Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices 69159 

Although non-emergency issues not 

contained on the agenda may come 

before this Council for discussion, those 

issues may not be the subject of formal 

action during this meeting. Council 

action will be restricted to those issues 

specifically listed in this notice and any 

issues arising after publication of this 

notice that require emergency action 

under section 305(c) of the MagnusonStevens Act, provided the public has 

been notified of the Council’s intent to 

take final action to address the 

emergency. The public also should be 

aware that the meeting will be recorded. 

Consistent with 16 U.S.C. 1852, a copy 

of the recording is available upon 

request. 

Special Accommodations 

This meeting is physically accessible 

to people with disabilities. Requests for 

sign language interpretation or other 

auxiliary aids should be directed to Cate 

O’Keefe, Executive Director, at (978) 

465–0492, at least 5 days prior to the 

meeting date. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: September 29, 2023. 

Rey Israel Marquez, 

Acting Deputy Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2023–22123 Filed 10–4–23; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XD419] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Marine Site 

Characterization Surveys in the Area of 

Commercial Lease of Submerged 

Lands for Renewable Energy 

Development on the Outer Continental 

Shelf Lease Areas OCS–A 0486, 0487, 

and 0500 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of Renewal 

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 an incidental 

harassment authorization (IHA) to 

Orsted Wind Power North America LLC 

(Orsted) for the renewal of their 2022 

incidental harassment authorization 

(IHA) (hereinafter, the 2022 IHA is 

referred to as the ‘‘initial IHA’’ and the 

2023 IHA is referred to as the ‘‘Renewal 

IHA’’) to take marine mammals 

incidental to marine site 

characterization surveys, using highresolution geophysical (HRG) 

equipment, in coastal waters from New 

York to Massachusetts, including the 

Bureau of Ocean Energy Management 

(BOEM) Commercial Lease of 

Submerged Lands for Renewable Energy 

Development on the Outer Continental 

Shelf (OCS) Lease Areas OCS–A 0486, 

0487, 0500 and along potential export 

cable routes (ECR). 

DATES: This Renewal IHA is valid 

October 6, 2023 to October 5, 2024. 

ADDRESSES: Electronic copies of the 

original application, Renewal IHA 

request, and supporting documents 

(including NMFS Federal Register 

notices of the original proposed and 

final authorizations, and the initial 

IHA), as well as a list of the references 

cited in this document, may be obtained 

online at: https://www.fisheries.

noaa.gov/permit/incidental-takeauthorizations-under-marine-mammalprotection-act. In case of problems 

accessing these documents, please call 

the contact listed below. 

FOR FURTHER INFORMATION CONTACT: 

Karolyn Lock, 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). NMFS must prescribe the 

permissible methods of taking and other 

‘‘means of effecting the least practicable 

adverse impact’’ on the affected species 

or stocks and their habitat, paying 

particular attention to rookeries, mating 

grounds, and areas of similar 

significance, and on the availability of 

such species or stocks for taking for 

certain subsistence uses (referred to here 

as ‘‘mitigation measures’’). NMFS must 

also prescribe requirements pertaining 

to monitoring and reporting of such 

takings. The definitions of key terms 

such as ‘‘take,’’ ‘‘harassment,’’ and 

‘‘negligible impact’’ can be found in the 

MMPA and NMFS implementing 

regulations (see 16 U.S.C. 1362; 50 CFR 

216.3; 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 caseby-case basis, NMFS may issue a 1-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 of the initial IHA effective date 

(recognizing that the renewal’s 

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 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 

• 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 


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69160 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices 

not previously analyzed or authorized; 

and 

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: 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-harassment-authorizationrenewals. 

Summary of Request 

On October 6, 2022, NMFS issued an 

IHA to Orsted to take small numbers of 

marine mammals incidental to marine 

site characterization surveys in Federal 

and state waters located in Lease Areas 

OCS–A 0486, 0487, 0500 off the coasts 

from New York to Massachusetts and 

along potential ECRs to landfall 

locations between Raritan Bay (part of 

the New York Bight) and Falmouth, 

Massachusetts. On May 26, 2023, NMFS 

received a request for a renewal of that 

initial IHA because Orsted’s marine site 

characterization surveys under the 

initial IHA had not yet occurred and 

more time is required. As described in 

the application for the Renewal IHA, the 

activities for which incidental take is 

requested are identical to those covered 

by the initial IHA. However, Orsted 

decreased the number of survey days 

from 400 to 390 based on the 

assumption that subsidiaries of Orsted 

will have separate incidental take 

authorizations for marine site 

characterization surveys in Lease Areas 

OCS–A 0486 (Revolution Wind; 88 FR 

8996, February 10, 2023) and OCS–A 

0487 (Sunrise Wind; 87 FR 79072, 

January 19, 2023) during the effective 

period of the Renewal IHA. NMFS has 

authorize incidental take through this 

Renewal IHA assuming 400 survey days 

will be necessary as NMFS has not 

promulgated final rules for Revolution 

Wind and Sunrise Wind. The notice of 

the proposed Renewal IHA was 

published on September 11, 2023 (88 FR 

62337). 

As no work has commenced under the 

initial IHA, Orsted cannot provide a 

preliminary monitoring report. 

However, if work occurs before the 

effective date of the proposed Renewal 

IHA, a preliminary monitoring report 

would be required and be made 

available on NMFS’ website (available at 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-take-authorizations-otherenergy-activities-renewable) and would 

detail any implemented mitigation and 

monitoring and show that no impacts of 

a scale or nature not previously 

analyzed or authorized have occurred as 

a result of the activities conducted. 

Orsted has complied with all the 

requirements (e.g., mitigation, 

monitoring, and reporting) of the 

previous IHAs in Lease Areas OCS–A 

0486, 0487, and 0500 (84 FR 52464, 

October 2, 2019; 85 FR 63508, October 

8, 2020; 87 FR 13975, March 11, 2022). 

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 Unusual Mortality Event (87 FR 

46921). Should a final vessel speed rule 

be issued and become effective during 

the effective period of this proposed 

Renewal IHA (or any other MMPA 

incidental take authorization), the 

authorization holder would be required 

to comply with any and all applicable 

requirements contained within the final 

rule. Specifically, where measures in 

any final vessel speed rule are more 

protective or restrictive than those in 

this or any other MMPA authorization, 

authorization holders would be required 

to comply with the requirements of the 

rule. Alternatively, where measures in 

this or any other MMPA authorization 

are more restrictive or protective than 

those in any final vessel speed rule, the 

measures in the MMPA authorization 

would remain in place. These changes 

would become effective immediately 

upon the effective date of any final 

vessel speed rule and would not require 

any further action on NMFS’s part. 

Description of the Specified Activities 

and Anticipated Impacts 

Orsted plans to conduct marine site 

characterization surveys, specifically 

HRG surveys, in the Lease Areas OCS– 

A 0486, 0487, 0500 and ECR Area in 

Federal and state waters from New York 

to Massachusetts to support the 

characterization of the existing seabed 

and subsurface geological conditions, 

which is necessary for the development 

of an offshore electric transmission 

system. The project would use active 

acoustic sources, including some with 

potential to result in the incidental take 

of marine mammals by Level B 

harassment. 

This Renewal IHA is identical to the 

initial IHA and conservatively assumes 

no work will occur for the remainder of 

the initial IHA. 

The Renewal IHA would authorize 

incidental take, by Level B harassment 

only (in the form of behavioral 

disturbance), of 16 species or stocks of 

marine mammals for identical marine 

site characterization survey activities to 

be completed in 1 year, in the same 

area, using survey methods identical to 

those described in the initial IHA 

application. Therefore, the anticipated 

effects on marine mammals and the 

affected stocks also remain the same. 

The amount of take, by Level B 

harassment, requested for the Renewal 

IHA is also identical to that authorized 

in the initial IHA. All mitigation, 

monitoring, and reporting measures 

would remain exactly as described in 

the Federal Register notice of the issued 

initial IHA (87 FR 61575, October 12, 

2022). 

Detailed Description of the Activity 

A detailed description of the marine 

site characterization survey activities for 

which incidental take is authorized may 

be found in the Federal Register notice 

of the proposed IHA (87 FR 52515, 

August 26, 2022) for the initial 

authorization. The location and nature 

of the activities, including the types of 

equipment planned for use, are identical 

to those described in the previous 

notices. This Renewal IHA is effective 

from October 6, 2023 through October 5, 

2024. 

Description of Marine Mammals 

A description of the marine mammals 

in the area of the activities for which 

authorization of take is proposed here, 

including information on abundance, 

status, distribution, and hearing, may be 

found in the Federal Register notice of 

the proposed IHA for the initial 

authorization (87 FR 52515, August 26, 

2022). NMFS has reviewed the recently 

finalized 2022 Stock Assessment 

Reports (SARs), which included updates 

to stock abundances since the initial 

IHA was issued, information on relevant 

Unusual Mortality Events, and other 

scientific literature. In August 2023, 

NMFS released its final 2022 SARs, 

which updated the population estimate 

(Nbest) of North Atlantic right whales 

from 368 to 338 and annual mortality 

and serious injury increased from 8.1 to 

31.2. This large increase in annual 

serious injury/mortality is a result of 

NMFS including undetected annual 

mortality and serious injury in the total 


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Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices 69161 

annual serious injury/mortality, which 

had not been previously included in the 

SARs. The population estimate is 

slightly lower than the North Atlantic 

Right Whale Consortium’s 2022 Report 

Card, which identifies the population 

estimate as 340 individuals (Pettis et al., 

2023). 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 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 proposed 

here may be found in the Federal 

Register notice of the proposed IHA for 

the initial authorization proposed (87 

FR 52515, August 26, 2022). NMFS has 

reviewed information on relevant 

Unusual Mortality Events, the 2022 

SARs, and other scientific literature and 

data, and preliminarily 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 

notices of the proposed (87 FR 52515, 

August 26, 2022) and issued (87 FR 

61575, October 12, 2022) IHAs for the 

initial authorization. Specifically, the 

acoustic sources and levels, survey 

days, and marine mammal density 

applicable to this authorization remain 

unchanged from the initial IHA. 

Similarly, the stocks taken, methods of 

take and type of take (i.e., Level B 

harassment in the form of behavioral 

disturbance) remain unchanged from 

the initial IHA. 

As was done in the initial IHA, Orsted 

requested a deviation from the 

calculated take for some species given to 

account for group size or observations 

during surveys in the surrounding area. 

Other than in the instances described 

below, Orsted’s requested take matches 

their initial IHA. Orsted’s Renewal IHA 

request references new data sources to 

inform group sizes for humpback whale 

(collected under the Northeast Projects 

IHA (87 FR 13975, March 11, 2022)), 

minke whale (Kenney and VignessRaposa, 2010); and Risso’s dolphin 

(Barkaszi and Kelly, 2019). When these 

group size data were considered, the 

takes requested by Orsted for these 

species in their application were equal 

to or less than that authorized under the 

initial IHA. However, NMFS proposes to 

authorize the same number of incidental 

takes for all species as the initial IHA as 

the activities are identical and NMFS 

considers the data sources used in the 

initial IHA the best scientific 

information available. 

During consideration of the Renewal 

IHA request, a typographical error in the 

proposed and notice of issuance Federal 

Register publications was identified that 

stated 17 pilot whales were authorized 

for take when 52 were requested and 

authorized within the IHA (as stated in 

the initial IHA application and issued 

IHA). The number of takes included in 

the Renewal IHA application and within 

this proposed Renewal IHA is 52, which 

equates to 0.13 percent of the 

population abundance. Lastly, the stock 

abundance amounts used for the initial 

IHA were from the 2021 SARs (Hayes et 

al., 2022), the most recent available at 

the time of publication; the abundance 

amounts used for this proposed 

Renewal IHA are the final 2022 SARs 

(Hayes et al., 2023). 

TABLE 1—INITIAL IHA TAKE AUTHORIZED AND RENEWAL IHA PROPOSED TAKE BY LEVEL B HARASSMENT 1

Species Population 

abundance 2

Take 

authorized 

initial IHA 

Requested 

proposed take 

renewal IHA 

NMFS 

proposed take 

renewal IHA3

Percent of 

population for 

renewal IHA 

North Atlantic right whale 4 .................................................. 338 17 16 17 5.03 

Humpback whale ................................................................. 1,396 34 19 34 2.44 

Fin whale .............................................................................. 6,802 14 14 14 0.21 

Sei whale ............................................................................. 6,292 3 3 3 0.05 

Minke whale ......................................................................... 21,968 13 9 13 0.06 

Sperm whale ........................................................................ 4,349 2 2 2 0.05 

Long-finned Pilot whale 5 ..................................................... 39,215 52 52 52 0.13 

Bottlenose dolphin 6 ............................................................. 62,851 139 139 139 0.22 

Common Dolphin ................................................................. 172,974 6,000 6,000 6,000 3.47 

Atlantic white-sided dolphin ................................................. 93,233 210 206 210 0.23 

Atlantic spotted dolphin ........................................................ 39,921 29 29 29 0.07 

Risso’s dolphin ..................................................................... 35,215 30 30 30 0.09 

Striped dolphin ..................................................................... 67,036 20 20 20 0.03 

Harbor porpoise ................................................................... 95,543 287 279 287 0.30 

Gray seal .............................................................................. 27,300 118 116 118 0.43 

Harbor seal .......................................................................... 61,336 118 116 118 <0.01 

1 No take by Level A harassment is anticipated nor proposed to be authorized. 

2Final 2022 SARs (Hayes et al., 2023). At the time of the issuance of the initial IHA, the 2021 SARs were used as the best available science. 

This table utilizes the 2022 SARs abundance numbers. The only species where the abundance number changed between the initial IHA and this 

proposed renewal was the North Atlantic right whale. 3While Orsted adjusted their requested take numbers for some species based on 10 less survey days or by utilizing a different data source, 

NMFS proposes to authorize the same amount of take as the initial IHA; as previously described. 4The SARs stock abundance number at the time of issuance for the initial IHA was 368. The percent of population affected under the initial 

IHA was 4.62 percent. While the total number of proposed takes remains the same between the initial IHA and this proposed renewal, due to the 

decrease in the population abundance to 338 (2022 SARs), the percent of the population affected would increase slightly to 5.03 percent. 5While the original Federal Register publications for the initial IHA contained a typo of 17 takes by Level B harassment instead of the 52 requested and eventually authorized, the percent abundance affected provided in those publications was correct (0.13 percent) as that value had 

been correctly calculated using 52. Therefore, as the population abundance remains unchanged from the initial IHA, the correction in this proposed renewal notice of 17 to 52 does not change the percent of the population proposed to be affected (0.13 percent). 6Western North Atlantic, Offshore stock. 


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69162 Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices 

Description of Mitigation, Monitoring 

and Reporting Measures 

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 (87 FR 61575, 

October 12, 2022), and the discussion of 

the least practicable adverse impact 

determination included in that 

document remains applicable and 

accurate. All mitigation, monitoring, 

and reporting measures in the initial 

IHA are identical in the Renewal IHA 

and summarized below. 

• Ramp-Up: A ramp-up procedure 

would be used for geophysical survey 

equipment capable of adjusting energy 

levels at the start or re-start of survey 

activities; 

• Protected Species Observers: A 

minimum of one NMFS-approved 

Protected Species Observer (PSO) must 

be on duty and conducting visual 

observations at all times during daylight 

hours (i.e., from 30 minutes prior to 

sunrise through 30 minutes following 

sunset). Two PSOs will be on watch 

during nighttime operations; 

• Pre-Operation Clearance Protocols: 

Prior to initiating HRG survey activities, 

Orsted would implement a 30-minute 

pre-operation clearance period. If any 

marine mammals are detected within 

the Exclusion Zones prior to or during 

ramp-up, the HRG equipment would be 

shut down (as described below); 

• Shutdown Zones: If an HRG source 

is active and a marine mammal is 

observed within or entering a relevant 

shutdown zone, an immediate 

shutdown of the HRG survey equipment 

would be required. Note this shutdown 

requirement would be waived for 

certain genera of small delphinids and 

pinnipeds; 

• Vessel Strike Avoidance Measures: 

Separation distances for large whales 

(500 meter (m) North Atlantic right 

whales and other ESA-listed marine 

mammals; 100 m for all other non-ESA 

listed baleen whales; 50 m all other 

marine mammals); restricted vessel 

speeds and operational maneuvers; and 

• Reporting: Orsted will submit a 

marine mammal report within 90 days 

following completion of the surveys. 

Comments and Responses 

A notice of NMFS’ proposal to issue 

a Renewal IHA to Orsted was published 

in the Federal Register on September 

11, 2023 (88 FR 62337). That notice 

either described or referenced 

descriptions of Orsted’s 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. In 

that notice, we requested public input 

on the request for authorization 

described therein, our analyses, the 

proposed authorization, and any other 

aspect of the notice of the proposed IHA 

renewal and requested that interested 

persons submit relevant information, 

suggestions, and comments. That 

proposed notice was available for a 15- 

day public comment period. 

NMFS received a total of 17 public 

comment letters from 13 private citizens 

and 4 non-governmental organizations. 

The comments and our responses are 

summarized below. 

Most comments received expressed 

general opposition to issuance of the 

IHA or to the underlying associated 

activities. We reiterate here 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. Many comments received 

requested that NMFS not issue any IHAs 

related to wind energy development 

and/or expressed opposition for wind 

energy development generally without 

providing information relevant to 

NMFS’ decision. We do not specifically 

address comments expressing general 

opposition to activities related to wind 

energy development or respond to 

comments that are out of scope of the 

proposed Renewal IHA (88 FR 62337, 

September 11, 2023), such as comments 

on other Federal agency processes and 

activities not planned under this IHA. 

All substantive comments and NMFS’ 

responses are provided below, and all 

comment letters are available online at 

https://www.fisheries.noaa.gov/action/ 

incidental-take-authorization-orstedwind-power-north-america-llc-marinesite-0. 

Please review the comment letters for 

full details regarding the comments and 

associated rationale. 

Comment 1: NMFS lacked adequate 

analysis of cumulative impacts (i.e., 

effects) to marine mammals and should 

conduct an Environmental Impact 

Statement (EIS). 

Response: Neither the MMPA nor 

NMFS’ codified implementing 

regulations require consideration of 

other unrelated activities and their 

impacts on marine mammal 

populations. The preamble for NMFS’ 

implementing regulations (54 FR 40338, 

September 29, 1989) states in response 

to comments that the impacts from other 

past and ongoing anthropogenic 

activities are to be incorporated into the 

negligible impact analysis via their 

impacts on the baseline. Consistent with 

that direction, NMFS has factored into 

its negligible impact analysis the 

impacts of other past and ongoing 

anthropogenic activities via their 

impacts on the baseline (e.g., as 

reflected in the density, distribution and 

status of the species, population size 

and growth rate, and other relevant 

stressors). The 1989 final rule for the 

MMPA implementing regulations also 

addressed public comments regarding 

cumulative effects from future, 

unrelated activities. There, NMFS stated 

that such effects are not considered in 

making findings under MMPA section 

101(a)(5) concerning negligible impact. 

In this case, this Renewal IHA, as well 

as other IHAs currently in effect or 

proposed within the specified 

geographic region, are appropriately 

considered an unrelated activity relative 

to the others. The IHAs are unrelated in 

the sense that they are discrete actions 

under section 101(a)(5)(D), issued to 

discrete applicants. 

Section 101(a)(5)(D) of the MMPA 

requires NMFS to make a determination 

that the take incidental to a ‘‘specified 

activity’’ will have a negligible impact 

on the affected species or stocks of 

marine mammals. NMFS’ implementing 

regulations 50 CFR 216.104(a)(1) require 

applicants to include in their request a 

detailed description of the specified 

activity or class of activities that can be 

expected to result in incidental taking of 

marine mammals. Thus, the ‘‘specified 

activity’’ for which incidental take 

coverage is being sought under section 

101(a)(5)(D) is generally defined and 

described by the applicant. Here, Orsted 

was the applicant for the Renewal IHA, 

and we are responding to the specified 

activity as described in that application 

and making the necessary findings on 

that basis. 

Through the response to public 

comments in the 1989 implementing 

regulations, NMFS also indicated (1) 

that we would consider cumulative 

effects that are reasonably foreseeable 

when preparing a National 

Environmental Policy Act (NEPA) 

analysis, and (2) that reasonably 

foreseeable cumulative effects would 

also be considered under section 7 of 

the Endangered Species Act (ESA) for 

ESA-listed species, as appropriate. 

Accordingly, NMFS has written 

Environmental Assessments (EA) that 

addressed cumulative impacts related to 

substantially similar activities, in 

similar locations (e.g., the 2019 

Avangrid EA for survey activities 

offshore North Carolina and Virginia; 

the 2017 Ocean Wind, LLC EA for site 


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Federal Register / Vol. 88, No. 192 / Thursday, October 5, 2023 / Notices 69163 

characterization surveys off New Jersey; 

and the 2018 Deepwater Wind EA for 

survey activities offshore Delaware, 

Massachusetts, and Rhode Island). 

Cumulative impacts regarding issuance 

of IHAs for site characterization survey 

activities such as those planned by 

Orsted have been adequately addressed 

under NEPA in prior environmental 

analyses that support NMFS’ 

determination that this action is 

appropriately categorically excluded 

from further NEPA analysis. NMFS 

independently evaluated the use of a 

categorical exclusion (CE) for issuance 

of Orsted’s IHA, which included 

consideration of extraordinary 

circumstances. 

Separately, 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 has engaged in 

formal intra-agency consultation, such 

as the 2013 programmatic Biological 

Opinion for BOEM Lease and Site 

Assessment Rhode Island, 

Massachusetts, New York, and New 

Jersey Wind Energy Areas (https://

repository.library.noaa.gov/view/noaa/ 

29291). 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 Orsted under this 

current Renewal IHA request. This 

Biological Opinion determined that 

NMFS’ issuance of IHAs for site 

characterization survey activities 

associated with leasing, individually 

and cumulatively, are not likely to 

adversely affect listed marine mammals. 

NMFS notes that, while issuance of this 

IHA is covered under a different 

consultation, this BiOp remains valid. 

Comment 2: NMFS’ proposed 

mitigation measures are beneficial but 

not reliable, ‘‘practical’’ but not 

effective. The mitigation measurements 

are not clearly defined and the 

monitoring measures are insufficient to 

ensure compliance with the IHA. Lastly, 

the IHA must include requirements to 

ensure the least practicable impact on 

marine mammal species or stocks and 

their habitats in and around the project 

site and include the use of effective 

reactive restrictions that are triggered by 

detection of protected species before or 

during site characterization activities. 

Response: NMFS disagrees that the 

mitigation and associated monitoring 

measures are insufficient (e.g., not 

reliable or effective) to affect the least 

practicable adverse impact on the 

affected species and stocks. NMFS notes 

that the commenters did not provide 

specific recommendations on the 

measures to address their concerns on 

effectiveness for NMFS to consider. In 

practice, NMFS agrees that the IHA 

should include conditions for the 

survey activities that will first avoid 

adverse effects in and around the survey 

site, where practicable, and then 

minimize the effects that cannot be 

avoided. NMFS has determined that the 

IHA meets this requirement to effect the 

least practicable adverse impact. All 

mitigation measures stated in the issued 

IHA, which are the same for the 

Renewal IHA, are considered 

practicable. NMFS works with each ITA 

applicant, including Orsted, to ensure 

that project-specific mitigation measures 

are practicable in real-world conditions. 

NMFS does not agree that additional 

wording is necessary within the IHA to 

further describe the measure 

requirements and implementation. If 

NMFS determines during the effective 

period of the IHA that the prescribed 

measures are likely not or are not 

effecting the least practicable adverse 

impact on the affected species or stocks 

and their habitat, NMFS may modify, 

suspend, or revoke the IHA. 

As part of the analysis for all marine 

site characterization survey IHAs, 

including this Renewal IHA, NMFS 

evaluated the effects expected as a result 

of the specified activity, made the 

necessary findings, and prescribed 

mitigation requirements sufficient to 

achieve the least practicable adverse 

impact on the affected species and 

stocks of marine mammals. There are 

several reactive mitigation measures, 

such as shutdown requirements, 

described in the Federal Register notice 

of the proposed initial IHA (87 FR 

52515, August 26, 2022), and which are 

included in the final Renewal IHA, 

including the stipulation that 

geophysical survey equipment must be 

immediately shut down if any marine 

mammal is observed within or entering 

the relevant exclusion zone while 

geophysical survey equipment is 

operational. In addition, clearance zones 

are required and a pre-start clearance 

period must be implemented prior to 

ramp-up of specified HRG equipment. 

During this period, clearance zones will 

be monitored by the PSOs, using the 

appropriate visual technology. Ramp-up 

may not be initiated if any marine 

mammal(s) is within its respective 

clearance zone. If a marine mammal is 

observed within a clearance zone during 

the pre-start clearance period, ramp-up 

may not begin until the animal(s) has 

been observed exiting its respective 

exclusion zone or until an additional 

time period has elapsed with no further 

sighting. If the acoustic source is shut 

down for reasons other than mitigation 

(e.g., mechanical difficulty) for less than 

30 minutes, it may be activated again 

without ramp-up if PSOs have 

maintained constant observation and no 

detections of any marine mammal have 

occurred within the respective 

exclusion zones. 

NMFS reviews required reporting by 

authorization holders, which includes 

data from the independent PSOs and 

uses the information to evaluate the 

mitigation measure effectiveness and 

ensure compliance with the measures 

described in the issued IHA. 

Additionally, the mitigation measures 

included in the Renewal IHA are not 

unique, and data from prior IHAs 

support the effectiveness of these 

mitigation measures. NMFS finds the 

level of reporting currently required is 

sufficient for managing the Renewal 

IHA and monitoring the affected stocks 

of marine mammals. 

Comment 3: NMFS uses complex 

formulas for estimated take and zone of 

influence (i.e., ensonified area) which 

are flawed and inappropriately applied. 

The root mean square (RMS) 160 dB 

threshold is outdated. 

Response: NMFS disagrees with the 

commenter and note the commenter did 

not provide additional scientific 

information for NMFS to consider. 

NMFS’ estimated take analysis is based 

on the best scientific information 

available. As described in the notice of 

proposed initial IHA, the area of water 

ensonified ((Distance/day × 2r) + pr2) is 

a representation of the maximum extent 

of the ensonified area around a sound 

source over a 24-hr period. ‘‘r’’ is the 

linear distance from the source to the 

isopleth for the Level B harassment 

threshold. The distance to this threshold 

was calculated using a simple model of 

sound propagation loss at or above the 

rms 160 (decibel) dB threshold, which 

accounts for the loss of sound energy 

over increasing range. NMFS 

acknowledges that the 160-dB rms stepfunction approach is simplistic and that 

an approach reflecting a more complex 

probabilistic function may more 

effectively represent the known 

variation in responses at different levels 

due to differences in the receivers, the 

context of the exposure, and other 

factors. However, we recognize the 

potential for Level B harassment at 

exposures to received levels below 160 

dB rms in addition to the potential that 

animals exposed to received levels 

above 160 dB rms will not respond in 

ways constituting behavioral 

harassment. Overall, there is a lack of 

scientific consensus regarding what 

criteria might be more appropriate. 

Defining sound levels that disrupt 


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behavioral patterns is difficult because 

responses depend on the context in 

which the animal receives the sound, 

including an animal’s behavioral mode 

when it hears sounds (e.g., feeding, 

resting, or migrating), prior experience, 

and biological factors (e.g., age and sex). 

Other contextual factors, such as signal 

characteristics, distance from the 

source, and signal to noise ratio, may 

also help determine response to a given 

received level of sound. Therefore, 

levels at which responses occur are not 

necessarily consistent and can be 

difficult to predict (Southall et al., 2007, 

2019; Ellison et al., 2012; Bain and 

Williams, 2006; Gomez et al., 2016). Use 

of the 160-dB threshold allows for a 

simple quantitative estimate of take 

while we can qualitatively address the 

variation in responses across different 

received levels in our discussion and 

analysis. 

NMFS has determined that spherical 

spreading is the most appropriate form 

of propagation loss for these surveys 

and has relied on this approach for past 

IHAs with similar equipment, locations, 

and depths. Please refer back to the 

Garden State HRG IHA (83 FR 14417, 

April 4, 2018) and the 2019 Skipjack 

HRG IHA (84 FR 51118, September 27, 

2019) for examples. Prior to the issuance 

of these IHAs (approximately 2018 and 

older), NMFS typically relied upon 

practical spreading for these types of 

survey activities. However, as additional 

scientific evidence became available, 

including numerous sound source 

verification reports, NMFS determined 

that this approach was inappropriately 

conservative and, since that time, as 

consistently used spherical spreading. 

Furthermore, NMFS’ User Spreadsheet 

tool assumes a ‘‘safe distance’’ 

methodology for mobile sources where 

propagation loss is spherical spreading 

(20LogR) (https://media.fisheries.

noaa.gov/2020-12/User_Manual%20_

DEC_2020_508.pdf?null), and NMFS 

calculator tool for estimating isopleths 

to Level B harassment thresholds also 

incorporates the use of spherical 

spreading. 

As described in the notice for the 

proposed initial IHA (87 FR 52515, 

August 26, 2022), NMFS estimate the 

amount of take through a simple 

formula (Estimated take = species 

density × ZOI × # of survey days). For 

the initial and Renewal IHAs, NMFS 

relied upon the best available scientific 

information in assessing the likelihood 

of occurrence for all potentially 

impacted marine mammal species, 

using Habitat-based density models 

produced by the Duke University 

Marine Geospatial Ecology Laboratory 

(Roberts et al., 2016b, 2017, 2018, 2021) 

which represent the best available 

information regarding marine mammal 

densities in the survey area. Density 

data for all taxa are available for 10 km 

x 10 km grid cells over the entire survey 

area and, for most species (including 

North Atlantic right whale), are 

available for each of 12 months. NMFS 

believes that this approach to use the 

density information to estimate take is 

appropriate. Once the density per 

species in the project area were 

obtained, the ZOI and number of days 

of possible activity resulting in 

ensonified waters were multiplied. In 

some instances, the resulting estimated 

take is less than one group size and the 

take is increased to account for such (as 

described in the proposed initial and 

Renewal IHA notices). This creates a 

sound approach to calculate the number 

of species possibly affected by the 

proposed activities. A description on 

what numbers were used in the 

calculations for the Renewal IHA can be 

found in the proposed IHA in the 

Federal Register (88 FR 62337, 

September 11, 2023). 

Comment 4: The planned activities 

could result in death or serious injury 

of marine mammals. Additionally, the 

increased boat traffic and sound from 

the acoustic sources for profiling the 

ocean floor could result in more than 

Level B harassment (e.g., death or 

serious injury). The IHA must include a 

vessel traffic plan to minimize the 

effects of vessels on marine mammals. 

Response: NMFS emphasizes that 

there is no credible scientific evidence 

available suggesting that mortality and/ 

or serious injury is a potential outcome 

of the planned survey activity. 

Additionally, NMFS cannot authorize 

mortality or serious injury via an IHA, 

and such taking is prohibited under the 

IHA. Moreover, the commenter did not 

provide additional scientific 

information for NMFS to consider. 

NMFS has carefully reviewed the best 

available scientific information in 

assessing impacts to marine mammals 

and determined that the surveys have 

the potential to impact marine mammals 

through behavioral effects and auditory 

masking. The best available science 

indicates that Level B harassment, or 

disruption of behavioral patterns, may 

occur as a result of Orsted’s specified 

activities. No Level A harassment is 

expected to result, even in the absence 

of mitigation, given the characteristics 

of the sources planned for use. This is 

additionally supported by the required 

mitigation and very small estimated 

Level A harassment zones described in 

the initial IHA Federal Register notice 

(87 FR 61575, October 12, 2022) and 

carried through to the Renewal IHA (88 

FR 62337, September 11, 2023). NMFS 

considers the potential for Level A 

harassment for any species to be 

discountable. 

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 

ESA-listed marine mammal species (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/newengland-mid-atlantic/consultations/ 

section-7-take-reporting-programmaticsgreater-atlantic#offshore-wind-siteassessment-and-site-characterizationactivities-programmatic-consultation. 

Orsted did not request authorization 

for take incidental to vessel strike 

during Orsted’s marine site 

characterization survey. Nevertheless, 

NMFS analyzed the potential for vessel 

strikes to occur during the survey, and 

determined that the potential for vessel 

strike is so low as to be discountable. 

NMFS takes seriously the risk of vessel 

strike and has prescribed measures 

sufficient to avoid the potential for 

vessel strike to the extent practicable. 

NMFS has required these measures 

despite a very low likelihood of vessel 

strike; vessels associated with the 

survey activity will add a discountable 

amount of vessel traffic to the specific 

geographic region and, furthermore, 

vessels towing survey gear travel at very 

slow speeds (i.e., roughly 4–5 knots). 

Condition 4(g) in the IHA contains a 

suite of non-discretionary requirements 

pertaining to vessel strike avoidance, 

including vessel operation protocols 

and monitoring. To date, NMFS is not 

aware of any site characterization vessel 

from surveys reporting a vessel strike 

within the United States. 

Comment 5: NMFS should deny the 

proposed project and/or postpone any 

offshore wind (OSW) activities until 

NMFS determines effects of all OSW 

activities on marine mammals in the 

region and determines that the recent 

whale deaths are not related to OSW 

activities. Similarly, some commenters 

provided general concerns regarding 

recent whale stranding events on the 

Atlantic Coast, including speculation 

that the strandings may be related to 

wind energy development-related 

activities. 

Response: NMFS authorizes take of 

marine mammals incidental to marine 

site characterization surveys but does 

not authorize the surveys themselves. 

Therefore, while NMFS has the 


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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. The MMPA 

requires us to evaluate the effects of the 

specified activities in consideration of 

the best scientific evidence available 

and, if the necessary findings are made, 

to issue the requested incidental take 

authorization. The MMPA does not 

allow us to delay decision making in 

hopes that additional information may 

become available in the future. 

NMFS reiterates that there is no 

evidence that noise resulting from 

offshore wind development-related site 

characterization surveys could 

potentially cause marine mammal 

stranding, and there is no evidence 

linking recent large whale mortalities 

and currently ongoing surveys. The 

commenters offer no such evidence. 

NMFS will continue to gather data to 

help us determine the cause of death for 

these stranded whales. We 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 causativelyassociated with baleen whale 

strandings.’’ (Marine Mammal 

Commission Newsletter, Spring 2023). 

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) with limited or 

no access. Of the whales examined 

(roughly 90), about 40 percent had 

evidence of human interaction, either 

vessel strike or entanglement. Vessel 

strikes and entanglement in fishing gear 

are the greatest human threats to large 

whales. 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 

including parasite-caused organ damage 

and starvation. 

As discussed herein, HRG sources 

may behaviorally disturb marine 

mammals (e.g., avoidance of the 

immediate area). These HRG surveys are 

very different from seismic airguns used 

in oil and gas surveys or tactical 

military sonar. They produce much 

smaller impact zones because, in 

general, they have lower source levels 

and produce output at higher 

frequencies. The area within which 

HRG sources might behaviorally disturb 

a marine mammal is orders of 

magnitude smaller than the impact areas 

for seismic airguns or military sonar. 

Any marine mammal exposure would 

be at significantly lower levels and 

shorter duration, which is associated 

with less severe impacts to marine 

mammals. 

Comment 6: The number of takes 

NMFS proposed to authorize for North 

Atlantic right whale is too high, the data 

used to determine the level of take was 

not based on the best available science 

and should have included Level A 

harassment. In addition, NMFS should 

delay or deny issuing the Renewal IHA 

until the results from new North 

Atlantic right whale research is 

published and fully analyzed. 

Response: NMFS disagrees that the 

number of takes by Level B harassment 

is high and emphasizes its 

determination that the authorized takes 

of North Atlantic right whales 

represents small numbers of marine 

mammals relative to the affected stock 

abundances (i.e., 5.03 percent; NMFS 

considers that one-third of the most 

appropriate population abundance 

number—as compared with the 

assumed number of individuals taken— 

is an appropriate limit with regard to 

‘‘small numbers’’). NMFS refers to our 

response on estimating take in Comment 

3, which referenced the process that 

resulted in the 5.03 percent takes by 

Level B harassment of North Atlantic 

right whale. NMFS reiterates that there 

is no credible scientific evidence 

available suggesting that Level A 

harassment, mortality, and/or serious 

injury is a potential outcome of the 

planned survey activity, as further 

discussed in our response to Comment 

4. 

The MMPA specifies that the ‘‘best 

available data’’ must be used, which 

does not always mean the most recent. 

We referenced the best available data for 

our effects analysis (i.e., impact 

assessment) available at the time of 

publication. NMFS relied upon the best 

scientific evidence available, including, 

but not limited to, the 2022 SAR (Hayes 

et al., 2023), scientific literature, and 

Duke University’s density model 

(Roberts et al., 2022), in analyzing the 

impacts of this project’s specified 

activities on marine mammals. The 

commenter did not provide additional 

scientific information for NMFS to 

consider. NMFS reiterates our response 

on the use of best available science in 

Comment 4. 

NMFS disagrees that a delay or denial 

of the Renewal IHA is necessary until 

new scientific information is available. 

The MMPA requires us to evaluate the 

effects of the specified activities in 

consideration of the best scientific 

evidence available and, if the necessary 

findings are made, to issue the 

requested incidental take authorization. 

The MMPA does not allow us to delay 

decision making in hopes that 

additional information may become 

available in the future. If new 

information, which NMFS considers to 

be the best available scientific 

information, demonstrates that the 

authorized activity is having a nonnegligible impact on a marine mammal 

stock, NMFS must modify, suspend, or 

revoke the IHA. 

Comment 7: NMFS must reissue the 

Renewal IHA notice and provide a full 

30-day comment period to ensure 

adequate public engagement. The 15- 

day public comment period for IHA 

renewals is a violation of the MMPA, 

which requires a 30-day public 

comment period for all IHAs, including 

reauthorizations. NMFS falsely asserts 

that if it includes an opportunity to 

comment on a renewal at the time of the 

proposed IHA, the original comment 

period will count towards the 30-day 

requirement. The text of the MMPA, 

however, does not explicitly or 

implicitly recognize an expedited 

renewal process with a 15-day comment 

period for IHAs even if NMFS 

determines the activities are nearly 

identical. 

Response: NMFS’ IHA renewal 

process meets all statutory 

requirements. In prior responses to 

comments about IHA renewals (e.g., 84 

FR 52464, October 2, 2019 and 85 FR 

53342, August 28, 2020), NMFS 

explained the IHA renewal process is 

consistent with the statutory 

requirements contained in section 

101(a)(5)(D) of the MMPA and further, 


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promotes NMFS’ goals of improving 

conservation of marine mammals and 

increasing efficiency in the MMPA 

compliance process. Therefore, NMFS 

disagrees with this comment. 

All IHAs issued, whether an initial 

IHA or a renewal, are valid for a period 

of not more than 1 year. The public has 

30 days to comment on proposed IHAs, 

with a cumulative total of 45 days for 

IHA renewals. The notice of the 

proposed IHA published in the Federal 

Register (87 FR 52515, August 26, 2022) 

provided a 30-day public comment 

period and made clear that NMFS was 

seeking comment on the proposed IHA 

and the potential issuance of a renewal 

for this survey. As detailed in the 

Federal Register notice for the proposed 

IHA and on the agency’s website, 

eligibility for renewal is determined on 

a case-by-case basis, renewals are 

subject to an additional 15-day public 

comment period, and the renewal is 

limited to up to another year of identical 

or nearly identical activities as 

described in the Description of 

Proposed Activities section of the 

proposed IHA notice or the activities 

described in the Description of 

Proposed Activities section of the 

proposed IHA notice would not be 

completed by the time the IHA expires 

and a renewal would allow for 

completion of the activities beyond that 

described in the Dates and Duration 

section of this notice. NMFS’ analysis of 

the anticipated impacts on marine 

mammals caused by the applicant’s 

activities covers both the initial IHA 

period and the possibility of a 1-year 

renewal. Therefore, a member of the 

public considering commenting on a 

proposed initial IHA also knows exactly 

what activities (or subset of activities) 

would be included in a proposed 

renewal IHA, the potential impacts of 

those activities, the maximum amount 

and type of take that could be caused by 

those activities, the mitigation and 

monitoring measures that would be 

required, and the basis for the agency’s 

negligible impact determinations, least 

practicable adverse impact findings, 

small numbers findings, and (if 

applicable) the no unmitigable adverse 

impact on subsistence use finding—all 

the information needed to provide 

complete and meaningful comments on 

a possible renewal at the time of 

considering the proposed initial IHA. 

Reviewers have the information needed 

to meaningfully comment on both the 

immediate proposed IHA and a possible 

1-year renewal, should the IHA holder 

choose to request one. 

While there would be additional 

documents submitted with a renewal 

request, for a qualifying renewal these 

would be limited to documentation that 

NMFS would make available and use to 

verify that the activities are identical to 

those in the initial IHA, are nearly 

identical such that the changes would 

have either no effect on impacts to 

marine mammals or decrease those 

impacts, or are a subset of activities 

already analyzed and authorized but not 

completed under the initial IHA. NMFS 

would also need to confirm, among 

other things, that the activities would 

occur in the same location; involve the 

same species and stocks; provide for 

continuation of the same mitigation, 

monitoring, and reporting requirements; 

and that no new information has been 

received that would alter the prior 

analysis. The renewal request would 

also contain a preliminary monitoring 

report, if work had commenced, in order 

to verify that effects from the activities 

do not indicate impacts of a scale or 

nature not previously analyzed. The 

additional 15-day public comment 

period, which includes NMFS’ direct 

notice to anyone who commented on 

the proposed initial IHA, provides the 

public an opportunity to review these 

few documents, provide any additional 

pertinent information, and comment on 

whether they think the criteria for a 

renewal have been met. Combined 

together, the 30-day public comment 

period on the initial IHA and the 

additional 15-day public comment 

period on the renewal of the same or 

nearly identical activities, provides the 

public with a total of 45 days to 

comment on the potential for renewal of 

the IHA. 

In addition to the IHA renewal 

process being consistent with all 

requirements under section 101(a)(5)(D) 

of the MMPA, it is also consistent with 

Congress’ intent for issuance of IHAs to 

the extent reflected in statements in the 

legislative history of the MMPA. 

Through the description of the process 

and express invitation to comment on 

specific potential renewals in the 

Request for Public Comments section of 

each proposed IHA, the description of 

the process on NMFS’ website, further 

elaboration on the process through 

responses to comments such as these, 

posting of substantive documents on the 

agency’s website, and provision of 30 or 

45 days for public review and comment 

on all proposed initial IHAs and 

renewals respectively, NMFS has 

ensured that the public is ‘‘invited and 

encouraged to participate fully in the 

agency’s decision-making process,’’ as 

Congress intended. 

Comment 8: NMFS must use the best 

available science, especially for North 

Atlantic right whale, including 

population estimates, recent habitat 

usage patterns for the study area and up 

to date seasonality information that may 

differ from the March-April and 

November-December migration periods 

cited in the notice. NMFS has not fully 

considered both the use of the area and 

the effects of both acute and chronic 

stressors on the health and fitness of 

North Atlantic right whales, as 

disturbance responses in North Atlantic 

right whales could lead to chronic stress 

or habitat displacement, leading to an 

overall decline in their health and 

fitness. 

Response: While NMFS agrees that 

the best available science must be used 

for assessing North Atlantic right whale 

abundance estimates, we disagree that 

the provided New England Aquarium’s 

(i.e., North Atlantic Right Whale Report 

Card) 2022 estimate of 340 referenced 

represents the most recent and best 

available estimate for North Atlantic 

right whale abundance. Rather the 

abundance estimate (338) in the 2022 

Stock Assessment Reports (SARs; 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-stock-assessmentreports)), which was used in the 

proposed Renewal IHA, provides the 

most recent and best available estimate. 

Furthermore, NMFS notes that the SARs 

are peer reviewed by statutorily 

established scientific review groups 

prior to being finalized and published 

and that the North Atlantic Right Whale 

Report Card (Pettis et al., 2022) does not 

undertake this process. 

NMFS further notes that the 

commenters seem to be conflating the 

phrase ‘‘best available data’’ with ‘‘the 

most recent data’’. The MMPA specifies 

that the ‘‘best available data’’ must be 

used, which does not always mean the 

most recent. We referenced the best 

available North Atlantic right whale 

abundance estimate of 338 from the 

2022 SARs as NMFS’ determination of 

the best available data that we relied on 

in our analysis. 

NMFS considered the best available 

science regarding both recent habitat 

usage patterns for the study area and upto-date seasonality information in the 

notice of the proposed IHA, including 

consideration of existing Biologically 

Important Areas (BIAs) and densities 

provided by Roberts et al. (2022). While 

the commenter has suggested that 

NMFS consider best available 

information for recent habitat usage 

patterns and seasonality, it has not 

offered any additional information for 

NMFS to consider. 

Lastly, any impacts to marine 

mammals are expected to be temporary 

and minor given the relative size of the 

survey area compared to the overall 


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migratory BIA. The survey area is 

extremely small (encompassing a small 

area offshore New England) compared to 

the size of the North Atlantic right 

whale migratory BIA (269,448 km2), 

which spans from Florida to Maine. 

Because of this, and in context of the 

minor, low-level nature of the impacts 

expected to result from the planned 

survey, such impacts are not expected to 

result in disruption to biologically 

important behaviors. 

NMFS agrees that both acute and 

chronic stressors are of concern for 

North Atlantic right whale conservation 

and recovery. We recognize that acute 

stress from acoustic exposure is one 

potential impact of these surveys, and 

that chronic stress can have fitness, 

socializing, feeding impacts at the 

population-level scale. NMFS has 

carefully reviewed the best available 

scientific information in assessing 

impacts to marine mammals, and 

recognizes that the surveys have the 

potential to impact marine mammals 

through behavioral effects, stress 

responses, and auditory masking. 

However, NMFS does not expect that 

the generally short-term, intermittent, 

and transitory marine site 

characterization survey activities 

planned will create conditions of acute 

or chronic acoustic exposure leading to 

long-term physiological stress responses 

in marine mammals. Because North 

Atlantic right whales generally use this 

area for migration, any potential impacts 

from these surveys are expected to be 

brief. In context of these expected lowlevel impacts, which are not expected to 

meaningfully affect important behavior, 

we also refer again to the large size of 

the migratory corridor compared with 

the survey area. Thus, the transitory 

nature of North Atlantic right whales at 

this location means it is unlikely for any 

exposure to cause chronic effects, as the 

planned survey area and ensonified 

zones are much smaller than the overall 

migratory corridor. As such, NMFS does 

not expect acute or cumulative stress to 

be a detrimental factor to North Atlantic 

right whales from Orsted’s described 

survey activities. NMFS has also 

prescribed a robust suite of mitigation 

measures, including extended distance 

shutdowns for North Atlantic right 

whales that are expected to further 

reduce the duration and intensity of 

acoustic exposure while limiting the 

potential severity of any possible 

behavioral disruption. 

Lastly, NMFS disagrees that the 

effects of Orsted’s survey may 

contribute to stunted growth rates as 

suggested by a commenter. The 

activities associated with Orsted’s 

survey are outside the scope of activities 

described in the Steward et al. (2021) 

paper and NMFS does not expect 

impacts such as these to result from 

Orsted’s described survey activities. 

Comment 9: NMFS must make an 

assessment of which activities, 

technologies and strategies are truly 

necessary to achieve site 

characterization to inform development 

of the offshore wind projects and which 

are not critical, asserting that NMFS 

should prescribe the appropriate survey 

techniques. NMFS must require that all 

IHA applicants minimize the impacts of 

underwater noise to the fullest extent 

feasible, including through the use of 

lower impact technology and methods 

to minimize adverse effects (e.g., sound 

levels) from geophysical surveys. 

Response: The MMPA requires that an 

IHA include measures that will affect 

the least practicable adverse impact on 

the affected species and stocks and, in 

practice, NMFS agrees that the IHA 

should include conditions for the 

survey activities that will first avoid 

adverse effects in and around the survey 

site and then minimize the effects that 

cannot be avoided. NMFS has 

determined that the IHA meets this 

requirement to effect the least 

practicable adverse impact. As part of 

the analysis for all marine site 

characterization survey IHAs, NMFS 

evaluated the effects expected as a result 

of the specified activity, made the 

necessary findings, and prescribed 

mitigation requirements sufficient to 

achieve the least practicable adverse 

impact on the affected species and 

stocks of marine mammals. It is not 

within NMFS’ purview to make 

judgments regarding what may be 

appropriate techniques or technologies 

for an operator’s survey objectives. 

Comment 10: NMFS should require 

all vessels associated with the site 

characterization activities to carry and 

use PSOs at all times when underway. 

During low visibility conditions, the 

IHA should require PSO monitoring to 

include infrared (IR) detection devices. 

NMFS should restrict all vessels of all 

sizes associated with the proposed 

survey activities to speeds less than 10 

knots (kn) at all times due to the risk of 

vessel strikes to North Atlantic right 

whales and other large whales. NMFS 

should require vessels maintain a 

separation distance of at least 500 m 

from North Atlantic right whales at all 

times. 

Response: NMFS notes a requirement 

to utilize PSOs when specific acoustic 

sources (impulsive: sparkers; nonimpulsive: non-parametric sub-bottom 

profilers-CHIRPs) are operating, a 

minimum of one PSO must be on duty, 

per source vessel, during daylight hours 

and two PSOs must be on duty, per 

source vessel, during nighttime hours 

(see Condition 4(a)). In addition, 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 (see Condition 4(g)(i)). 

NMFS notes a requirement to utilize 

a thermal (infrared) device during lowlight conditions was included in the 

proposed Federal Register Notice of the 

initial IHA. That requirement is 

included as a requirement of the issued 

IHA and the Renewal IHA. 

While NMFS acknowledges that 

vessel strikes can result in injury or 

mortality, we have analyzed the 

potential for vessel strike resulting from 

Orsted’s activities and have determined 

that based on the nature of the activity 

and the required mitigation measures 

specific to vessel strike avoidance 

included in the IHA, potential for vessel 

strike is so low as to be discountable. 

The required mitigation measures, all of 

which were included in the proposed 

initial IHA and were required in the 

final IHA (and in this Renewal IHA), 

include: A requirement that all vessel 

operators comply with 10 kn (18.5 km/ 

hour) or less speed restrictions in any 

Seasonal Management Area (SMA), 

Dynamic Management Area (DMA), or 

Slow Zone while underway, and check 

daily for information regarding the 

establishment of mandatory or 

voluntary vessel strike avoidance areas 

(SMAs, DMAs, Slow Zones) and 

information regarding NARW sighting 

locations; a requirement that all vessels 

greater than or equal to 19.8 m in overall 

length operating from November 1 

through April 30 operate at speeds of 10 

kn (18.5 km/hour) or less; a requirement 

that all vessel operators reduce vessel 

speed to 10 kn (18.5 km/hour) or less 

when any large whale, any mother/calf 

pairs, pods, or large assemblages of nondelphinid cetaceans are observed near 

the vessel; a requirement that all survey 

vessels maintain a separation distance 

of 500 m or greater from any ESA-listed 

whales or other unidentified large 

marine mammals visible at the surface 

while underway; a requirement that, if 

underway, vessels must steer a course 

away from any sighted ESA-listed whale 

at 10 kn or less until the 500 m 

minimum separation distance has been 

established; a requirement that, if an 

ESA-listed whale is sighted in a vessel’s 

path, or within 500 m of an underway 

vessel, the underway vessel must reduce 

speed and shift the engine to neutral; a 

requirement that all vessels underway 

must maintain a minimum separation 

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listed baleen whales; and a requirement 

that all vessels underway 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). We 

have determined that the vessel strike 

avoidance measures in the IHA are 

sufficient to ensure the least practicable 

adverse impact on species or stocks and 

their habitat. Furthermore, no 

documented vessel strikes have 

occurred for any marine site 

characterization surveys which were 

issued IHAs from NMFS during the 

survey activities themselves or while 

transiting to and from survey sites. 

NMFS notes the requirement to 

maintain a separation distance of at 

least 500 m from North Atlantic right 

whales at all times was included in the 

proposed Federal Register Notice and 

was included as a requirement in the 

issued IHA (and for the Renewal IH). 

Comment 11: The IHA should require 

all vessels supporting site 

characterization to be equipped with 

and using Class A Automatic 

Identification System (AIS) devices at 

all times while on the water. Oceana 

suggested this requirement should apply 

to all vessels, regardless of size, 

associated with the survey. 

Response: NMFS is generally 

supportive of the idea that vessels 

involved with survey activities be 

equipped with and using Class A 

Automatic Identification System 

(devices) at all times while on the water. 

Given the small isopleths and small 

numbers of take authorized by this IHA, 

NMFS does not agree that the benefits 

of requiring AIS on all vessels 

associated with the survey activities 

outweighs and warrants the cost and 

practicability issues associated with this 

requirement. 

Comment 12: The IHA must include 

requirements to hold all vessels 

associated with site characterization 

surveys accountable to the IHA 

requirements, including vessels owned 

by the developer, contractors, 

employees, and others regardless of 

ownership, operator, and contract. The 

comment further states that exceptions 

and exemptions will create enforcement 

uncertainty and incentives to evade 

regulations through reclassification and 

redesignation. They recommend that 

NMFS simplify this by requiring all 

vessels to abide by the same 

requirements, regardless of size, 

ownership, function, contract or other 

specifics. 

Response: NMFS notes that the initial 

and Renewal IHAs authorizes Orsted 

and and its designees to incidentally 

harass marine mammals under certain 

conditions. Nevertheless, NMFS has 

added language to the Renewal IHA to 

clarify that the IHA conditions apply to 

those persons Orsted authorizes or 

funds to conduct activities on its behalf. 

The initial and Renewal IHAs also 

require that a copy of the IHA must be 

in the possession of Orsted, the vessel 

operators, the lead PSO, and any other 

relevant designees of Orsted operating 

under the authority of this IHA. The 

IHA also states that Orsted must ensure 

that the vessel operator and other 

relevant vessel personnel, including the 

Protected Species Observer (PSO) team, 

are briefed on all responsibilities, 

communication procedures, marine 

mammal monitoring protocols, 

operational procedures, and IHA 

requirements prior to the start of survey 

activity, and when relevant new 

personnel join the survey operations. 

Comment 13: The IHA must include 

a requirement for all phases of the site 

characterization to subscribe to the 

highest level of transparency, including 

frequent reporting to federal agencies. 

NMFS should require that Orsted report 

all visual and acoustic detections of 

North Atlantic right whales and any 

dead, injured, or entangled marine 

mammals to NMFS or the U.S. Coast 

Guard as soon as possible and no later 

than the end of the PSO shift. In 

addition, to foster stakeholder 

relationships and allow public 

engagement and oversight of the 

permitting, the IHA should require all 

reports and data to be accessible on a 

publicly available website. 

Response: NMFS notes the reporting 

requirements were included in the 

proposed IHA and were carried forward 

into the issued IHA (see Condition 6). 

As such, Orsted is already required to 

submit a monitoring 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. PSO datasheets or raw 

sightings data must also be provided 

with the draft and final monitoring 

report; sightings of North Atlantic right 

whales must be reported to the NMFS 

Right Whale Sightings Advisory System 

within two hours of occurrence, when 

practicable, or no later than 24 hours 

after occurrence; Orsted must also 

report North Atlantic right whale 

sighting to the U.S. Coast Guard. 

Additionally, Orsted must report any 

discoveries of injured or dead marine 

mammals to the NMFS Office of 

Protected Resources and to the New 

England/Mid-Atlantic Regional 

Stranding Coordinator as soon as 

feasible. This includes entangled 

animals. 

Daily visual and acoustic detections 

of North Atlantic right whales and other 

large whale species along the Eastern 

Seaboard, as well as Slow Zone 

locations, are publicly available on 

WhaleMap (https://whalemap.org/ 

WhaleMap/). Further, recent acoustic 

detections of North Atlantic right 

whales and other large whale species 

are available to the public on NOAA’s 

Passive Acoustic Cetacean Map website 

https://apps-nefsc.fisheries.noaa.gov/ 

pacm/#/narw. Given the open access to 

the resources described above, NMFS 

does not concur that public access to 

PSO reports is warranted and we have 

not included this measure in the 

authorization. 

Comment 14: NMFS should require a 

visual and acoustic clearance zone of at 

least 1,000 m for North Atlantic right 

whales during HRG survey activities. If 

a North Atlantic right whale is observed 

in the clearance zone then survey 

activities must cease (i.e., shut down). If 

a shutdown cannot occur due to human 

safety, Orsted must immediately notify 

NMFS with reasons and explanation for 

exemption and a summary of the 

frequency of these exceptions must be 

publicly available to ensure that these 

are the exception rather than the norm 

for the project. When safe to resume, 

HRG surveys should be required to use 

a soft start, ramp-up procedure to 

encourage any nearby marine life to 

leave the area. 

Response: NMFS notes that the 500 m 

clearance and shutdown zones included 

in the proposed IHA and carried 

forward in the issued IHA for North 

Atlantic right whales exceeds the 

modeled distance to the largest 160 dB 

Level B harassment isopleth (141 m 

during sparker use) by a substantial 

margin. Commenters did not provide 

additional scientific information for 

NMFS to consider to support their 

recommendation to expand the 

clearance and shutdown zones. Given 

that these surveys are relatively low 

impact and that NMFS has prescribed 

North Atlantic right whale clearance 

and shutdown zones that are 

significantly larger (500 m) than the 

conservatively estimated largest 

harassment zone (141 m), NMFS has 

determined that the 500-m zone size is 

appropriate. 

While the IHA requires that Orsted 

report when a shutdown occurs and if 

required mitigation was not 

implemented, NMFS disagrees that data 

on when shutdowns do not occur due 

to safety concerns should be made 

publicly available because the 

exemption is due to human safety and 


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is a blanket provision necessary for the 

safety of the crew and vessels and is not 

an act of non-compliance with the 

requirements within the IHA. 

NMFS notes the recommendation to 

require ramp-up is included in the 

Federal Register notice of the proposed 

IHA (87 FR 52515, August 26, 2022) and 

the final IHA (87 FR 61575, October 12, 

2022), and is required in the Renewal 

IHA (see Condition 4(e)). 

Comment 15: In the Renewal 

application, Orsted proposed lower 

levels of take for humpback whales, 

Risso’s dolphin, and minke whale than 

previously authorized in the initial IHA. 

NMFS must clarify why the lower take 

levels, including the use of different 

group size data, was not used in the 

Renewal IHA and NMFS is choosing to 

allow more take than requested. 

Subsequently, NMFS claimed that the 

2020–2021 PSO data for humpback and 

minke whales is the best scientific 

evidence available, and the 2022 PSO 

data collected under 87 FR 13975 

(March 11, 2022) is not. PSO synthesis 

from 2019 is not the best scientific 

evidence available for Risso’s dolphins, 

but PSO data from 2020–2021 is the best 

scientific evidence available for 

humpback and minke whales. Kenney 

and Vigness-Raposa, for reasons 

unknown, may be used for Risso’s 

dolphins and not for minke whales. 

Response: NMFS utilizes the best 

available science when analyzing which 

species may be impacted by an 

applicant’s proposed activities. NMFS 

proposed to authorize the same number 

of incidental takes for all species as the 

initial IHA as the activities are identical 

and we referenced the activity level and 

data sources (as the best scientific 

information available) used in the initial 

IHA, as explained below. 

Orsted’s Renewal IHA application 

requested lower take numbers through a 

combination of slightly fewer survey 

day (390 verses 400) and referenced 

different data sources from the initial 

IHA to inform group sizes for humpback 

whale (collected under the Northeast 

Projects IHA (87 FR 13975, March 11, 

2022)), minke whale (Kenney and 

Vigness-Raposa, 2010); and Risso’s 

dolphin (Barkaszi and Kelly, 2019). 

Orsted decreased the number of survey 

days from 400 to 390 based on the 

assumption that subsidiaries of Orsted 

will have separate incidental take 

authorizations for marine site 

characterization surveys in Lease Areas 

OCS–A 0486 (Revolution Wind; 88 FR 

8996, February 10, 2023) and OCS–A 

0487 (Sunrise Wind; 87 FR 79072, 

January 19, 2023) during the proposed 

effective period of the Renewal IHA. 

NMFS proposed to authorize incidental 

take assuming 400 survey days would 

be necessary as NMFS has not 

promulgated final rules for Revolution 

Wind and Sunrise Wind. As the take 

requested in the renewal application 

assumed 390 days and not the 400, 

NMFS applied the prior activity levels 

from the initial IHA to the species 

average annual density amount (the 

initial and renewal used Robert et al., 

2022) to estimate take (Estimated take = 

species density × ZOI × # of survey 

days). Therefore, the requested take 

numbers should be consistent with the 

amounts previously authorized when 

only considering the number of survey 

days. 

When the group size data were 

considered, the takes requested by 

Orsted for these species in their 

Renewal IHA application were equal to 

or less than that authorized under the 

initial IHA. NMFS assessed the changed 

data sources and chose the best 

available science and most conservative 

route to estimate take when adjusted for 

group size. NMFS refers to our 

responses pertaining to the best 

available science in Comments 6 and 8. 

In the Renewal IHA application, 

Orsted referenced data for minke whale 

using Kenney and Vigness-Raposa 

(2010), however, the initial IHA 

application used draft PSO data from 

surveys conducted in the project lease 

areas and export cable routes between 

May 2020 and December 2021 (Table 13 

in the initial IHA application). NMFS 

disagreed with Orsted’s use of Kenney 

and Vigness-Raposa (2010) as the PSO 

data previously provided was 

considered the best scientific 

information available. The ‘‘draft PSO 

data’’ was from ongoing site 

characterization surveys, spanning 

nearly two years (May 2020 through 

December 2021), under previous and 

existing IHAs in the area (13 minke 

observed within 500 m of an active 

sound source). The final PSO data 

referenced in the Renewal IHA 

application was collected under one 

IHA (87 FR 13975, March 11, 2022), 

though not used by Orsted in their take 

request, was limited to an observation 

period of 7 month (March through 

September 2022) and resulted in a mean 

group size of 1 (Table 2 in the Renewal 

IHA application). In their Renewal IHA 

application, Orsted chose to use a group 

size adjustment of 9 from Kenney and 

Vigness-Raposa (2010) and not the final 

PSO data due to the low group size 

number (1). As the planned activities 

may occur in any month of the year, the 

draft PSO data were over a significantly 

longer observation period and included 

year-round PSO data, and to be 

conservative in estimating the possible 

level of effect, NMFS chose to utilize the 

draft PSO data when setting the group 

size adjustment within the project area 

for minke (13). 

In the Renewal IHA application, 

Orsted referenced data for humpback 

whales from PSO data collected in 2022 

under 87 FR 13975 (March 11, 2022), 

however, the initial IHA application 

used draft PSO data from surveys 

conducted in the project lease areas and 

export cable routes between May 2020 

and December 2021 (Table 13 in the 

initial IHA application). As with minke, 

the draft PSO data was considered the 

best available science for the group size 

adjustment (34 observed within 500 m 

of an active source) as opposed to the 

final PSO data (mean group size of 2.3; 

Table 2 in the Renewal IHA 

application). To be conservative in 

estimating the possible level of effect, 

NMFS chose to utilize the draft PSO 

data due to the longer observation 

period when setting the group size 

adjustment within the project area for 

humpback (34). 

In the Renewal IHA application, 

Orsted referenced data for Risso’s 

dolphin from Barkaszi and Kelly (2019), 

however, the initial IHA application 

used Kenney and Vigness-Raposa 

(2010). NMFS disagrees with the use of 

Barkaszi and Kelly (2019) as that 

research is from observations in the Gulf 

of Mexico and other more 

geographically appropriate data exists 

(Kenney and Vigness-Raposa, 2010). 

Orsted did not use the draft or final PSO 

data used for minke in their 

applications; the draft PSO data 

observed 1 Risso’s dolphin within 500 

m of an active sound source, the final 

PSO data collected under 87 FR 13975 

had 0 observations (no detections of that 

species in the PSO records). Due to the 

lack of observation data on Risso’s 

dolphins through the PSO records, this 

data source was not appropriate for this 

particular species and NMFS chose to 

not use it as the best available science. 

The change from 17 to 16 for take by 

Level B harassment for the North 

Atlantic right whale was due to a 

difference in rounding between the 

initial IHA and Renewal IHA 

applications. NMFS continued with the 

previous rounding approach from the 

initial IHA (17). 

Comment 16: Commenters expressed 

concern regarding ocean noise and the 

interference it has on whales and other 

marine mammals’ use of echolocation 

and sonography to communication and 

travel (i.e., masking). 

Response: The commenters did not 

provide additional scientific 

information for NMFS to consider. 

NMFS has carefully reviewed the best 


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available scientific information in 

assessing impacts to marine mammals 

and determined that the surveys have 

the potential to impact marine mammals 

through behavioral effects and auditory 

masking. NMFS agrees that noise 

pollution in marine waters is an issue 

and is affecting marine mammals, 

including their ability to communicate 

when noise reaches certain thresholds. 

However, NMFS does not expect that 

the generally short-term, intermittent, 

and transitory marine site 

characterization survey activities 

planned by Orsted will create 

conditions of acute or chronic acoustic 

exposure leading to long-term 

physiological impacts in marine 

mammals. 

Determinations 

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 2022 SAR 

estimated abundance of the North 

Atlantic right whale stock. Specifically, 

NMFS is proposing to authorize 17 takes 

of North Atlantic right whales 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. Additionally, 

approximately 5 percent of the stock 

abundance is proposed for take by Level 

B harassment. 

Based on the information and analysis 

contained here and in the referenced 

documents, including the consideration 

of the final 2022 SARs, NMFS has 

determined the following: (1) the 

required mitigation measures will effect 

the least practicable impact on marine 

mammal species or stocks and their 

habitat; (2) the authorized takes will 

have a negligible impact on the affected 

marine mammal species or stocks; (3) 

the authorized takes represent small 

numbers of marine mammals relative to 

the affected stock abundances; (4) 

Orsted’s activities will not have an 

unmitigable adverse impact on taking 

for subsistence purposes as no relevant 

subsistence uses of marine mammals are 

implicated by this action; and (5) 

appropriate monitoring and reporting 

requirements are included. 

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 Endangered 

Species Act of 1973 (ESA; 16 U.S.C. 

1531 et seq.) requires that each Federal 

agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

IHAs, NMFS consults internally, in this 

case with the NMFS Greater Atlantic 

Regional Fisheries Office (GARFO), 

whenever we propose to authorize take 

for endangered or threatened species. 

NMFS Office of Protected Resources 

has authorized the incidental take of 

four species of marine mammals which 

are listed under the ESA (the North 

Atlantic right, fin, sei, and sperm whale) 

and has determined that these activities 

fall within the scope of activities 

analyzed in GARFO’s programmatic 

consultation regarding geophysical 

surveys along the U.S. Atlantic coast in 

the three Atlantic Renewable Energy 

Regions (completed June 29, 2021; 

revised September 2021). The Renewal 

IHA provides no new information about 

the effects of the action, nor does it 

change the extent of effects of the 

action, or any other basis to require 

reinitiation of consultation with NMFS 

GARFO; therefore, the ESA consultation 

has been satisfied for the initial IHA and 

remains valid for the Renewal IHA. 

Renewal IHA 

As a result of these determinations, 

NMFS has issued a renewal IHA to 

Orsted for conducting marine site 

characterization surveys off New York 

to Massachusetts (Lease Areas OCS–A 

0486, 0487, and 0500), effective from 

October 6, 2023 through October 5, 

2024, provided the previously described 

mitigation, monitoring, and reporting 

requirements are incorporated. 

Dated: September 29, 2023. 

Kimberly Damon-Randall, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2023–22120 Filed 10–4–23; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XD449] 

Mid-Atlantic Fishery Management 

Council (MAFMC); Public Meeting 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; public meeting. 

SUMMARY: The MAFMC’s Spiny Dogfish 

Monitoring Committee will meet via 

webinar to develop recommendations 

for future Spiny Dogfish specifications. 

DATES: The meeting will be held on 

Monday, November 6, 2023, from 12:30 

p.m. to 3 p.m. 

ADDRESSES: The meeting will be held 

via webinar. Connection information 

will be posted to the MAFMC calendar 

prior to the meeting at www.mafmc.org. 

Council address: Mid-Atlantic Fishery 

Management Council, 800 N State 

Street, Suite 201, Dover, DE 19901; 

telephone: (302) 674–2331; 

www.mafmc.org. 

FOR FURTHER INFORMATION CONTACT: 

Christopher M. Moore, Ph.D., Executive 

Director, Mid-Atlantic Fishery 

Management Council, telephone: (302) 

526–5255. 

SUPPLEMENTARY INFORMATION: The Spiny 

Dogfish Monitoring Committee will 

meet to review options for future 

specifications and management 

measures, and make any appropriate 

recommendations. 

Special Accommodations 

The meeting is physically accessible 

to people with disabilities. Requests for 

sign language interpretation or other 

auxiliary aid should be directed to 

Shelley Spedden, (302) 526–5251, at 

least 5 days prior to the meeting date. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: September 29, 2023. 

Rey Israel Marquez, 

Acting Deputy Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2023–22124 Filed 10–4–23; 8:45 am] 

BILLING CODE 3510–22–P 


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