Federal Register / Vol. 87, No. 48 / Friday, March 11, 2022 / Notices 13975 

Secretary, NAFTA Secretariat, Room 

2061, 1401 Constitution Avenue NW, 

Washington, DC 20230, (202) 482–5438. 

SUPPLEMENTARY INFORMATION: Article 

1904 of chapter 19 of NAFTA provides 

a dispute settlement mechanism 

involving trade remedy determinations 

issued by the Government of the United 

States, the Government of Canada, and 

the Government of Mexico. Following a 

Request for Panel Review, a Binational 

Panel is composed to provide judicial 

review of the trade remedy 

determination being challenged and 

then issue a binding Panel Decision. 

The NAFTA Binational Panel Decision 

is available publicly at https://can-mexusa-sec.org/secretariat/report-rapportreporte.aspx?lang=eng. There are 

established NAFTA Rules of Procedure 

for Article 1904 Binational Panel 

Reviews and the NAFTA Panel Decision 

has been notified in accordance with 

Rule 70. For the complete Rules, please 

see https://can-mex-usa-sec.org/ 

secretariat/agreement-accord-acuerdo/ 

nafta-alena-tlcan/rules-regles-reglas/ 

article-article-articulo_

1904.aspx?lang=eng. 

Dated: March 8, 2022. 

Garrett Peterson, 

International Trade Specialist, NAFTA 

Secretariat. 

[FR Doc. 2022–05169 Filed 3–10–22; 8:45 am] 

BILLING CODE 3510–GT–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB797] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Marine Site 

Characterization Surveys Offshore 

From New York to Massachusetts 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of Renewal 

incidental harassment authorization 

(IHA). 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA), as 

amended, notification is hereby given 

that NMFS has issued a Renewal 

incidental harassment authorization 

(IHA) to ;rsted to incidentally harass 

marine mammals incidental to marine 

site characterization surveys offshore 

from New York to Massachusetts. 

DATES: This Renewal IHA is valid from 

the date of issuance through September 

24, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Carter Esch, Office of Protected 

Resources, NMFS, (301) 427–8421. 

Electronic copies of the original 

application, renewal request, and 

supporting documents (including NMFS 

Federal Register notices of the original 

proposed and final authorizations, and 

the previous IHA), as well as a list of the 

references cited in this document, may 

be obtained online at: https://

www.fisheries.noaa.gov/permit/ 

incidental-take-authorizations-undermarine-mammal-protection-act. In case 

of problems accessing these documents, 

please call the contact listed above. 

SUPPLEMENTARY INFORMATION: 

Background 

The Marine Mammal Protection Act 

(MMPA) prohibits the ‘‘take’’ of marine 

mammals, with certain exceptions. 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce (as delegated 

to NMFS) to allow, upon request, the 

incidental, but not intentional, taking of 

small numbers of marine mammals by 

U.S. citizens who engage in a specified 

activity (other than commercial fishing) 

within a specified geographical region if 

certain findings are made and either 

regulations are proposed or, if the taking 

is limited to harassment, a notice of a 

proposed incidental take authorization 

is provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stocks for 

taking for certain subsistence uses 

(referred to here as ‘‘mitigation 

measures’’). Monitoring and reporting of 

such takings are also required. The 

meaning of key terms such as ‘‘take,’’ 

‘‘harassment,’’ and ‘‘negligible impact’’ 

can be found in section 3 of the MMPA 

(16 U.S.C. 1362) and the agency’s 

regulations at 50 CFR 216.103. 

NMFS’ regulations implementing the 

MMPA at 50 CFR 216.107(e) indicate 

that IHAs may be renewed for 

additional periods not to exceed one 

year for each reauthorization. In the 

notice of proposed IHA for the initial 

authorization, NMFS described the 

circumstances under which we would 

consider issuing a Renewal IHA for this 

activity, and requested public comment 

on a potential renewal under those 

circumstances. Specifically, on a caseby-case basis, NMFS may issue a onetime one-year Renewal IHA following 

notice to the public providing an 

additional 15 days for public comments 

when (1) up to another year of identical, 

or nearly identical, activities as 

described in the Detailed Description of 

Specified Activities section of the initial 

IHA issuance notice is planned or (2) 

the activities as described in the 

Detailed Description of Specified 

Activities 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 initial IHA 

issuance, provided all of the following 

conditions are met: 

(1) A request for renewal is received 

no later than 60 days prior to the needed 

Renewal IHA effective date (recognizing 

that the Renewal IHA expiration date 

cannot extend beyond one year from 

expiration of the initial IHA). 

(2) The request for renewal must 

include the following: 

• An explanation that the activities to 

be conducted under the requested 

Renewal IHA are identical to the 

activities analyzed under the initial 

IHA, are a subset of the activities, or 

include changes so minor (e.g., 

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). 

• A preliminary monitoring report 

showing the results of the required 

monitoring to date and an explanation 

showing that the monitoring results do 

not indicate impacts of a scale or nature 

not previously analyzed or authorized. 

(3) Upon review of the request for 

renewal, the status of the affected 

species or stocks, and any other 

pertinent information, NMFS 

determines that there are no more than 

minor changes in the activities, the 

mitigation and monitoring measures 

will remain the same and appropriate, 

and the findings in the initial IHA 

remain valid. 

An additional public comment period 

of 15 days (for a total of 45 days), with 

direct notice by email, phone, or postal 

service to commenters on the initial 

IHA, is provided to allow for any 

additional comments on the proposed 


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Renewal IHA. A description of the 

renewal process may be found on our 

website at: www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

incidental-harassment-authorizationrenewals. 

History of Request 

On September 25, 2020, NMFS issued 

an IHA to ;rsted to take marine 

mammals incidental to marine site 

characterization survey activities 

offshore from New York to 

Massachusetts in the areas of the 

Commercial Lease of Submerged Lands 

for Renewable Energy Development on 

the Outer Continental Shelf (OCS–A 

0486/0517, OCS–A 0487, and OCS–A 

0500) (Lease Areas) and along potential 

submarine export cable routes (ECRs) to 

landfall locations from New York to 

Massachusetts (85 FR 63508, October 8, 

2020), effective from September 25, 

2020 through September 24, 2021. Work 

under the initial IHA was completed, 

and on July 8, 2021, NMFS received an 

application for the renewal of that 

initial IHA to cover a second year of 

identical work. ;rsted later 

communicated that marine site 

characterization surveys under the 

Renewal IHA would not begin until 

2022. As described in the application 

for renewal, the activities for which 

incidental take is requested are identical 

to those covered by the initial 

authorization. As required, the 

applicant also provided a monitoring 

report (available at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-orstedwind-power-north-america-llc-sitecharacterization) which confirms that 

the applicant has implemented the 

required mitigation and monitoring, and 

which also shows that no impacts of a 

scale or nature not previously analyzed 

or authorized have occurred as a result 

of the activities conducted. The notice 

of the proposed Renewal IHA was 

published on January 6, 2022 (87 FR 

756). 

Description of the Specified Activities 

and Anticipated Impacts 

;rsted plans to conduct a second year 

of marine site characterization surveys, 

using high-resolution geophysical (HRG) 

equipment, within the Lease Areas— 

located approximately 14 miles (mi) (22 

kilometers (km)) south of Martha’s 

Vineyard, Massachusetts at its closest 

point—and proposed ECRs from the 

Lease Areas to potential shore landing 

locations for submarine cables 

associated with offshore wind 

development along the coast from New 

York to Massachusetts. The purpose of 

the marine site characterization surveys 

is to support site assessment, siting, and 

engineering design of offshore project 

facilities, including wind turbine 

generators (WTGs), offshore 

substation(s), and submarine cables 

within the Lease and proposed ECR 

Areas. The activities covered under the 

initial IHA have been completed. ;rsted 

requested a renewal of the initial IHA 

issued by NMFS in September 2020 on 

the basis that they plan to conduct up 

to another year of identical activities in 

the same area as described in the 

Detailed Description of the Specified 

Activities section of the Federal 

Register notice for the initial proposed 

IHA (85 FR 48179, August 10, 2020), 

which can be found at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable. 

In their 2020 IHA application, ;rsted 

estimated it would conduct surveys at a 

rate of 70 kilometers (km) per survey 

day. ;rsted defined a survey day as a 

24-hour activity day, which could be the 

sum of multiple partial surveys if less 

than 70 km is surveyed in 24 hours. 

Based on the planned 24-hour 

operations, the survey activities for all 

survey areas would require 1,302 survey 

days if one vessel were surveying 

continuously. However, ;rsted 

proposed to use an estimated five 

vessels simultaneously from June 1 

through December 31, with a maximum 

of no more than nine vessels. Therefore, 

;rsted planned to complete all survey 

effort in one year, prior to the expiration 

of the initial IHA on September 24, 

2021; all of the work addressed under 

the initial IHA was completed prior to 

the initial IHA expiration date. The 

Renewal IHA will authorize take, by 

Level B harassment only (in the form of 

behavioral disturbance), of 15 species/ 

stocks of marine mammals for a second 

year of identical survey activities to be 

completed no later than September 24, 

2022, 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 identical to that 

authorized in the initial IHA. All active 

acoustic sources, mitigation, and 

monitoring measures are exactly as 

described in the Federal Register 

notices of the issued initial IHA (85 FR 

63508, October 8, 2020; 85 FR 71058, 

November 6, 2020). 

Detailed Description of the Activity 

A detailed description of the marine 

site characterization survey activities for 

which incidental take is planned may be 

found in the Federal Register notice of 

the proposed IHA (85 FR 48179; August 

10, 2020) for the initial authorization. 

As described above, ;rsted completed 

the survey activities analyzed for the 

initial IHA by the date the IHA expired 

(September 24, 2021). The surveys 

;rsted plans to conduct under this 

renewal will be identical to those 

described in the initial IHA. The 

location and nature of the activities, 

including the types of equipment 

planned for use, are identical to those 

described in the previous notices. 

Description of Marine Mammals 

A description of the marine mammals 

in the area of the activities for which 

take is authorized, including 

information on abundance, status, 

distribution, and hearing, may be found 

in the Federal Register notice of the 

proposed IHA for the initial 

authorization (85 FR 48179; August 10, 

2020). NMFS has reviewed the 

monitoring data from the initial IHA, 

recent draft Stock Assessment Reports 

(SARs), Technical Reports (e.g., Pace 

2021), information on relevant Unusual 

Mortality Events (UMEs), and other 

scientific literature, and determined that 

neither this nor any other information 

alters which species or stocks have the 

potential to be affected or the pertinent 

information in the Description of the 

Marine Mammals in the Area of 

Specified Activity contained in the 

supporting documents for the initial 

IHA. 

The draft 2021 SARs, available online 

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

national/marine-mammal-protection/ 

draft-marine-mammal-stockassessment-reports) state that estimated 

abundance has increased for the 

Western North Atlantic stocks of 

common dolphins (from 172,825 (CV = 

0.21) to 172,974 (CV = 0.21)), and gray 

seals (from 27,131 (CV = 0.19) to 27,300 

(CV = 0.22)). Abundance estimates have 

decreased for the following species: The 

Western North Atlantic stocks of fin 

whales (from 7,418 (CV = 0.25) to 6,802 

(CV = 0.24)), Risso’s dolphins (from 

35,293 (CV = 0.19 to 35,215 (CV = 

0.19)), harbor seals (from 75,834 (CV = 

0.15) to 61,336 (CV = 0.22)), and the 

Canadian East coast stock of minke 

whales (from 24,202 (CV = 0.3) to 

21,968 (CV=0.31)). The abundance 

estimate for the Western North Atlantic 

stock of North Atlantic right whales has 

also been updated in the draft 2021 

SAR, which states that right whale 

abundance has decreased from 428 to 

368 (95 percent CI 356–378) individuals 

(Hayes et al., 2021). 


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NMFS has determined that neither the 

updated abundance information 

presented above nor any other new 

information affects which species or 

stocks have the potential to be affected 

or the pertinent information in the 

Description of the Marine Mammals in 

the Area of Specified Activity contained 

in the supporting documents for the 

initial IHA. 

Potential Effects on Marine Mammals 

and Their Habitat 

A description of the potential effects 

of the specified activity on marine 

mammals and their habitat for the 

activities for which take is authorized 

may be found in the Federal Register 

notices of the proposed (85 FR 48179; 

August 10, 2020) and final (85 FR 

63508, October 8, 2020; 85 FR 71058, 

November 6, 2020) initial IHAs. NMFS 

has reviewed the most recent 

information relevant to this Renewal 

IHA (monitoring data from the initial 

IHA, recent draft SARs, Technical 

Reports (e.g., Pace 2021), information on 

relevant Unusual Mortality Events, and 

other scientific literature and data), and 

determined that there is no new 

information that affects our initial 

analysis of impacts on marine mammals 

and their habitat. 

Estimated Take 

A detailed description of the methods 

and inputs used to estimate take for the 

specified activity are found in the 

Notices of the proposed (85 FR 48179; 

August 10, 2020) and final (85 FR 

63508; October 8, 2020) IHAs for the 

initial authorization. Specifically, the 

acoustic source types, source levels, and 

days of operation applicable to this 

authorization remain unchanged from 

the previously issued initial IHA. 

Similarly, the methodology for 

calculating take, and thus 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 do 

the number of takes for each species or 

stock, which are indicated below in 

Table 2. 

TABLE 2—AUTHORIZED TAKE BY LEVEL B HARASSMENT

Species Abundance 

estimate 1

Authorized 

take 

Percent 

population 

North Atlantic right whale ................................ Eubalaena glacialis ........................................ 368 37 10.05 

Humpback whale ............................................ Megaptera novaeangliae ................................ 1,396 21 1.50 

Fin whale ......................................................... Balaenoptera physalus ................................... 6,802 36 0.53 

Sei whale ........................................................ Balaenoptera borealis .................................... 6,292 2 0.0 

Minke whale .................................................... Balaenoptera acutorostrata ............................ 21,968 13 0.06 

Sperm whale ................................................... Physeter macrocephalus ................................ 4,349 3 0.07 

Long-finned pilot whale ................................... Globicephala melas ........................................ 39,215 69 0.18 

Bottlenose dolphin (W.N.A. offshore) ............. Tursiops truncatus .......................................... 62,851 419 0.67 

Common dolphin ............................................. Delphinus delphis ........................................... 172,974 2,211 1.28 

Atlantic white-sided dolphin ............................ Lagenorhynchus acutus ................................. 93,233 418 0.45 

Atlantic spotted dolphin ................................... Stenella frontalis ............................................. 35,215 7 0.02 

Risso’s dolphin ................................................ Grampus griseus ............................................ 35,493 30 0.08 

Harbor porpoise .............................................. Phocoena phocoena ...................................... 95,543 916 0.96 

Harbor seal ..................................................... Phoca vitulina ................................................. 61,336 215 0.36 

Gray seal ......................................................... Halichoerus grypus ........................................ 27,300 215 0.79 

W.N.A. = Western North Atlantic. 

1Abundance estimates have been updated from the initial IHA (85 FR 63508; October 8, 2020) using the 2021 Draft SARs (Hayes et al., 

2021). 

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 (85 FR 63508, 

October 8, 2020), and the discussion of 

the least practicable adverse impact 

included in that document and the 

notice of the proposed Renewal IHA 

remains applicable. All mitigation, 

monitoring, and reporting measures in 

the initial IHA are carried over to this 

Renewal IHA and summarized below: 

• Ramp-up: A ramp-up procedure 

must be used for HRG equipment 

capable of adjusting energy levels at the 

start or re-start of survey activities. 

• Protected Species Observers (PSOs): 

A minimum of one NMFS-approved 

PSO must be on duty and conducting 

visual observations at all times during 

daylight hours (i.e., from 30 minutes 

prior to sunrise through 30 minutes 

following sunset), and two active duty 

PSOs must conduct observations 30 

minutes prior to and during nighttime 

ramp-ups and operation of HRG 

equipment. 

• Exclusion Zones (EZ): Marine 

mammal EZs must be established 

around the HRG survey equipment and 

monitored by PSOs during marine site 

characterization surveys as follows: A 

500-m EZ for North Atlantic right 

whales during use of impulsive acoustic 

sources (e.g., boomers and/or sparkers) 

and non-impulsive, non-parametric subbottom profilers (e.g., Chirps); and a 

100-m EZ for all other marine mammals 

during use of impulsive acoustic 

sources (e.g., boomers and/or sparkers). 

• Pre-Operation Clearance Protocols: 

;rsted must implement a 30-minute 

pre-start clearance period of the 

specified clearance zones (CZs; 500 m 

for North Atlantic right whales, 100 m 

for all other marine mammals) prior to 

the initiation of ramp-up of boomers, 

sparkers, and non-impulsive, nonparametric sub-bottom profilers (e.g., 

Chirps). During this period, the CZs 

must be monitored by PSOs using the 

appropriate visual technology. Ramp-up 

must not be initiated if any marine 

mammal(s) is within its respective CZ. 

If a marine mammal is observed within 

its respective CZ during the pre-start 

clearance period, ramp-up must not 

begin until the animal(s) has been 

observed exiting its respective CZ, or 

until an additional period has elapsed 

with no further sighting (i.e., 15 minutes 

for small odontocetes and seals, and 30 

minutes for all other species). Preclearance and ramp-up, but not 

shutdown, will be required when using 

only non-impulsive, non-parametric 

sub-bottom profilers (e.g., Chirps), 

except in the case that a North Atlantic 


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right whale is observed within the 500- 

m CZ. 

• Shutdown of HRG Equipment: If an 

HRG source is active and a marine 

mammal is observed entering or within 

a relevant EZ (as described above), an 

immediate shutdown of the HRG survey 

equipment is required. Note that this 

shutdown requirement is waived for 

certain genera of small delphinids. If a 

species for which authorization has not 

been granted, or, a species for which 

authorization has been granted but the 

authorized number of takes has been 

met, approaches or is observed within 

the Level B harassment zone (54 m, nonimpulsive; 141 m impulsive), shutdown 

must occur. 

• Vessel strike avoidance measures: 

Vessel strike avoidance measures 

include, but are not limited to, vessel 

separation distances for large whales 

(500 m North Atlantic right whales; 100 

m other large whales; 50 m other 

cetaceans and pinnipeds), restricted 

vessel speeds, and operational 

maneuvers. 

• Seasonal Operating Requirements: 

;rsted must limit to three the number 

of survey vessels that operate 

concurrently from January 1 through 

May 31 within the Lease Areas (OSC– 

A 0486/0517, OCS–A 0487, and OCS–A 

500) and ECR Area north of the Lease 

Areas up to, but not including, coastal 

and bay waters. ;rsted must operate 

either a single vessel, two vessels 

concurrently, or, for short periods, no 

more than three survey vessels 

concurrently in the areas described 

above from January 1 through May 31. 

This seasonal restriction will help to 

reduce both the number and intensity of 

North Atlantic right whale takes by 

Level B harassment. 

• Reporting: ;rsted must submit a 

final technical report within 90 days 

following completion of the surveys. In 

the event that ;rsted personnel discover 

an injured or dead marine mammal, 

;rsted must report the incident to 

NMFS Office of Protected Resources 

(OPR) (PR.ITP.MonitoringReports@

noaa.gov and itp.esch@noaa.gov) and to 

the New England/Mid-Atlantic Regional 

Stranding Coordinator through the 

NOAA Fisheries Marine Mammal and 

Sea Turtle Stranding and Entanglement 

Hotline (866–755–6622) as soon as 

feasible. In the event of a ship strike of 

a marine mammal by any vessel 

involved in the activities covered by the 

authorization, ;rsted must report the 

incident immediately to NMFS OPR and 

to the New England/Mid-Atlantic 

Regional Stranding Coordinator through 

the NOAA Fisheries Marine Mammal 

and Sea Turtle Stranding and 

Entanglement Hotline. ;rsted must 

immediately cease all project activities 

until NMFS OPR is able to review the 

circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the 

proposed Renewal IHA. 

Comments and Responses 

A notice of NMFS’ proposal to issue 

a Renewal IHA to ;rsted was published 

in the Federal Register on January 6, 

2022 (87 FR 756). That notice either 

described, or referenced descriptions of, 

;rsted’s activity, the marine mammal 

species that may be affected by the 

activity, anticipated effects on marine 

mammals and their habitat, estimated 

amount and manner of take, and 

proposed mitigation, monitoring and 

reporting measures. NMFS received 

comments from a group of 

environmental non-governmental 

organizations (ENGOs) including the 

Natural Resources Defense Council, 

Conservation Law Foundation, 

Defenders of Wildlife, Whale and 

Dolphin Conservation, National Wildlife 

Federation, NY4WHALES, and the 

Southern Environmental Law Center. 

However, the comments consisted of a 

short cover letter with a subject line and 

comments referring to the issuance of an 

IHA for the construction of a different 

project (87 FR 806; January 6, 2022), and 

an attached set of previously submitted 

recommendations related to right whale 

mitigation for the site assessment and 

characterization phases and 

construction phases of offshore wind 

development more generally. That other 

project occupies a small portion of 

;rsted’s survey area for this Renewal 

IHA, and the relevant issued IHA would 

be effective during a different time from 

when this Renewal IHA would be 

effective. NMFS thus did not receive 

any comments relevant to the issuance 

of this Renewal IHA. Nevertheless, 

given the more general nature of some 

of the issues raised in the ENGOs’ 

appended recommendations, NMFS 

reviewed the comments. To the extent 

that some of the issues may be relevant 

to this Renewal IHA, the pertinent 

comments and our responses are 

summarized below. 

Comment 1: The ENGOs objected to 

NMFS’ process to consider extending 

any 1-year IHA with a truncated 15-day 

comment period, claiming that it is 

contrary to the MMPA. 

Response: NMFS’ IHA renewal 

process meets all statutory 

requirements. All IHAs issued, whether 

an initial IHA or a Renewal IHA, are 

valid for a period of not more than one 

year. The public has at least 30 days to 

comment on all proposed IHAs, with a 

cumulative total of 45 days for IHA 

Renewals. As noted above, the Request 

for Public Comments section in the 

notice of the proposed initial IHA made 

clear that the agency was seeking 

comment on both the proposed initial 

IHA and the potential issuance of a 

renewal for this project. Because any 

renewal (as explained in the Request for 

Public Comments section) is limited to 

another year of identical or nearly 

identical activities in the same location 

(as described in the Description of the 

Proposed Activity section) or the same 

activities that were not completed 

within the 1-year period of the initial 

IHA, reviewers have the information 

needed to effectively comment on both 

the immediate proposed IHA and a 

possible 1-year renewal, should the IHA 

holder choose to request one. 

While there are additional documents 

submitted with a renewal request, for a 

qualifying renewal these are limited to 

documentation that NMFS will 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 will also confirm, 

among other things, that the activities 

will 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 must also 

contain a preliminary monitoring report, 

but that is 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 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. NMFS also will 

provide direct notice of the proposed 

renewal to those who commented on the 

initial IHA, to provide an opportunity to 

submit any additional comments. 

Between the initial 30-day comment 

period on these same activities and the 

additional 15 days, the total comment 

period for a renewal is 45 days. 

In addition to the IHA Renewal 

process being consistent with all 

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

it is also consistent with Congress’s 

intent for issuance of IHAs to the extent 

reflected in statements in the legislative 

history of the MMPA. Through the 

provision for renewals in the 


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regulations, 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 this, 

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 decision-making process.’’ 

In prior responses to comments about 

IHA Renewals (e.g., 84 FR 52464, 

October 02, 2019; 85 FR 53342, August 

28, 2020; 86 FR 33664, June 25, 2021; 

87 FR 806, January 6, 2022), NMFS has 

explained how the renewal process, as 

implemented, is consistent with the 

statutory requirements contained in 

section 101(a)(5)(D) of the MMPA, 

provides additional efficiencies beyond 

the use of abbreviated notices, and, 

further, promotes NMFS’ goals of 

improving conservation of marine 

mammals and increasing efficiency in 

the MMPA compliance process. 

Therefore, we intend to continue 

implementing the renewal process. For 

more information, NMFS has published 

a description of the renewal process on 

our website (available at https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentalharassment-authorization-renewals). 

Comment 2: The ENGOs 

recommended that NMFS should 

require all project vessels to adhere to 

a 10-knot (18.5 km/hr) speed restriction 

at all times, and in all places except in 

limited circumstances where the best 

available scientific information 

demonstrates that whales do not occur 

in the area. As a mechanism for 

modifying this speed restriction, the 

ENGOs suggest that the project 

proponent develop and implement, in 

consultation with NMFS, an Adaptive 

Plan that is scientifically proven to be 

equally or more effective than a 10-knot 

(18.5 km/hr) speed restriction. 

Response: ;rsted communicated to 

NMFS that marine site characterization 

vessels (both survey and supporting) 

travel at 10 knots or less while in transit 

and during the surveys. During active 

surveying, speeds are generally 

significantly less (in the range of 3–5 

knots) although this is dependent on the 

type of equipment and survey. 

NMFS has analyzed the potential for 

ship strike resulting from ;rsted’s 

activity and has determined that the 

mitigation measures specific to ship 

strike avoidance are sufficient to avoid 

the potential for ship strike. These 

include, but are not limited to the 

survey vessel crew members responsible 

for navigation duties must receive sitespecific training on marine mammal 

sighting/reporting and vessel strike 

avoidance measures; the vessel operator 

and crew must maintain a vigilant 

watch for all large whale species 

(including the North Atlantic right 

whale); a requirement that all vessel 

operators comply with the 10 knot (18.5 

km/hour) or less speed restriction while 

underway in any established Seasonal 

Management Areas (SMAs), or Dynamic 

Management Areas (DMAs); a 

requirement that all vessel operators 

reduce vessel speed to 10 knots (18.5 

km/hour) or less when any large whale, 

mother/calf pairs, pods, or large 

assemblages of non-delphinid cetaceans 

are observed within 100 m of an 

underway vessel; a requirement that all 

survey vessels maintain a separation 

distance of at least 500 m from any 

sighted North Atlantic right whale; a 

requirement that, if underway, vessels 

must steer a course away from any 

sighted North Atlantic right whale at 10 

knots (18.5 km/hr) or less until the 500- 

m minimum separation distance has 

been established; a requirement that all 

vessels must maintain a minimum 

separation distance of 100 m from 

sperm whales and other baleen whales; 

and a requirement that all vessels must, 

to the maximum extent practicable, 

attempt to maintain a minimum 

separation distance of 50 m from all 

other marine mammals, with an 

understanding that at times this may not 

be possible (e.g., for animals that 

approach the vessel). We have 

determined the existing ship strike 

avoidance measures are sufficient to 

ensure the least practicable adverse 

impact on species or stocks and their 

habitat. Further, NMFS is not aware of 

a wind industry vessel (e.g., marine site 

characterization survey vessel or wind 

energy vessels used in European wind 

project construction and operation) 

reporting a ship strike to date. 

Regarding the ENGOs’ suggestion that 

project proponents should coordinate 

with NMFS to develop an Adaptive Plan 

for potential modification of vessel 

speed restrictions for future projects, 

NMFS will consider specific proposals 

for the development, quantitative 

evaluation, and implementation of such 

a Plan, should that information become 

available in the future. 

Comment 3: The ENGOs recommend 

that NMFS prohibit site characterization 

surveys during times of highest risk to 

North Atlantic right whales, which they 

define as times of highest relative 

density of animals during foraging and 

migration, and times when mother-calf 

pairs, pregnant females, surface active 

groups, or aggregations of three or more 

whales are, or, are expected to be, 

present. The ENGOs suggest that these 

time periods should be defined based on 

the best available scientific information 

at the time of the survey activity. 

Finally, the ENGOs suggest that the 

development and scientific validation of 

a near real-time monitoring system and 

mitigation protocol for North Atlantic 

right whales and other large whale 

species could be used to dynamically 

manage the timing of site assessment 

and characterization activities to ensure 

that those activities are undertaken 

during times of lowest risk for all 

relevant larges whales species. 

Response: NMFS is requiring ;rsted 

to operate no more than three 

concurrent survey vessels, with HRG 

survey equipment operating at or below 

180 kHz, from January 1 through May 31 

within the Lease Areas and ECRs, not 

including coastal and bay waters. This 

seasonal restriction aligns with the 

timeframe during which North Atlantic 

right whale densities are highest in the 

project area, based on Roberts (2020) 

and Robert et al. (2021), which 

incorporated more recent survey data 

(through 2018) and that for the first time 

included data from the 2011–2015 

surveys of the MA and RI/MA wind 

energy areas (WEAs; Kraus et al. 2016) 

as well as the 2017–2018 continuation 

of those surveys, known as the Marine 

Mammal Surveys of the Wind Energy 

Areas (MMS–WEA) (Quintana et al., 

2018). We believe these models provide 

the best available scientific information 

to quantify temporal and spatial 

patterns of North Atlantic right whale 

occurrence in the project area. The 

seasonal restriction will limit the 

number and intensity of potential take 

by Level B harassment resulting from 

exposure to active HRG equipment (i.e., 

boomers, sparkers, and Chirps). NMFS 

is also requiring ;rsted to comply with 

vessel speed restrictions associated with 

SMAs, and DMAs if any are established 

near the project area. Prior to and during 

survey operations, ;rsted must consult 

the NOAA Right Whale Sightings 

Advisory System and WhaleMap for 

situational awareness of recent sighting 

locations. Should North Atlantic right 

whales be observed while HRG survey 

equipment is active, ;rsted must abide 

by a mandatory 500-m shutdown zone, 

which is more than three times as large 

as the greatest distance to the Level B 

harassment isopleth (141 m). Finally, 

the ship strike avoidance and minimum 

separation requirements described in 

response to Comment 2 further 


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minimize the potential impacts of site 

characterization surveys on North 

Atlantic rights whales. 

The ENGOs suggested that a real-time 

monitoring system and mitigation 

protocol for North Atlantic right whales 

would be useful to dynamically manage 

the timing of site characterization 

survey activities, although it is not clear 

if the suggested system and protocol is 

based on acoustic or visual monitoring, 

or both. NMFS is generally supportive 

of these concepts. A network of near 

real-time baleen whale monitoring 

devices are active or have been tested in 

portions of New England and Canadian 

waters. These systems employ various 

digital acoustic monitoring instruments 

that have been placed on autonomous 

platforms including slocum gliders, 

wave gliders, profiling floats and 

moored buoys. Systems that have 

proven to be successful will likely see 

increased use as operational tools for 

many whale monitoring and mitigation 

applications. In 2020, NMFS convened 

a workshop to address objectives related 

to monitoring North Atlantic right 

whales. The NMFS publication 

‘‘Technical Memorandum 

NMFS-OPR-64: North Atlantic Right 

Whale Monitoring and Surveillance: 

Report and Recommendations of the 

National Marine Fisheries Service’s 

Expert Working Group’’, available at: 

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

resource/document/north-atlantic-rightwhale-monitoring-and-surveillancereport-and-recommendations, 

summarizes information from the 

workshop and presents the Expert 

Working Group’s recommendations for a 

comprehensive monitoring strategy to 

guide future analyses and data 

collection. Among the numerous 

recommendations found in the report, 

the Expert Working Group encouraged 

the widespread deployment of autobuoys to provide near real-time 

detections of North Atlantic right whale 

calls that visual survey teams can then 

respond to for collection of 

identification photographs or biological 

samples. 

The type of dynamic monitoring 

system and mitigation protocol 

suggested by the commenters has not 

been proposed by any applicant, 

including ;rsted, when applying for an 

IHA to conduct the type of work 

analyzed here. As discussed above, the 

seasonal restriction (January 1 through 

May 31) already serves to reduce 

temporal and spatial overlap between 

;rsted’s marine site characterization 

surveys and times during which North 

Atlantic right whale occurrence is 

expected to be highest in the project 

area. In addition, NMFS cannot require 

project proponents to be part of a 

monitoring network such as the one 

described above until such a network of 

monitoring devices is available. 

However, NMFS will consider how to 

best incorporate the use of such systems 

in the future should such a network be 

developed. 

Comment 4: The ENGOs 

recommended that site characterization 

surveys should not be initiated within 

1.5 hours of civil sunset or in times of 

low visibility when the visual clearance 

zone and exclusion zone cannot be 

visually monitored, as determined by 

the lead PSO. 

Response: NMFS acknowledges the 

limitations inherent in detection of 

marine mammals at night. However, no 

injury is expected to result from 

exposure to HRG equipment, even in the 

absence of mitigation, given the 

characteristics of the sources planned 

for use (supported by the very small 

estimated Level A harassment zones; 

i.e., <54 m for all impulsive sources). 

The ENGOs do not provide any support 

for the apparent contention that injury 

is a potential outcome of these 

activities. Regarding Level B 

harassment, any potential impacts 

would be limited to short-term 

behavioral responses. The commenters 

establish that the status of North 

Atlantic right whales in particular is 

precarious. NMFS agrees in general with 

the discussion of this status provided by 

the commenters. Note that NMFS 

considers impacts from this category of 

survey operations to be near de 

minimis, with the potential for Level A 

harassment for any species to be 

discountable and the severity of Level B 

harassment (and, therefore, the impacts 

of the take event on the affected 

individual), if any, to be low. 

Commenters provide no evidence to the 

contrary. NMFS is also requiring ;rsted 

to employ a PSO during nighttime hours 

who must have access to night-vision 

equipment (i.e., night-vision goggles 

and/or infrared technology). Given these 

factors, NMFS has determined that more 

restrictive mitigation requirements are 

not warranted. 

Restricting surveys in the manner 

suggested by the commenters may 

reduce marine mammal exposures by 

some degree in the short term, but 

would not result in any significant 

reduction in either intensity or duration 

of noise exposure over the course of the 

surveys. In fact, the restrictions 

recommended by the commenters could 

result in the surveys spending increased 

total time on the water introducing 

noise into the marine environment, 

which may result in greater overall 

exposure to sound for marine mammals; 

thus, the commenters have not 

demonstrated that such a requirement 

would result in a net benefit. 

Furthermore, restricting the ability of 

the applicant to begin operations only 

during daylight hours would have the 

potential to result in lengthy shutdowns 

of the survey equipment, which could 

result in the applicant failing to collect 

the data they have determined is 

necessary and, subsequently, the need 

to conduct additional surveys in the 

future. This would result in 

significantly increased costs incurred by 

the applicant. Thus, the restriction 

suggested by the commenters would not 

be practicable for the applicant to 

implement. In consideration of the 

likely effects of the activity on marine 

mammals absent mitigation, potential 

unintended consequences of the 

measures as proposed by the 

commenters, and practicability of the 

recommended measures for the 

applicant, NMFS has determined that 

restricting operations as recommended 

is not warranted or practicable in this 

case. 

Comment 5: The ENGOs 

recommended that NMFS should 

require project proponents to implement 

visual clearance and exclusion zones of 

at least 500 m for all large whale 

species, except North Atlantic right 

whales, for which they recommended 

1,000-m visual and acoustic clearance 

and exclusion zones. To the monitor the 

acoustic zones, the ENGOs recommend 

utilizing near real-time passive acoustic 

monitoring (PAM) from a vessel other 

than the dedicated survey vessel, or 

from a stationary unit. 

Response: NMFS disagrees with these 

recommendations for this Renewal IHA. 

Regarding the clearance and shutdown 

zone recommendations, we note that the 

500-m exclusion zone for North Atlantic 

right whales exceeds the modeled 

distance to the Level B harassment 

isopleth (141 m) by a substantial 

margin. Given that calculated Level B 

harassment isopleths are likely 

conservative, and NMFS considers 

impacts from HRG survey activities to 

be near de minimis, a 100-m shutdown 

zone for other marine mammal species 

(including large whales and strategic 

stocks of small cetaceans) is sufficiently 

protective to effect the least practicable 

adverse impact on those species and 

stocks. Further, no injury is expected to 

result even in the absence of mitigation, 

given the characteristics of the sources 

planned for use (supported by the very 

small estimated Level A harassment 

zones; i.e., <36.5 m for all impulsive 

sources). 

There are several reasons why we do 

not agree that use of PAM is warranted 


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for ;rsted’s 24-hour HRG surveys. 

While NMFS agrees that PAM can be an 

important tool for augmenting detection 

capabilities in certain circumstances, its 

utility in further reducing impact for 

;rsted’s HRG survey activities is 

limited. We note first using a towed 

passive acoustic sensor(s) to detect 

baleen whales (including North Atlantic 

right whales) is not ideal for monitoring 

low-frequency vocalizing baleen whales 

because calls are masked by ship and 

flow noise, and vessel presence can alter 

vocal behavior of the study animals 

(Lesage et al., 1999; Thode, 2004; Norris 

et al., 2012; Guerra et al., 2014; 

Heinemann et al., 2016). 

Vessels produce low-frequency noise, 

primarily through propeller cavitation, 

with the main energy in the 5–300 Hertz 

(Hz) frequency range. Source levels 

range from approximately 140 to 195 

decibels (dB) re 1 micropascal (mPa) at 

1 m (NRC, 2003; Hildebrand, 2009), 

depending on factors such as ship type, 

load, and speed, and ship hull and 

propeller design. Studies of vessel noise 

show that it appears to increase 

background noise levels in the 71–224 

Hz range by 10–13 dB (Hatch et al., 

2012; McKenna et al., 2012; Rolland et 

al., 2012). PAM systems employ 

hydrophones towed in streamer cables 

approximately 500 m behind a vessel. 

Noise from water flow around the cables 

and from strumming of the cables 

themselves is also low frequency and 

typically masks signals in the same 

range (i.e., most baleen whale 

vocalizations). Whales are routinely 

detected acoustically using moored 

systems and sonobuoys, or using 

autonomous gliders. However, these 

platforms are all quiet. Providers of 

observer services, including PAM, 

report that they have never detected a 

baleen whale (other than rare detections 

of humpback whales, which have 

significantly higher frequency content 

in their calls) using towed PAM. 

Even if a right whale could be 

detected using towed PAM, the area 

expected to be ensonified above the 

Level B harassment threshold is 

relatively small (≤141 m) and, inasmuch 

as PAM will only detect a portion of any 

animals exposed within a zone, the 

overall probability of PAM detecting an 

animal in the harassment zone is low, 

supporting the limited value of PAM for 

use in reducing take with smaller zones. 

In addition, if a PAM system was 

deployed from a secondary vessel, that 

vessel will still have to travel at 4 knots 

to accompany the survey vessel, leading 

to the same limitations when using 

towed PAM. Finally, if a stationary 

PAM unit were deployed (assuming its 

location is within relatively close 

proximity to the starting position of the 

survey vessel), the unit would have to 

be equipped to localize North Atlantic 

right whale calls, for example, to 

positions within the clearance and 

exclusion zones (regardless of size) 

relative to the changing position of a 

transiting survey vessel. Even if 

localization is possible, it becomes 

impracticable once the vessel moves out 

of the detection and localization range 

of the stationary unit. 

Many of the ENGO recommendations 

included acoustic monitoring of 

clearance and exclusion zones. Given 

that the effects to marine mammals from 

the types of surveys authorized in this 

IHA are expected to be limited to a 

small amount of low-level behavioral 

harassment, even in the absence of 

mitigation, the additional benefit 

anticipated for North Atlantic right 

whales by adding this detection method 

would be essentially non-existent. 

Given the lack of efficacy, the logistical 

challenges, and the cost of 

implementing a full-time PAM program, 

we have determined the current 

requirements for visual monitoring are 

sufficient to ensure the least practicable 

adverse impact on the affected species 

or stocks and their habitat. For the 

reasons described above, NMFS’ 

responses to additional comments do 

not include references to acoustic 

monitoring during site characterization 

surveys. Please see the ENGOs’ full 

comment letter for information 

regarding their general 

recommendations for acoustic 

monitoring, which can be found here: 

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

incidental-take-authorization-orstedwind-power-north-america-llc-sitecharacterization. 

Comment 6: The ENGOs 

recommended that NMFS should 

require project proponents to (1) 

conduct visual monitoring of the 

clearance zone beginning 30 minutes 

prior to commencement or re-initiation 

of, and continuing throughout, survey 

activities, (2) delay survey activities if a 

North Atlantic right whale, or other 

large whale species, is detected within 

the relevant clearance zone, (3) 

shutdown survey activities upon a 

visual detection of any of these species 

within the species-specific exclusion 

zone and, if shutdown occurs, (4) 

resume or initiate survey activities only 

after the lead PSO confirms that no 

North Atlantic right whales or other 

large whale species have been visually 

detected in the relevant clearance zones 

for 30 minutes. 

The ENGOs suggested that these 

measures should be implemented 

during site characterization activities 

with noise levels that could result in 

injury or harassment to large whales. 

Response: No injury is expected to 

result from site characterization surveys, 

even in the absence of mitigation, given 

the characteristics of the sources 

planned for use (supported by the very 

small estimated Level A harassment 

zones; i.e., <36.5 m for all impulsive 

sources). The ENGOs do not provide 

any support for the apparent contention 

that injury is a potential outcome of 

these activities. Only take by Level B 

harassment is anticipated and 

authorized. 

NMFS does agree that monitoring of 

a clearance zone should begin 30 

minutes prior to commencement or 

resumption of use of HRG survey 

equipment that may incidentally harass 

marine mammals following a delay or 

shutdown. NMFS also agrees that visual 

detection of a species (including North 

Atlantic right whales) within its 

respective clearance zone during the 30- 

minute clearance period or exclusion 

zone when acoustic sources are active 

should trigger a delay or shutdown, 

respectively, of survey activities. 

Finally, as suggested by the ENGOs, in 

order for survey activities to commence 

or resume, the lead PSO must confirm 

that no North Atlantic right whale or 

other baleen whale has been sighted in 

the clearance zone during the clearance 

period. Thus, these measures are 

required by all authorizations for take 

incidental to site characterization 

activities. 

Comment 7: The ENGOs stated that it 

is their general view that NMFS must 

require a minimum of four PSOs on 

survey vessels following a two-on, twooff rotation, each responsible for 

scanning no more than 180° of the 

horizon. 

Response: NMFS typically requires 

that a single PSO must be stationed at 

the highest vantage point and engaged 

in general 360-degree scanning during 

daylight hours. Although NMFS 

acknowledges that the single PSO 

cannot reasonably maintain observation 

of the entire 360-degree area around the 

vessel, it is reasonable to assume that 

the single PSO engaged in continual 

scanning of such a small area (i.e., 500- 

m exclusion zone for North Atlantic 

right whales, which is more than three 

times the maximum 141-m Level B 

harassment zone) will be successful in 

detecting marine mammals that are 

available for observation at the surface. 

Further, ;rsted is required to deploy 

two PSOs for nighttime survey 

activities, during which the PSOs will 

have access to night vision devices. 

The monitoring report for the initial 

IHA, as well as monitoring reports for 


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similar marine site assessment and 

characterization surveys (which can be 

found here https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-other-energyactivities-renewable), submitted to 

NMFS have demonstrated that PSOs 

active only during daylight operations 

are able to detect marine mammals and 

implement appropriate mitigation 

measures. Nevertheless, as night vision 

technology has continued to improve, 

NMFS has adapted its practice. NMFS 

has included a requirement in the initial 

IHA and this Renewal IHA that nightvision equipment (i.e., night-vision 

goggles and/or infrared technology) 

must be available for use during 

nighttime monitoring. Under the issued 

Renewal IHA, survey operators are not 

required to provide PSOs with infrared 

devices during the day but observers are 

not prohibited from employing them. 

Given that use of infrared devices for 

detecting marine mammals during the 

day has been shown to be helpful under 

certain conditions, NMFS will consider 

requiring them to be made accessible for 

daytime PSOs in the future, as more 

information becomes available regarding 

this technology. NMFS is also requiring 

that all PSOs be equipped with 

binoculars and have the ability to 

estimate distances to marine mammals 

located in proximity to the vessel and/ 

or exclusion zones. We have determined 

that the PSO requirements in the IHA 

are sufficient to ensure the least 

practicable adverse impact on the 

affected species or stocks and their 

habitat. 

Comment 8: The ENGOs 

recommended that NMFS should 

require operation of sub-bottom 

profiling systems at the lowest 

practicable source level for the survey 

objectives. 

Response: ;rsted has selected the 

equipment necessary to achieve their 

objectives. We have evaluated the 

effects expected as a result of use of this 

equipment, made the necessary 

findings, and imposed 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 constitutes the ‘‘lowest practicable 

source level’’ for an operator’s survey 

objectives. 

Comment 9: The ENGOs 

recommended that (1) NMFS require 

project proponents to report 

observation(s) of a North Atlantic right 

whale(s) to NMFS or the USCG as soon 

as possible, but no later than the end of 

the PSO shift during which the 

observation(s) occurred, and (2) ;rsted 

should be required to immediately 

report an entangled or dead North 

Atlantic right whale or other large whale 

species to NMFS OPR, NOAA Fisheries 

Marine Mammal and Sea Turtle 

Stranding and Entanglement Hotline 

(866–755–6622; also the North Atlantic 

Right Whale Sighting Advisory System), 

or the USCG via available reporting 

systems (e.g., phone, app, radio). In 

addition, the ENGOs encourage project 

proponents to commit to supporting and 

participating in future advancing/ 

streamlining efforts for methods of 

reporting. Finally, the ENGOs suggest 

that quarterly reports of PSO sightings 

data should be made publicly available 

to inform marine mammal science and 

protection. 

Response: NMFS agrees with the 

ENGOs’ first and second 

recommendations, hence the inclusion 

of these measures in both the initial and 

Renewal IHAs. Regarding reporting 

methods, NMFS agrees with the ENGOs 

and supports efforts to improve methods 

by which a sighting of a live North 

Atlantic right whale, or entangled or 

dead North Atlantic right whale (or 

other large whale), is reported by a 

project proponent and we welcome 

specific proposals to do so. Finally, 

NMFS does not concur with the 

suggestion that ;rsted should submit 

quarterly PSO sightings data reports, 

and that these reports be made publicly 

available. ;rsted is required to submit a 

final report to NMFS within 90 days 

after completion of survey activities or 

expiration of this IHA, whichever comes 

sooner. The report must fully document 

the methods and monitoring protocols, 

summarize the data recorded during 

monitoring, and describe, assess, and 

compare the effectiveness of monitoring 

and mitigation measures. The ENGOs 

did not provide specific examples 

regarding how making PSO sightings 

data publicly available on a quarterly 

basis would inform marine mammal 

science and protection in any 

meaningful way on this timescale. PSO 

sightings data (as well as all of the 

additional information required in a 

final report) are included in PSO 

monitoring reports from previous 

marine site characterization surveys, 

including the PSO monitoring report 

from the initial IHA that NMFS is 

renewing, which can be found here: 

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

national/marine-mammal-protection/ 

incidental-take-authorizations-otherenergy-activities-renewable. As noted 

above, ;rsted is already required to 

immediately report all North Atlantic 

right whale sightings to the NMFS North 

Atlantic Right Whale Sighting Advisory 

System (866) 755–6622) and to the U.S. 

Coast Guard via channel 16, providing 

mariners in the area with awareness of 

North Atlantic right whale locations 

and, thus, the opportunity to proactively 

reduce vessel speeds. In addition, 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 

quarterly PSO reports is warranted and 

we have not included this measure in 

the authorization. 

Determinations 

The survey activities proposed by 

;rsted are identical to those analyzed in 

the initial IHA, including the planned 

number of days and location of activity, 

as are the method of taking and the 

effects of the action. Therefore, the 

amount of authorized take is equal to 

that authorized in the initial IHA. The 

mitigation measures and monitoring and 

reporting requirements, as described 

above, are identical to the initial IHA. 

The potential effect of ;rsted’s activities 

remains limited to Level B harassment 

in the form of behavioral disturbance. In 

analyzing the effects of the activities in 

the initial IHA, NMFS determined that 

;rsted’s activities would have a 

negligible impact on the affected species 

or stocks and that the authorized take 

numbers of each species or stock were 

small relative to the relevant stocks (e.g., 

less than one-third of the abundance of 

all stocks). 

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 Orsted’s 

monitoring report, the estimated 

abundances of five stocks (North 

Atlantic right whales, fin whales, minke 

whales, Risso’s dolphins, and harbor 

seals) decreasing, and the estimated 

abundances of two stocks (common 

dolphins and gray seals) increasing 

(Hayes et al., 2021). Based on the 

information and analysis contained here 

and in the referenced documents, NMFS 

has determined the following: (1) The 

required mitigation measures will effect 

the least practicable adverse impact on 

marine mammal species or stocks and 


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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) ;rsted’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 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must evaluate our 

proposed action (i.e., issuance of 

incidental harassment authorization) 

and alternatives with respect to 

potential impacts on the human 

environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 of the 

Companion Manual for NAO 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 has determined that the issuance 

of the Renewal IHA qualifies to be 

categorically excluded from further 

NEPA review. 

Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.) requires that each Federal agency 

insure that any action it authorizes, 

funds, or carries out is not likely to 

jeopardize the continued existence of 

any endangered or threatened species or 

result in the destruction or adverse 

modification of designated critical 

habitat. To ensure ESA compliance for 

the issuance of IHAs, NMFS consults 

internally, in this case with the NMFS 

Greater Atlantic Regional Fisheries 

Office (GARFO), whenever we propose 

to authorize take of endangered or 

threatened species. 

The NMFS Office of Protected 

Resources is authorizing the incidental 

take of four species of marine mammals 

that are listed under the ESA: The North 

Atlantic right, fin, sei and sperm whale. 

We requested initiation of consultation 

under Section 7 of the ESA with NMFS 

GARFO on July 1, 2020, for issuance of 

the initial IHA. Previously, BOEM 

consulted with NMFS GARFO under 

section 7 of the ESA on commercial 

wind lease issuance and site assessment 

activities on the Atlantic Outer 

Continental Shelf in Massachusetts, 

Rhode Island, New York and New Jersey 

Wind Energy Areas. The NMFS GARFO 

issued a Biological Opinion in 2013 

concluding that these activities may 

adversely affect but are not likely to 

jeopardize the continued existence of 

the North Atlantic right, fin, sei and 

sperm whale. Upon request from the 

NMFS Office of Protected Resources, 

NMFS GARFO issued a Letter of 

Concurrence on September 24, 2020 

concluding that the initial IHA issuance 

fell under the scope of the 2013 

Biological Opinion and that the initial 

IHA issuance was not likely to adversely 

affect ESA-listed marine mammal 

species. The proposed Renewal IHA 

provides no new information about the 

effects of the action, nor does it change 

the extent of effects of the action, or any 

other basis to require reinitiation of 

consultation with NMFS GARFO; 

therefore, the consultation and 

determinations for the initial IHA 

remains valid. 

Renewal 

NMFS has issued a Renewal IHA to 

;rsted for the take of marine mammals 

incidental to marine site 

characterization survey activities 

offshore from New York to 

Massachusetts in the areas of the 

Commercial Lease of Submerged Lands 

for Renewable Energy Development on 

the Outer Continental Shelf (OCS–A 

0486/0517, OCS–A 0487, and OCS–A 

0500) (Lease Areas) and along potential 

submarine ECRs to landfall locations 

from New York to Massachusetts, 

effective from the date of issuance 

through September 24, 2022. 

Dated: March 7, 2022. 

Kimberly Damon-Randall, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2022–05102 Filed 3–10–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB879] 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Fisheries and Ecosystem 

Monitoring and Research Activities 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; receipt of application for 

letter of authorization; request for 

comments and information. 

SUMMARY: NMFS has received a request 

from the California Department of Fish 

and Wildlife (CDFW), on behalf of the 

Interagency Ecological Program (IEP), 

for authorization to take marine 

mammals incidental to conducting 

fisheries and ecosystem monitoring and 

research activities within the San 

Francisco Bay-Delta Estuary, CA, over 

the course of five years. Pursuant to 

regulations implementing the Marine 

Mammal Protection Act (MMPA), NMFS 

is announcing receipt of CDFW’s 

request for the development and 

implementation of regulations 

governing the incidental taking of 

marine mammals. NMFS invites the 

public to provide information, 

suggestions, and comments on CDFW’s 

application and request. 

DATES: Comments and information must 

be received no later than April 11, 2022. 

ADDRESSES: Comments on the 

application should be addressed to Jolie 

Harrison, Chief, Permits and 

Conservation Division, Office of 

Protected Resources, National Marine 

Fisheries Service and should be sent to 

ITP.Laws@noaa.gov. 

Instructions: NMFS is not responsible 

for comments sent by any other method, 

to any other address or individual, or 

received after the end of the comment 

period. Comments received 

electronically, including all 

attachments, must not exceed a 25- 

megabyte file size. All comments 

received are a part of the public record 

and will generally be posted online at 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-constructionactivities without change. All personal 

identifying information (e.g., name, 

address) voluntarily submitted by the 

commenter may be publicly accessible. 

Do not submit confidential business 

information or otherwise sensitive or 

protected information. 

FOR FURTHER INFORMATION CONTACT: Ben 

Laws, Office of Protected Resources, 

NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

Electronic copies of CDFW’s 

application and separate monitoring 

plan may be obtained online at: 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-research-and-otheractivities. In case of problems accessing 

these documents, please call the contact 

listed above. 


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