone size for all baleen whale species, other than the North Atlantic right whale. The commenter does not provide additional scientific information for NMFS to consider to support the recommendation to expand the shutdown zone for baleen whales. Given that these surveys are relatively low impact, NMFS has determined that an increase in the size of the shutdown zone for ESA-listed baleen whales (excluding North Atlantic right whales) during HRG surveys is not warranted, and the commenter provides no evidence to the contrary.

Comment 2: Several commenters expressed general concern for North Atlantic right whales and impacts from the proposed survey activities, and specifically concern that the proposed renewal IHA and its associated specified activities would lead to mortality (death) of marine mammals.

Response: NMFS appreciates the commenters' general concern for North Atlantic right whales. 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 site characterization surveys. The best available science indicates that Level B harassment, or disruption of behavioral patterns, may occur as a result of Vineyard Northeast's specified activities. 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: 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. Additionally, NMFS cannot authorize mortality or serious injury via an IHA, and such taking is prohibited under Condition 3(c) of the IHA and may result in modification, suspension, or revocation of the IHA. The impacts of Level B harassment ( i.e., behavioral disturbance) are expected to have a negligible impact on the North Atlantic right whale 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 impact on North Atlantic right whales and other potentially impacted marine mammals.

Comment 3: A commenter claims that NMFS should be required to conduct further NEPA analysis for the project, considering the cumulative effects of the proposed IHA relative to other authorized takes in the area and adjust permitted activities accordingly. The commenter further indicated that NMFS does not justify why extraordinary circumstances do not apply and indicates that lack of this justification warrants NEPA analysis further than a Categorical Exclusion.

Response: NMFS does not agree with the commenter. A CE is 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 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 demonstrate 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.

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. While there may be environmental effects associated with the underlying action, 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 IHA does not affect other aspects of the human environment because the action only affects the marine mammals that are the subject of the IHA. These EAs also addressed factors in 40 CFR 1508.27 regarding the potential for significant impacts and demonstrate the issuance of IHA for the categories of activities encompassed by CE B4 do not individually or cumulatively have a significant effect on the human environment.

Specifically for this action, NMFS plans to rely upon the previously issued CE for the 2023 IHA. NMFS independently evaluated the use of the CE for issuance of Vineyard Northeast's 2023 IHA, which included consideration of extraordinary circumstances. As part of that analysis, NMFS considered whether the 2023 IHA issuance would result in cumulative impacts that could be significant. The issuance of the 2023 IHA to Vineyard Northeast 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, and this determination remains relevant for the current IHA. Behavioral disturbance is possible to occur intermittently in the vicinity of Vineyard Northeast'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 Vineyard Northeast'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 Vineyard Northeast are not likely to adversely affect endangered listed species or adversely modify or destroy critical habitat. Accordingly, NMFS has determined that the issuance of this renewal 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.

Comment 4: A commenter 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 “it is not clear how long the proposed activities would span given past delays.”

Response: NMFS disagrees with the commenter that an LOA would be more appropriate for the planned survey activities than an IHA. All IHAs issued, whether an initial IHA or a renewal, are valid for a period of not more than 1 year. Vineyard Northeast's request for the initial IHA indicated a project duration of 1 year. As delays may be encountered, applicants may apply for a renewal IHA if the work under the initial IHA is not able to be completed within the effective period of the authorization. In order to qualify for a renewal IHA, the proposed renewal must consist of up to another 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. Vineyard Northeast's request falls under the latter requirements and the necessary preliminary monitoring data collected under the initial IHA were provided. Therefore, Vineyard Northeast's request is appropriate for a renewal IHA.

Regarding clarification on authorizations, as described on our website, IHAs are 1-year authorizations and Incidental Take Regulations (ITR) are 5-year regulations that allow for the issuance of LOA. An ITR must be used if authorization of take by mortality is necessary. However, both options are available for applicants requesting authorization of harassment only. While applicants may request a 5-year regulation for HRG survey activities, NMFS has not received any such requests to date and there is no expectation presented in the MMPA or Congressional record that activities continuing for more than 1 year must seek ITR and authorization under 101(a)(5)(A) of the MMPA. Therefore, a determination of which option to take is not dependent on any expectation regarding whether the activity will continue for more than 1 year or not.

Comment 5: Multiple commenters provided general concerns regarding recent marine mammal stranding events on the Atlantic Coast, including speculation that the strandings may be related to wind energy development-related activities. Commenters further urged NMFS to “reject Vineyard Northeast's application to renew its IHA” and postpone issuing IHAs for any wind energy development-related activities until NMFS can “definitively” determine the cause of the recent strandings.

Response: NMFS authorizes take of marine mammals incidental to construction activities and marine site characterization surveys, provided the necessary findings are made, but does not authorize the activities 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 ( e.g., 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 delay offshore wind development or to require activities to cease.

NMFS reiterates that there is no evidence that acoustic noise resulting from offshore wind development-related activities could potentially cause marine mammal stranding, and there is no evidence linking recent marine mammal mortalities and currently ongoing offshore wind development activities. This point has been well supported by other agencies, including BOEM and the Marine Mammal Commission (Marine Mammal Commission Newsletter, Spring 2023). In addition, a recent study (Thorne and Wiley, 2024) reviewed spatiotemporal patterns of strandings, mortalities, and serious injuries of humpback whales along the US east coast from 2016-2022 and found vessel strikes to be the major driver in the increase of humpback whale strandings, mortalities, and serious injury. Based upon the spatiotemporal analysis, no evidence was found that offshore wind development played a role in the increased number of strandings over time; for example, spatiotemporal 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 renewal IHA, NMFS would require Vineyard Northeast to abide by vessel speed restrictions and maintain separation distances between vessels and marine mammals that would minimize the risk of any potential vessel strikes.

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 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 North Atlantic right whales 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.

Comment 6: A commenter claims that issuance of the renewal IHA violates the Endangered Species Act (ESA) as the planned survey activities would result in “impacts on the ecology” of the area.

Response: NMFS disagrees with commenters that the renewal IHA violates the ESA. Under section 7(a)(2) of the ESA, Federal agencies are required to consult with NMFS or the U.S. Fish and Wildlife Service, as appropriate, to ensure that the actions they fund, permit, authorize, or otherwise carry out will not jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitats. NMFS has determined that Vineyard Northeast's planned survey activities fall within the scope of activities analyzed in NMFS GARFO's programmatic consultation regarding geophysical surveys along the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions (completed June 29, 2021; revised September 2021). This consultation found that these survey activities are in general not likely to adversely affect any ESA-listed species listed or critical habitat.

Changes From Proposed to Final Renewal IHA

No changes were made from the proposed renewal IHA to the final renewal IHA.

Description of Marine Mammals

A description of the marine mammals in the proposed survey area may be found in the Federal Register notice for the proposed 2023 IHA (88 FR 40212, June 21, 2023), which relies upon information in the notice of the proposed 2022 IHA (87 FR 30872, May 20, 2022). After the 2023 IHA was issued, NMFS released its draft 2023 stock assessment reports (SARs). NMFS has reviewed the draft 2023 SARs, which included updates to certain stock abundance estimates, information on relevant unusual mortality events (UME), and other scientific literature. The draft 2023 SAR updated the population estimate (N_best) of North Atlantic right whales from 338 to 340 and annual mortality and serious injury from 31.2 to 27.2. The updated population estimate in the draft 2023 SAR is based upon sighting history through December 2021 (89 FR 5495, January 29, 2024). Total annual average observed North Atlantic right whale mortality during the period 2017-2021 was 7.1 animals and annual average observed fishery mortality was 4.6 animals, however, estimates of 27.2 total mortality and 17.6 fishery mortality account for undetected mortality and serious injury (89 FR 5495, January 29, 2024). In October 2023, NMFS released a technical report identifying that the North Atlantic right whale population size based on sighting history through 2022 was 356 whales, with a 95 percent credible interval ranging from 346 to 363 (Linden, 2023). NMFS conservatively relies in this circumstance on the lower SAR abundance estimate. NMFS has determined that neither this nor any other new information affects which species or stocks have the potential to be affected or any other pertinent information in the Description of the Marine Mammals in the Area of Specified Activities contained in the supporting documents for the 2023 and 2022 IHAs.

On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations to further reduce the likelihood of mortalities and serious injuries to endangered North Atlantic right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing UME (87 FR 46921, August 1, 2022). Should a final vessel speed rule be issued and become effective during the effective period of this renewal IHA (or any other MMPA incidental take authorization), the authorization holder would be required to comply with any and all applicable requirements contained within the final rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA authorization, authorization holders would be required to comply with the requirements of the rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization would remain in place. These changes would become effective immediately upon the effective date of any final vessel speed rule and would not require any further action on NMFS's part.

Potential Effects on Marine Mammals and Their Habitat

A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which incidental take is authorized here may be found in the notice of the proposed IHA for the 2022 IHA (87 FR 30872, May 20, 2022), which is relied upon in the notice for the proposed 2023 IHA (88 FR 40212, June 21, 2023). NMFS has reviewed the monitoring data from the 2023 IHA, recent draft SARs, information on relevant UMEs, and other scientific literature, and determined that there is no new information that affects our initial analysis of impacts on marine mammals and their habitat.

Estimated Take

A detailed description of the methods used to estimate take for the specified activity are found in the notices of the proposed and final IHA for the 2022 IHA (87 FR 30872, May 20, 2022; 87 FR 52913, August 30, 2022) and summarized in the notices of the proposed and final IHA for the 2023 IHA (88 FR 40212, June 21, 2023; 88 FR 50117, August 1, 2023). The methods of estimating take are identical to those used in the 2022 IHA and 2023 IHA (88 FR 40212, June 21, 2023). Specifically, the source levels, stocks taken, methods of take, and types of take remain unchanged from the 2022 IHA and 2023 IHA. In 2023, Vineyard Northeast updated the marine mammal densities based on new information (Roberts et al., 2016; Roberts et al., 2023), available online at: https://seamap.env.duke.edu/models/Duke/EC/. We refer the reader to table 8 in Vineyard Northeast's 2023 IHA request for the specific density values used in the analysis. The IHA request is available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llcs-marine-site-characterization-survey. The marine mammal density/occurrence data applicable to this renewal authorization remains unchanged from the 2023 IHA. The number of takes authorized are a subset of the initial authorized takes that better represent the amount of the remaining activity Vineyard Northeast has left to complete. These estimated takes, which reflect the remaining survey days, are indicated below in table 1.

Description of Mitigation, Monitoring and Reporting Measures

These required mitigation, monitoring, and reporting measures are identical to those included in the Federal Register notices announcing the issuance of the 2023 IHA (88 FR 50117, August 1, 2023) and the 2022 IHA (87 FR 52913, August 30, 2022). In addition, the discussion of the least practicable adverse impact included in those documents as well as the notice of the proposed IHAs for 2022 (87 FR 30872, May 20, 2022) and 2023 (88 FR 40212, August 1, 2023) remains accurate. NMFS will require the following measures for this renewal IHA:

Establishment of Shutdown Zones —Marine mammal shutdown zones must be established around the HRG survey equipment and monitored by NMFS-approved PSOs during HRG surveys as follows:

• 500-m shutdown zone for North Atlantic right whales during use of specified acoustic sources (impulsive: sparkers and boomers; non-impulsive: non-parametric sub-bottom profilers); and
• 100-m shutdown zone for all other marine mammals (excluding North Atlantic right whales) during operation of the sparker and boomer. The only exception for this is for pinnipeds (seals) and small delphinids (i.e., those from the genera Delphinus, Lagenorhynchus, Stenella or Tursiops).

If a marine mammal is detected approaching or entering the shutdown zones during the HRG survey, the vessel operator will adhere to the shutdown procedures described below to minimize noise impacts on the animals. During use of acoustic sources with the potential to result in marine mammal harassment (sparkers, boomers, and non-parametric sub-bottom profilers; i.e., anytime the acoustic source is active, including ramp-up), occurrences of marine mammals outside the shutdown zones must be communicated to the vessel operator to prepare for potential shutdown of the acoustic source.

Visual Monitoring —Monitoring must be conducted by NMFS-approved PSOs with minimum qualifications described in the Federal Register notices for the 2023 Proposed and Final IHAs (88 FR 40212, June 21, 2023; 88 FR 50117, August 1, 2023). Vineyard Northeast must have one PSO on duty during the day and a minimum of two PSOs must be on duty and conducting visual observations when HRG equipment is in use at night. Visual monitoring must begin no less than 30 minutes prior to ramp-up of HRG equipment and continue until 30 minutes after use of the acoustic source. PSOs must establish and monitor the applicable clearance zones, shutdown zones, and vessel separation distances as described in the 2022 IHA (87 FR 52913, August 30, 2022). PSOs must coordinate to ensure 360-degree visual coverage around the vessel from the most appropriate observation posts, and must conduct observations while free from distractions and in a consistent, systematic, and diligent manner. PSOs are required to estimate distances to observed marine mammals. It is the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate.

Pre-Start Clearance —Marine mammal clearance zones must be established around the HRG survey equipment and monitored by NMFS-approved PSOs prior to use of boomers, sparkers, and non-parametric sub-bottom profilers as follows:

• 500-m clearance zone for all ESA-listed species; and
• 100-m clearance zone for all other marine mammals.

Prior to initiating HRG survey activities, Vineyard Northeast must implement a 30-minute pre-start clearance period. The operator must notify a designated PSO of the planned start of ramp-up where the notification time should not be less than 60 minutes prior to the planned ramp-up to allow the PSOs to monitor the clearance zones for 30 minutes prior to the initiation of ramp-up. Prior to ramp-up beginning, Vineyard Northeast must receive confirmation from the PSO that the clearance zones are clear prior to preceding. Any PSO on duty has the authority to delay the start of survey operations if a marine mammal is detected within the applicable pre-start clearance zones.

During this 30-minute period, the entire clearance zone must be visible. The exception to this would be in situations where ramp-up must occur during periods of poor visibility (inclusive of nighttime) as long as appropriate visual monitoring has occurred with no detections of marine mammals in 30 minutes prior to the beginning of ramp-up.

If a marine mammal is observed within the relevant clearance zones during the pre-start clearance period, initiation of HRG survey equipment must not begin until the animal(s) has been observed exiting the respective clearance zone, or, until an additional period has elapsed with no further sighting ( i.e., minimum 15 minutes for small odontocetes and seals; 30 minutes for all other species). The pre-start clearance requirement includes small delphinids. PSOs must also continue to monitor the zone for 30 minutes after survey equipment is shut down or survey activity has concluded.

Ramp-Up of Survey Equipment —When technically feasible, a ramp-up procedure must be used for geophysical survey equipment capable of adjusting energy levels at the start or re-start of survey activities. The ramp-up procedure must be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the project area by allowing them to detect the presence of the survey and vacate the area prior to the commencement of survey equipment operation at full power. Ramp-up of the survey equipment must not begin until the relevant shutdown zones have been cleared by the PSOs, as described above. HRG equipment operators must ramp up acoustic sources to half power for 5 minutes and then proceed to full power. If any marine mammals are detected within the shutdown zones prior to or during ramp-up, the HRG equipment must be shut down (as described below).

Shutdown Procedures— If an HRG source is active and a marine mammal is observed within or entering a relevant shutdown zone (as described above), an immediate shutdown of the HRG survey equipment is required. When shutdown is called for by a PSO, the acoustic source must be immediately deactivated and any dispute resolved only following deactivation. Any PSO on duty has the authority to delay the start of survey operations or to call for shutdown of the acoustic source if a marine mammal is detected within the applicable shutdown zone. The vessel operator must establish and maintain clear lines of communication directly between PSOs on duty and crew controlling the HRG source(s) to ensure that shutdown commands are conveyed swiftly while allowing PSOs to maintain watch. Subsequent restart of the HRG equipment may only occur after the marine mammal has been observed exiting the relevant shutdown zone, or, until an additional period has elapsed with no further sighting of the animal within the relevant shutdown zone.

Upon implementation of shutdown, the HRG source may be reactivated after the marine mammal that triggered the shutdown has been observed exiting the applicable shutdown zone or, following a clearance period of 15 minutes for small odontocetes ( i.e., harbor porpoise) and 30 minutes for all other species with no further observation of the marine mammal(s) within the relevant shutdown zone. If the HRG equipment is shut down for brief periods ( i.e., less than 30 minutes) for reasons other than mitigation ( e.g., mechanical or electronic failure) the equipment may be reactivated as soon as is practicable at full operational level, without 30 minutes of pre-clearance, only if PSOs have maintained constant visual observation during the shutdown and no visual detections of marine mammals occurred within the applicable shutdown zones during that time. For a shutdown of 30 minutes or longer, or if visual observation was not continued diligently during the pause, pre-clearance observation is required, as described above.

The shutdown requirement is waived for pinnipeds (seals) and certain genera of small delphinids ( i.e., Delphinus, Lagenorhynchus, Stenella, or Tursiops) under certain circumstances. If a delphinid(s) from these genera is visually detected within the shutdown zone, shutdown would not be required. If there is uncertainty regarding identification of a marine mammal species ( i.e., whether the observed marine mammal(s) belongs to one of the delphinid genera for which shutdown is waived), PSOs must use best professional judgment in making the decision to call for a shutdown.

If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized number of takes have been met, approaches or is observed within the area encompassing the Level B harassment isopleth (178 m), shutdown must occur.

Vessel Strike Avoidance —Vineyard Northeast must comply with vessel strike avoidance measures as summarized in the Federal Register notice for the 2023 IHA (88 FR 50117, August 1, 2023). For a detailed description of vessel strike avoidance measures, please see the Federal Register notice for the 2022 IHA (87 FR 52913, August 30, 2022). This includes speed restrictions (10 knots or less) when mother/calf pairs, pods, or large assemblages of cetaceans are spotted near a vessel; species-specific vessel separation distances; appropriate vessel actions when a marine mammal is sighted ( e.g., avoid excessive speed, remain parallel to animal's course, etc.); and monitoring of the NMFS North Atlantic Right Whale reporting system and WhaleAlert daily.

Throughout all phases of the survey activities, Vineyard Northeast must monitor NOAA Fisheries North Atlantic right whale reporting systems for the establishment of a dynamic management area (DMA). If NMFS establishes a DMA in the surrounding area, including the project area or export cable routes being surveyed, Vineyard Northeast is required to abide by the 10-knot speed restriction.

Training —Project-specific training is required for all vessel crew prior to the start of survey activities.

Reporting —PSOs must record specific information as described in the Federal Register notice of the issuance of the 2023 IHA (88 FR 50117, August 1, 2023). Within 90 days after completion of survey activities, Vineyard Northeast must provide NMFS with a monitoring report, which must include summaries of recorded takes and estimates of the number of marine mammals that may have been harassed.

In the event of a ship strike or discovery of an injured or dead marine mammal, Vineyard Northeast must report the incident to the NMFS Office of Protected Resources ( PR.ITP.MonitoringReports@noaa.gov) and to the NMFS Greater Atlantic Stranding Hotline (866-755-6622) as soon as feasible. The incident must also be reported to the NMFS GARFO ( nmfs.gar.incidental-take@noaa.gov). The report must include the information listed in the Federal Register notice of the issuance of the 2022 IHA (87 FR 52913, August 30, 2022).

Determinations

Vineyard Northeast's HRG survey activities are a subset but otherwise unchanged from those analyzed in support of the 2023 IHA. The effects of the activity, taking into consideration the 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 178 m from use of the Applied Acoustics AA251 Boomer. 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 (4 m for the Edge Tech Chirp 216 or 141 m for the GeoMarine Geo Spark 2000), producing expected effects of particularly low severity. Therefore, the ensonified area surrounding each vessel is relatively small compared to the overall distribution of the animals in the area and the available habitat.

The survey area overlaps or is in close proximity to feeding biologically important areas (BIA) for North Atlantic right whales (Cape Cod Bay and Massachusetts Bay BIA, February-April/Great South Channel and Georges Bank Shelf Break BIA, April-June), humpback whales (March-December), fin whales (year-round/March-October), sei whales (May-November), and minke whales (March-November), as well as overlaps the migratory BIA for North Atlantic right whales (November 1-April 30) (LaBrecque et al., 2015). Most of these feeding BIAs are extensive and sufficiently large ( e.g., 3,149 km² and 12,247 km² for North Atlantic right whales; 47,701 km² for humpback whales; 18,015 km² and 2,933 km² for fin whales; 56,609 km² for sei whales; 54,341 for minke whales), and the acoustic footprint of the proposed survey is sufficiently small that feeding opportunities for these species would not be reduced appreciably. In addition, the survey area also overlaps with the area south of Martha's Vineyard and Nantucket, primarily along the western side of Nantucket Shoals, which has been identified as year-round core North Atlantic right whale foraging habitat (Leiter et al., 2017; O'Brien et al., 2022; Quintana-Rizzo et al., 2021; Van Parijs et al., 2023). As prey species are mobile and broadly distributed throughout the survey area, marine mammals that are temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise, thus we do not expect biologically significant impacts to feeding behavior. Due to the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and required mitigation measures, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. The impacts of these lower severity exposures are not expected to accrue to a degree that the fitness of any individuals would be impacted and, therefore, no impacts on the annual rates of recruitment or survival would result.

As previously discussed in the 2023 IHA (88 FR 50117, August 1, 2023), impacts from the survey are expected to be localized to the specific area of activity and only during periods when Vineyard Northeast's acoustic sources are active. There are no rookeries, mating or calving grounds known to be biologically important to marine mammals within the survey area.

As noted for the 2023 IHA (88 FR 50117, August 1, 2023), the survey area overlaps a migratory corridor BIA and migratory route seasonal management areas (SMAs) (Port of New Jersey/New York and Block Island) for North Atlantic right whales. As the survey activities would be temporary and the spatial acoustic footprint produced by the survey would be very small relative to the spatial extent of the available migratory habitat in the BIA (269,448 km² ), NMFS does not expect North Atlantic right whale migration to be impacted by the survey. Required vessel strike avoidance measures would also decrease risk of ship strike during migration; no ship strike is expected to occur during Vineyard Northeast's activities. Vineyard Northeast would be required to comply with seasonal speed restrictions of these SMAs, and in any DMA, should NMFS establish one (or more) in the proposed survey area. The 2022 IHA included the Cape Cod Bay SMA in the survey area, however, in 2023 the survey area was reduced and no longer overlapped with this SMA. The survey area for this renewal IHA also does not include the Cape Cod Bay SMA.

Although take by Level B harassment of North Atlantic right whales has been authorized by NMFS, we anticipate a very low level of harassment, should it occur, because Vineyard Northeast is required to maintain a shutdown zone of 500 m if a North Atlantic right whale is observed. The authorized takes account for any missed animals wherein the survey equipment is not shut down immediately. As shutdown would be called for immediately upon detection (if the whale is within 500 m), it is likely the exposure time would be very limited and received levels would not be much above the harassment threshold. Further, the 500-m shutdown zone for right whales is conservative, considering the distance to the Level B harassment isopleth for the most impactful acoustic source ( i.e., Applied Acoustics AA251 Boomer—which may not be used on all survey days) is estimated to be 178 m, and thereby minimizes the potential for behavioral harassment of this species. As noted previously, Level A harassment is not expected due to the small permanent threshold shift zones associated with HRG equipment types planned for use. NMFS does not anticipate North Atlantic right whale takes that would result from Vineyard Northeast's activities would impact annual rates of recruitment or survival. Thus, any takes that occur would not result in population level impacts.

We also note that our findings for other species with active UMEs that were previously described for the 2023 IHA (88 FR 50117, August 1, 2023) remain applicable to this project. In addition, our analysis of survey effects on species with BIAs that overlap with the survey area remains unchanged. Therefore, in conclusion, there is no new information suggesting that our analysis or findings should change.

NMFS has concluded that there is no new information suggesting that our analysis or findings should change from those reached for the 2023 IHA. This includes consideration of the slight increase in estimated abundance of six stocks and slight decrease in estimated abundance of three stocks. Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures would effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes would 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) Vineyard Northeast's activities would not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action; and (5) appropriate monitoring and reporting requirements are included.

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 determined that the application of this categorical exclusion remains appropriate for this renewal IHA.

Endangered Species Act

Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS Office of Protected Resources consults internally whenever we propose to authorize take for endangered or threatened species.

NMFS has authorized the incidental take of five species of marine mammals which are listed under the ESA, including the North Atlantic right, fin, sei, blue, and sperm whale, and has determined that this activity falls within the scope of activities analyzed in NMFS GARFO's programmatic consultation regarding geophysical surveys along the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions (completed June 29, 2021; revised September 2021).

Renewal

NMFS has issued a renewal IHA to Vineyard Northeast for the take of marine mammals incidental to conducting marine site characterization surveys offshore from Massachusetts to New Jersey in the BOEM Lease Areas OCS-A 0522 and OCS-A 0544 and associated OECC routes, from July 27, 2024, through July 26, 2025.