43212 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 

final decision on the request for MMPA 

authorization. 

On a case-by-case basis, NMFS may 

issue a one-time, 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, or nearly 

identical, activities as described in the 

Detailed Description of Specific Activity 

section of this notice is planned or (2) 

the activities as described in the 

Detailed Description of Specific Activity 

section of this 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, provided all of the 

following conditions are met: 

• 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); 

• The request for renewal must 

include the following: 

(1) An explanation that the activities 

to be conducted under the requested 

Renewal IHA are identical to the 

activities analyzed under the initial 

IHA, are a subset of the activities, or 

include changes so minor (e.g., 

reduction in pile size) that the changes 

do not affect the previous analyses, 

mitigation and monitoring 

requirements, or take estimates (with 

the exception of reducing the type or 

amount of take); and 

(2) 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; 

and 

• 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. 

Dated: August 2, 2021. 

Catherine Marzin, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–16858 Filed 8–5–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB227] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Marine Site 

Characterization Surveys, Virginia and 

North Carolina 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of 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 Kitty 

Hawk Wind, LLC (Kitty Hawk Wind) to 

incidentally harass, by Level B 

harassment, marine mammals during 

marine site characterization surveys 

offshore Virginia and North Carolina. 

DATES: The IHA is effective July 15, 

2021 through October 31, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Jaclyn Daly, Office of Protected 

Resources, NMFS, (301) 427–8401. 

Electronic copies of the application and 

supporting documents, 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 MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. sections 101(a)(5)(A) and (D) 

of the MMPA (16 U.S.C. 1361 et seq.) 

direct the Secretary of Commerce (as 

delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

incidental take authorization may be 

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 the species or stocks for 

taking for certain subsistence uses 

(referred to in shorthand as 

‘‘mitigation’’); and requirements 

pertaining to the mitigation, monitoring 

and reporting of the takings are set forth. 

Description of Proposed Activity 

Overview 

On April 27, 2021, NMFS received an 

adequate and complete application from 

Kitty Hawk Wind requesting an IHA 

authorizing the take, by Level B 

harassment only, of nine species of 

marine mammals incidental to marine 

site characterization surveys, 

specifically in association with the use 

of high-resolution geophysical (HRG) 

survey equipment off North Carolina. 

We note surveys will also occur off 

Virginia; however, for reasons described 

below, take of marine mammals 

incidental to use of those surveys is not 

expected to occur. The surveys will 

support offshore wind development in 

40 percent of the lease area (OCS–A 

0508) in the northwest corner closest to 

the North Carolina shoreline 

(approximately 198 square kilometers 

(km2)). Kitty Hawk Wind would use five 

types of survey equipment; however, as 

described below, only the Fugro SRP 

EAH 2D sparker has the potential to 

harass marine mammals. Exposure to 

noise from the surveys may cause 

behavioral changes in marine mammals 

(e.g., avoidance, increased swim speeds, 

etc.) rising to the level of take (Level B 

harassment) as defined under the 

MMPA. NMFS has issued the requested 

IHA. 

Dates and Duration 

Kitty Hawk Wind would commence 

the survey no earlier than July 15, with 

the objective of completing the work by 

September 31, 2021. The surveys would 

cover approximately 3,300 km of survey 

trackline over 25 days, not including 

non-survey days likely needed for 

weather down time. The IHA would be 

effective from July 15 through October 

31, 2021. Although the survey will 

likely be completed by September 31, 

2021, the additional month long 

effective period will allow for any 

unexpected weather delays while still 


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affording protection to select migratory 

marine mammal species. This schedule 

is based on 24-hour operations. 

Detailed Description of Specific Activity 

The purpose of Kitty Hawk Wind’s 

marine site characterization surveys is 

to support the siting of the proposed 

wind turbine generators and offshore 

export cables, providing a more detailed 

understanding of the seabed and subsurface conditions in the wind 

development area (WDA) and export 

cable corridor. 

Kitty Hawk Wind anticipates that 

during most of the survey only two 

vessels would be necessary, with one 

vessel operating nearshore and another 

operating offshore. However, up to three 

vessels may operate at any given time 

with final vessel choices dependent on 

the final survey design, vessel 

availability, and survey contractor 

selection. Concurrently operating 

vessels would remain at least 1 km 

apart. The vessels will be capable of 

maintaining course and a survey speed 

of approximately 3 knots (5.6 km per 

hour (hr)) while transiting survey lines. 

Surveys will be conducted along track 

lines spaced 300 m apart, with tie lines 

perpendicular to the main transect lines 

also spaced 300 m apart. 

Acoustic sources planned for use 

during HRG survey activities proposed 

by Kitty Hawk Wind include the 

following: 

• Medium penetration, impulsive 

sources (i.e., boomers and sparkers) are 

used to map deeper subsurface 

stratigraphy. A boomer is a broadband 

source operating in the 3.5 Hz to 10 kHz 

frequency range. Sparkers create 

omnidirectional acoustic pulses from 50 

Hz to 4 kHz. These sources are typically 

towed behind the vessel. 

Operation of the following survey 

equipment types is not expected to 

present reasonable risk of marine 

mammal take, and will not be discussed 

further beyond the brief summaries 

provided below. 

• Non-impulsive, parametric subbottom profilers (SBPs) are used for 

providing high data density in subbottom profiles that are typically 

required for cable routes, very shallow 

water, and archaeological surveys. 

These sources generate short, very 

narrow-beam (1° to 3.5°) signals at high 

frequencies (generally around 85–100 

kHz). The narrow beamwidth 

significantly reduces the potential that a 

marine mammal could be exposed to the 

signal, while the high frequency of 

operation means that the signal is 

rapidly attenuated in seawater. These 

sources are typically deployed on a pole 

rather than towed behind the vessel. 

• Ultra-short baseline (USBL) 

positioning systems are used to provide 

high accuracy ranges by measuring the 

time between the acoustic pulses 

transmitted by the vessel transceiver 

and a transponder (or beacon) necessary 

to produce the acoustic profile. It is a 

two-component system with a polemounted transceiver and one or several 

transponders mounted on other survey 

equipment. USBLs are expected to 

produce extremely small acoustic 

propagation distances in their typical 

operating configuration. 

• Multibeam echosounders (MBESs) 

are used to determine water depths and 

general bottom topography. The 

proposed MBESs all have operating 

frequencies >180 kHz and are therefore 

outside the general hearing range of 

marine mammals. 

Side scan sonars (SSS) are used for 

seabed sediment classification purposes 

and to identify natural and man-made 

acoustic targets on the seafloor. The 

proposed SSSs all have operating 

frequencies >180 kHz and are therefore 

outside the general hearing range of 

marine mammals. Table 1 identifies 

representative survey equipment 

proposed by Kitty Hawk Wind. The 

make and model of the listed 

geophysical equipment may vary 

depending on availability and the final 

equipment choices will vary depending 

upon the final survey design, vessel 

availability, and survey contractor 

selection. Not all sources within Table 

1 have the potential to result in take (for 

reasons described above); however, for 

completeness, we have included them 

here. Based on our assessment, only the 

Fugro SPR EAH 2D Sparker has the 

potential to result in the take of marine 

mammals. 

All decibel (dB) levels included in 

this notice are referenced to 1 

micoPascal. The root mean square 

decibel level (dBrms) represents the 

square root of the average of the 

pressure of the sound signal over a 

given duration. The peak dB level 

(dBpeak) represents the range in pressure 

between zero and the greatest pressure 

of the signal. Operating frequencies are 

presented in kilohertz (kHz). 

TABLE 1—SUMMARY OF REPRESENTATIVE HRG EQUIPMENT

HRG system Representative HRG survey 

equipment 

Operating 

frequencies 

kilohertz 

(kHz) 

Source 

level 

dBpeak

Source 

level 

dBrms

Pulse 

duration 

(ms) 

Beam 

width 

(degree) 

Subsea Positioning/ultra-short 

baseline positioning system 

(USBL) a.

Sonardyne Ranger 2 USBL ........ 35–50 200 188 16 180 

Sidescan Sonar a b ...................... Klein 3900 Side Scan Sonar ...... 445/900 226 220 0.016 to 0.100 1 to 2 

Parametric Shallow penetration 

sub-bottom profiler a.

Innomar parametric SES–2000 

Standard.

85 to 115 247 c 241 0.07 to 2 1 

Multibeam Echo Sounder a b ....... Reson T20–P .............................. 200/300/400 227 221 2 to 6 1.8 ± 0.2 

Multi-level Stacked Sparker ........ Fugro SPR EAH 2D Sparker 

(700 J).

0.4 to 3.5 d 223 d 213 d 0.5 to 3 180 

aPotential harassment from operation of this device is not anticipated. 

bOperating frequencies are above all relevant marine mammal hearing thresholds. 

cThe equipment specification sheets indicate a peak source level of 247 dB re 1 μPA m. The average difference between the peak and 

SPLRMS source levels for sub-bottom profilers measured by Crocker and Fratantonio (2016) was 6 dB. Therefore, the estimated SPLRMS 

sound level is 241 dB re 1 μPA m. dSound levels where not available from the manufacturer. Therefore, the source levels and pulse duration are based on data from Crocker 

and Fratantonio (2016) using the Applied Acoustics Dura-Spark as a comparable proxy. The source levels are based on an energy level of 1,000 

J with 240 tips and a bandwidth of 3.2 kHz. 

Mitigation, monitoring, and reporting 

measures contained within the IHA are 

described in detail later in this document (please see Mitigation and 

Monitoring and Reporting sections). 


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Comments and Responses 

A notice of proposed IHA was 

published in the Federal Register on 

May 25, 2021 (86 FR 28061). During the 

30-day public comment period, NMFS 

received one comment letter from the 

Southern Environmental Law Center 

(SELC), which submitted comments on 

behalf of Natural Resources Defense 

Council, National Wildlife Federation, 

Conservation Law Foundation, 

Defenders of Wildlife, Whale and 

Dolphin Conservation, Assateague 

Coastal Trust, the Nature Conservancy 

Virginia, North Carolina Wildlife 

Federation, Sierra Club Virginia 

Chapter, Surfrider Foundation, All Our 

Energy, Gotham Whale, International 

Marine Mammal Project of Earth Island 

Institute, Inland Ocean Coalition, Mass 

Audubon, NY4WHALES, Ocean 

Conservation Research, Oceanic 

Preservation Society, and Sanctuary 

Education Advisory Specialists. NMFS 

has posted the comment letter online at: 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/incidentaltake-authorizations-otherenergyactivities-renewable. A summary of the 

comments as well as NMFS’ responses 

are below. 

Comment 1: SELC recommends 

NMFS: (1) Fund analyses of recently 

collected sighting and acoustic data for 

all data-holders; (2) continue to fund 

and expand surveys and studies to 

improve our understanding of 

distribution and habitat use of marine 

mammals off North Carolina and 

Virginia, including within and adjacent 

to the Project Area, as well as 

throughout the broader Mid-Atlantic 

region, in the very near future; and (3) 

take a ‘‘precautionary approach’’ with 

regard to siting and mitigation when 

permitting offshore wind activities in 

areas for which species distribution data 

are limited. 

Response: NMFS agrees with SELC 

that continued surveys are warranted as 

is the analysis of collected data. We 

welcome the opportunity to participate 

in fora where implications of such data 

and development of a dataset would be 

discussed. Note, however, that NMFS 

will fund pertinent surveys based on 

agency priorities and budgetary 

considerations. Note that NOAA 

Fisheries recently published ‘‘Technical 

Memorandum NMFS–OPR–64: North 

Atlantic Right Whale (NARW) 

Monitoring and Surveillance: Report 

and Recommendations of the National 

Marine Fisheries Service’s Expert 

Working Group’’ (https://

www.fisheries.noaa.gov/resource/ 

document/north-atlantic-rightwhalemonitoring-and-surveillancereport-andrecommendations). This 

report includes recommendations for a 

comprehensive monitoring strategy to 

guide future analyses and data 

collection. NOAA Fisheries will 

consider the Expert Working Group’s 

recommendations, as well as other 

relevant information, in its decisionmaking about right whale research and 

population monitoring. 

Comment 2: SELC is concerned over 

use of the Roberts et al. 2020 density 

data to inform take estimates because 

they claim it excludes data obtained 

through additional sighting databases, 

passive acoustic monitoring (PAM), and 

satellite telemetry. They also contend 

that the density model uses data 

primarily from before 2010 and 

therefore does not reflect shifts in 

(NARW) distribution observed over the 

past five years (2017–2021). SELC 

contends that because the density maps 

produced by the Roberts et al. models 

do not fully reflect the abundance, 

distribution, and density of marine 

mammals for the U.S. East Coast, they 

cannot be the only information source 

relied upon when estimating take. They 

recommend NMFS consider any data 

from state monitoring efforts, PAM data, 

opportunistic marine mammal sightings, 

and other data sources. 

Response: Habitat-based density 

models produced by the Duke 

University Marine Geospatial Ecology 

Lab (MGEL) (Roberts et al. 2016, 2017, 

2018, 2020) represent the best available 

scientific information concerning 

marine mammal occurrence within the 

U.S. Atlantic Ocean. Density models 

were originally developed for all 

cetacean taxa in the U.S. Atlantic 

(Roberts et al., 2016); more information, 

including the model results and 

supplementary information for each of 

those models, is available at https://

seamap.env.duke.edu/models/Duke/ 

EC/. These models provided key 

improvements over previously available 

information, by incorporating additional 

aerial and shipboard survey data from 

NMFS and from other organizations 

collected over the period 1992–2014, 

incorporating 60 percent more 

shipboard and 500 percent more aerial 

survey hours than did previously 

available models; controlling for the 

influence of sea state, group size, 

availability bias, and perception bias on 

the probability of making a sighting; and 

modeling density from an expanded set 

of 8 physiographic and 16 dynamic 

oceanographic and biological covariates. 

In subsequent years, certain models 

have been updated on the basis of 

additional data as well as 

methodological improvements. In 

addition, a new density model for seals 

was produced as part of the 2017–18 

round of model updates. 

Of particular note, Roberts et al. 

(2020) further updated density model 

results for NARWs by incorporating 

additional sighting data and 

implementing three major changes: 

Increasing spatial resolution, generating 

monthly estimates on three time periods 

of survey data, and dividing the study 

area into five discrete regions. This most 

recent update—model version 9 for 

NARWs—was undertaken with the 

following objectives (Roberts et al., 

2020): 

• To account for recent changes to 

right whale distributions, the model 

should be based on survey data that 

extend through 2018, or later if possible. 

In addition to updates from existing 

collaborators, data should be solicited 

from two survey programs not used in 

prior model versions: 

Æ Aerial surveys of the Massachusetts 

and Rhode Island Wind Energy Areas 

led by New England Aquarium (Kraus et 

al., 2016), spanning 2011–2015 and 

2017–2018. 

Æ Recent surveys of New York waters, 

either traditional aerial surveys initiated 

by the New York State Department of 

Environmental Conservation in 2017, or 

digital aerial surveys initiated by the 

New York State Energy Research and 

Development Authority in 2016, or 

both. 

• To reflect a view in the right whale 

research community that spatiotemporal 

patterns in right whale density changed 

around the time the species entered a 

decline in approximately 2010, consider 

basing the new model only on recent 

years, including contrasting ‘‘before’’ 

and ‘‘after’’ models that might illustrate 

shifts in density, as well as a model 

spanning both periods, and specifically 

consider which model would best 

represent right whale density in the near 

future. 

• To facilitate better application of 

the model to near-shore management 

questions, extend the spatial extent of 

the model farther in-shore, particularly 

north of New York. 

• Increase the resolution of the model 

beyond 10 kilometers (km), if possible. 

All of these objectives were met in 

developing the most recent update to 

the density model. The commenters do 

not cite this most recent report, and the 

comments suggest that the 

aforementioned data collected by the 

New England Aquarium is not reflected 

in the model. Therefore, it is unclear 

whether the commenters are aware of 

the most recently available data, which 

is used herein. 

As noted above, NMFS has 

determined that the Roberts et al. suite 


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of density models represent the best 

available scientific information, and we 

specifically note that the 2020 version of 

the NARW model may address some of 

the specific concerns provided by the 

commenters. (Note that there has been 

an additional minor model update 

affecting predictions for Cape Cod Bay 

in the month of December, which is not 

relevant to the location of this survey off 

of Delaware and New Jersey.) However, 

NMFS acknowledges that there will 

always be additional data that is not 

reflected in the models and that may 

inform our analyses, whether because 

the data were not made available to the 

model authors or because the data is 

more recent than the latest model 

version for a specific taxon. NMFS will 

review any recommended data sources 

to evaluate their applicability in a 

quantitative sense (e.g., to an estimate of 

take numbers) and, separately, to ensure 

that relevant information is considered 

qualitatively when assessing the 

impacts of the specified activity on the 

affected species or stocks and their 

habitat. NMFS will continue to use the 

best available scientific information, 

and we welcome future input from 

interested parties on data sources that 

may be of use in analyzing the potential 

presence and movement patterns of 

marine mammals, including NARWs, in 

U.S. Atlantic waters. 

Moreover, data sources cited by SELC 

pertain to Virginia waters. As described 

in Kitty Hawk Wind’s application and 

the notice of proposed IHA, none of the 

sources used in Virginia waters have the 

potential to harass animals, either 

because they operate above the hearing 

ranges of all marine mammals or have 

such narrow beams widths or low 

source levels that harassment is 

unlikely. Therefore, no take in Virginia 

waters is anticipated to occur as the 

source with potential to result in 

harassment, the Furgo sparker, is only 

used on the WDA off North Carolina. 

Finally, as described in the 

‘‘Estimated Take’’ section of the notice 

of proposed IHA and below, Kitty Hawk 

Wind and NMFS also consider 

monitoring data collected by Kitty Hawk 

Wind during previous marine site 

characterization surveys. Therefore, 

density estimates alone were not solely 

used to inform take authorization 

amounts for all species. As described in 

the notice of proposed IHA, take was 

adjusted from the density-based 

calculations for pilot whales, common 

dolphins, Atlantic spotted dolphins and 

Risso’s dolphins. In summary, use of the 

Roberts et al. density data in 

combination of site-specific data 

collected by Kitty Hawk Wind 

represents a reasonable approach 

representing the best available science 

for estimating take from the proposed 

marine site characterization surveys. 

Comment 3: SELC identifies that the 

Roberts et al. model does not 

differentiate between species of pilot 

whale or seal, or between stocks of 

bottlenose dolphin. They are concerned 

that the proposed IHA separates marine 

mammals by species or by stock but the 

same accounting is used for each, and 

observations do not distinguish between 

species or stock. They go on to say that 

a [negligible impact finding] record that 

provides ‘‘general discussions with 

little, if any, relevance to the 

population-level effects on specific 

species and stock, and to conclusory 

statements that no such effects are 

expected,’’ is inadequate. 

Response: SELC is correct that the 

Roberts et al. density models do not 

distinguish between stocks of pilot 

whales and bottlenose dolphins. We 

note that seal models are not applicable 

here given the time of year the survey 

will be conducted and NMFS did not 

propose, nor authorize, take of any seal 

species or stock incidental to the 

proposed marine site characterization 

survey. The MMPA requires that 

species- or stock-specific negligible 

impact determinations be made, and 

NMFS has done so. In this case, NMFS 

has authorized take numbers specific to 

each affected species or stock. As a 

general matter, NMFS is unaware of any 

available density data which 

differentiates between species of pilot 

whales or seals, or stocks of bottlenose 

dolphins. However, lack of such data 

does not preclude the requisite species 

or stock-specific findings. In the event 

that an amount of take is authorized at 

the guild or species level only, e.g., for 

pilot whales or bottlenose dolphins, 

respectively, NMFS may adequately 

evaluate the effects of the activity by 

conservatively assuming (for example) 

that all takes authorized for the guild or 

species would accrue to each potentially 

affected species or stock. In this case, 

NMFS made clear why only the offshore 

stock of bottlenose dolphins is likely to 

be taken by the proposed marine site 

characterizations surveys and, for pilot 

whales, has assigned take on the basis 

of an assumed group size of 20 for each 

potentially affected species. NMFS fully 

describes the reasons why the amount of 

take authorized, per stock, would have 

a negligible impact to each marine 

mammal stock. NMFS has also clarified 

the total amount of take authorized to 

each stock of pilot whales (long-finned 

and short-finned) is 20 each. 

Comment 4: SELC believes the 

assumptions regarding seasonal 

occurrence of NARW in the survey area 

are unfounded because they assert 

NARWs are detected during every 

month of the year in the Mid-Atlantic. 

Response: As described in the notice 

of proposed IHA, Kitty Hawk Wind 

plans to complete the surveys by the 

end of September (we note the IHA is 

effective until October 31, 2021 in case 

of unexpected, long weather delays). Of 

that time, only half of the days would 

utilize the sparker, the only piece of 

equipment with potential to harass 

marine mammals. NMFS does not assert 

there is zero possibility that NARWs 

could be encountered but uses the best 

available science to identify that it is 

highly unlikely a NARW would be 

present in the project area (both Virginia 

and North Carolina) during this time of 

year and for this short survey. The 

density estimate considered in 

estimating take was 0.006 NARWs per 

100 km2. The resulting take calculation 

was 0.097, appropriately rounded to 

zero. In the case that a NARW is 

encountered, Kitty Hawk Wind is 

required to implement shut down at 500 

m, reduce speeds to 10kts, and maintain 

a 500 m setback distance to avoid take. 

Overall, NMFS does not anticipate nor 

authorize take of NARWs incidental to 

the survey. To further ensure that take 

of NARW will not occur, NMFS has 

limited the effective period of the IHA 

to a very short duration, expiring on 

October 31, 2021. 

Comment 5: SELC believes NMFS 

should acknowledge the potential for 

take by Level A harassment from HRG 

surveys on small cetaceans and 

reconsider the analysis of Level A 

harassment from HRG surveys on harbor 

porpoises and other acoustically 

sensitive species. 

Response: NMFS disagrees the 

potential for Level A harassment i.e., 

permanent threshold shift (PTS) exists 

from exposure to marine site 

characterization survey sources for any 

marine mammal, including high 

frequency cetaceans (i.e., harbor 

porpoise). Given the time of year the 

surveys would occur, harbor porpoise 

are not normally in the region, let alone 

in close proximity to survey vessel. The 

take, by Level B harassment only, of one 

harbor porpoise is authorized in the IHA 

as a precautionary measure. Further, as 

described in the proposed IHA, the risk 

of any marine mammal incurring 

permanent hearing loss is highly 

unlikely. Kitty Hawk Wind’s application 

identifies conservative calculations to 

the NMFS thresholds that indicate the 

potential onset of PTS. These distances 

are extremely close to the vessel for low 

and high frequency cetaceans 

(approximately 18 m and 120 m, 

respectively). The potential for Level A 


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harassment of mid-frequency cetaceans 

essentially does not exist as the 

calculated Level A harassment distance 

is 0.5 m (based on the SEL threshold; 

received levels exceeding peak 

thresholds were not reached at any 

distance for any hearing group). These 

distances are conservative as they do 

not account for the influences of 

absorption, water depth, and/or 

beamwidth, all of which can result in 

smaller harassment radii. 

Comment 6: SELC acknowledges that 

the proposed IHA includes mitigation 

measures to avoid vessel strikes yet 

believes NMFS overlooked vessel 

collisions as a source of potential take 

and recommends vessel collisions 

should be incorporated into NMFS’ take 

analysis. SELC identified that vessels 

associated with the proposed activity 

will move at speeds well below 10 kts 

but that NMFS did not address potential 

vessel strike from vessels transiting to 

and from the lease area. 

Response: As described in the 

proposed IHA, NMFS does not 

anticipate vessel strike of any marine 

mammal would occur incidental to the 

proposed marine site characterization 

surveys. Kitty Hawk Wind did not 

request take from vessel strike nor did 

NMFS authorize any. 

NMFS included a vessel strike 

analysis in the notice of proposed IHA 

(86 FR 28061, May 25, 2021) under the 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

section. We identified that at average 

transit speed for geophysical survey 

vessels, the probability of serious injury 

or mortality resulting from a strike is 

less than 50 percent. However, the 

likelihood of a strike actually happening 

is again low given the smaller size of 

these vessels and generally slower 

speeds during transit. Further, Kitty 

Hawk Wind is required to implement 

monitoring and mitigation measures 

during transit, including observing for 

marine mammals and maintaining 

defined separation distances between 

the vessel and any marine mammal (see 

Mitigation and Monitoring and 

Reporting sections below). Finally, 

despite several years of marine site 

characterization surveys occurring off 

the U.S. east coast, no vessels 

supporting offshore wind development 

have struck a marine mammal either in 

transit or during surveying. Because 

vessel strikes are not reasonably 

expected to occur, no take is authorized. 

The mitigation measures in the IHA 

related to vessel strike avoidance are not 

limited to vessels operating within the 

WDA or cable corridors and therefore 

apply to transiting vessels. Although the 

proposed IHA considered this, the final 

IHA is more clear in Condition 4(i) that 

vessel strike avoidance measures apply 

to vessels during both transit and survey 

operations phases. 

Comment 7: SELC is concerned that 

avoidance of NARWs in response to 

survey noise could push NARWs and 

other large whales out of protected areas 

and into areas with greater risk of vessel 

collision, such as shipping lanes 

entering the Chesapeake Bay; therefore, 

vessel strike due to displacement should 

considered in NMFS’ take analysis. 

Response: It is unclear what NARW 

protected areas SELC is referring to 

given the temporal and spatial aspects 

of the proposed surveys (e.g., no 

seasonal management areas (SMAs) are 

designated in the project area during the 

survey timeframe). Regardless, we do 

not anticipate that NARWs would be 

displaced from Kitty Hawk Wind’s 

proposed marine site characterization 

surveys. The survey would occur during 

a time of year when NARW is very low 

and Kitty Hawk Wind has committed to 

shutting down and avoiding NARWs in 

the unlikely scenario a NARW is 

encountered such that no Level B 

harassment is anticipated to occur. 

Further, sources used in the cable 

corridors are either above marine 

mammal hearing ranges or have such 

low source levels and narrow beam 

widths that harassment, in absence of 

mitigation, is not anticipated. Therefore, 

even if a NARW was in the area of the 

cable corridor surveys, a displacement 

impact is not anticipated. 

Operation of the sparker in the WDA 

could lead to some avoidance of marine 

mammals for which take is authorized 

(i.e., non-NARWs) from the immediate 

vicinity of the vessel, but there is no 

evidence to suggest that animals would 

be displaced hundreds of miles from the 

WDA to shipping lanes near the 

entrance of the Chesapeake Bay. In 

summary, SELCs concerns do not reflect 

a likely scenario and NMFS does not 

anticipate NARWs, or any marine 

mammal, to be displaced to the degree 

risk of vessel strike is increased. 

Comment 8: SELC considers the 

renewal process to be inconsistent with 

the statutory requirements under section 

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

30-day public comment requirement. 

Response: In prior responses to 

comments about IHA Renewals (e.g., 84 

FR 52464; October 02, 2019 and 85 FR 

53342, August 28, 2020), 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. 

All IHAs issued, whether an initial 

IHA or a renewal IHA, are valid for a 

period of not more than one year. And 

the public has at least 30 days to 

comment on all proposed IHAs, with a 

cumulative total of 45 days for IHA 

renewals. The notice of the proposed 

IHA published in the Federal Register 

on May 25, 2021 (86 FR 28061) made 

clear that the agency was seeking 

comment on both the initial proposed 

IHA and the potential issuance of a 

renewal for this project. Because any 

renewal is limited to another year of 

identical or nearly identical activities in 

the same location or the same activities 

that were not completed within the 

effective 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 in the coming 

months. 

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, 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 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. 

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. 

Comment 9: SELC recommended 

NMFS impose a seasonal restriction on 

site characterization activities that have 


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the potential to injure or harass NARWs. 

SELC identified this seasonal restriction 

should occur from November 1 through 

April 30, citing the best available 

scientific information on the relative 

density of NARWs in the mid-Atlantic 

as well as potential presence of pregnant 

females and mother-calf pairs. SELC 

further notes that they consider source 

levels greater than 180 dB re 1 mPa (SPL) 

at 1-meter at frequencies between 7 Hz 

and 35 kHz to be potentially harmful to 

low-frequency cetaceans. 

Response: As described in the 

proposed IHA, Kitty Hawk Wind 

anticipates that the marine site 

characterization surveys will be 

complete by September 31, 2021. Kitty 

Hawk Wind has committed to this and 

NMFS has limited the effective period 

of the IHA to October 31, 2021. 

It is unclear how the commenters 

determined that source levels greater 

than 180 dB re 1 mPa (SPL) are 

potentially harmful to low-frequency 

cetaceans. NMFS historically applied a 

received level (not source level) root 

mean square (rms) threshold of 180 dB 

SPL as the potential for marine 

mammals to incur PTS (i.e., Level A 

(injury) harassment); however, in 2016, 

NMFS published it Technical Guidance 

for Assessing the Effects of 

Anthropogenic Sound on Marine 

Mammal Hearing which updated the 

180 dB SPL Level A harassment 

threshold. Since that time, NMFS has 

been applying dual threshold criteria 

based on both peak and a weighted (to 

account for marine mammal hearing) 

cumulative sound exposure level. 

NMFS released a revised version of the 

Technical Guidance in 2018. We 

encourage the ENGOs to review the 

Technical Guidance available at https:// 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance to 

inform future reviews of any proposed 

IHA on which they may wish to 

comment. As described in the Estimated 

Take section, NMFS has established a 

PTS (Level A harassment) threshold of 

183 dB cumulative SEL for low 

frequency specialists. Based on a 

conservative model that does not 

account for beamwidth and absorption, 

a NARW would have to come within 

17.9 m of the sparker to potentially 

incur PTS. Not only are NARWs 

uncommon during the time of year the 

survey would occur, Kitty Hawk is also 

required to not approach any NARW 

within 500 m or operate the sparker 

within 500 m of a NARW. As such, 

there is no potential for a NARW to 

experience PTS (i.e., Level A 

harassment) from the proposed survey. 

Comment 10: SELC recommends 

robust and effective real-time 

monitoring and mitigation systems are 

in place to protected NARWs 

throughout the year. 

Response: NMFS is generally 

supportive of this concept. 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 

which 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. The ENGOs cited the 

NMFS publication ‘‘Technical 

Memorandum NMFS-OPR-64: NARW 

Monitoring and Surveillance: Report 

and Recommendations of the National 

Marine Fisheries Service’s Expert 

Working Group’’ which is available at: 

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

resource/document/north-atlantic-rightwhale-monitoring-and-surveillancereport-and-recommendations. This 

report summarizes a workshop NMFS 

convened to address objectives related 

to monitoring NARWs 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 auto-buoys to provide near real-time 

detections of NARW calls that visual 

survey teams can then respond to for 

collection of identification photographs 

or biological samples. 

Comment 11: SELC recommends that 

if a survey is shut down during periods 

of low visibility, including night time, 

developers should be required to wait 

until daylight hours and good visibility 

for surveying to resume. 

Response: While we acknowledge the 

limitations inherent in detection of 

marine mammals at night, NMFS 

disagrees with this recommendation. As 

described in our notice of proposed 

IHA, the impacts of marine site 

characterization surveys on marine 

mammals is relatively low. No auditory 

injury is expected to result even in the 

absence of mitigation, given the very 

small estimated Level A harassment 

zones (as described in Kitty Hawk 

Wind’s application). Any potential 

impacts to marine mammals authorized 

for take would be limited to short-term 

behavioral responses. Restricting 

surveys in the manner suggested by the 

commenters may reduce marine 

mammal exposures by some degree in 

the short term, but, this measure would 

lead to delays in completing the survey 

which could push the work into times 

of the year when NARWs are present or 

more abundant. Furthermore, restricting 

the applicant to ramp-up 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 the following year. 

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 potential 

effectiveness of the recommended 

measure and its practicability for the 

applicant, NMFS has determined that 

restricting survey start-ups to daylight 

hours when visibility is unimpeded is 

not warranted or practicable in this 

case. 

Comment 12: SELC contends the realtime PAM and shutdown on acoustic 

detections should be required citing that 

NMFS is relying on visual observation 

as the primary means of detecting 

NARWs. SELC believes the effectiveness 

of detecting marine mammals with 

thermal and infrared technology is 

questionable. They acknowledge recent 

research suggests these tool are effective 

during calm conditions but state that 

NMFS should consider limitations of 

these systems and ensure that the 

detection of marine mammals is 

possible at distances out to and beyond 

the exclusion zones prior to reliance on 

this evolving technology. 

Response: The foremost concern 

expressed by the ENGOs in making the 

recommendation to require use of PAM 

is with regard to North Atlantic right 

whales. As described above, the 

likelihood of a NARW being present 

within the survey area is extremely low. 

SELC is requesting extremely costly and 

time consuming (i.e., impracticable) 

monitoring and mitigation measures 

that are not warranted based on the best 

available science indicating extremely 

low densities of NARWs during the 

effective period of the IHA and that the 

potential severity of impact of the 

surveys on marine mammals is general 

considered very low and the survey is 

very short (12.5 days of sparker use 

during a time when NARW density is 

extremely low). 

SELC does not explain why they 

expect that PAM would be effective in 

detecting vocalizing mysticetes. It is 

generally well-accepted fact that, even 

in the absence of additional acoustic 


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sources, using a towed passive acoustic 

sensor to detect baleen whales 

(including right whales) is not typically 

effective because the noise from the 

vessel, the flow noise, and the cable 

noise are in the same frequency band 

and will mask the vast majority of 

baleen whale calls. Vessels produce 

low-frequency noise, primarily through 

propeller cavitation, with main energy 

in the 5–300 Hertz (Hz) frequency range. 

Source levels range from about 140 to 

195 decibel (dB) re 1 mPa (micropascal) 

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. Experienced PAM operators 

participating in a recent workshop 

(Thode et al., 2017) emphasized that a 

PAM operation could easily report no 

acoustic encounters, depending on 

species present, simply because 

background noise levels rendered any 

acoustic detection impossible. The same 

workshop report stated that a typical 

eight-element array towed 500 m behind 

a vessel could be expected to detect 

delphinids, sperm whales, and beaked 

whales at the required range, but not 

baleen whales, due to expected 

background noise levels (including 

seismic noise, vessel noise, and flow 

noise). 

There are several additional reasons 

why we do not agree that use of PAM 

is warranted for 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 during 

HRG survey activities is limited. First, 

for this activity, the area expected to be 

ensonified above the Level B 

harassment threshold is relatively small 

(a maximum of 445 m)—this reflects the 

fact that, to start with, the source level 

is comparatively low and the intensity 

of any resulting impacts would be lower 

level and, further, it means that 

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—together these factors 

support the limited value of PAM for 

use in reducing take with smaller zones. 

PAM is only capable of detecting 

animals that are actively vocalizing, 

while many marine mammal species 

vocalize infrequently or during certain 

activities, which means that only a 

subset of the animals within the range 

of the PAM would be detected (and 

potentially have reduced impacts). 

Additionally, localization and range 

detection can be challenging under 

certain scenarios. For example, 

odontocetes are fast moving and often 

travel in large or dispersed groups 

which makes localization difficult. 

Given that the effects to marine 

mammals from the types of surveys 

authorized in this IHA are expected to 

be limited to low level behavioral 

harassment even in the absence of 

mitigation, the limited additional 

benefit anticipated by adding this 

detection method (especially for right 

whales and other low frequency 

cetaceans, species for which PAM has 

limited efficacy), and the cost and 

impracticability of implementing a fulltime 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. 

Comment 13: SELC requests NMFS 

encourage Kitty Hawk Wind to 

collaborate with scientists in collecting 

data that would increase the 

understanding of the effectiveness of 

night vision and infrared technologies 

off North Carolina, Virginia and the 

broader Mid-Atlantic region with a view 

towards utilizing these technologies to 

commence surveys at night in the 

future. 

Response: NMFS agrees collaboration 

with scientists to improve the 

understanding of the effectiveness of 

night vision and infrared technologies 

for all offshore wind development and 

will encourage Kitty Hawk Wind to do 

so. 

Comment 14: SELC believes the 

shutdown zones established for vessels 

operating a sparker should be applied to 

all vessels using equipment that operate 

below 180 kHz because they claim such 

sources have the potential to cause 

acoustic harassment of marine 

mammals. 

Response: NMFS disagrees that all 

sources below 180 kHz have the 

potential to cause harassment and; 

therefore, shutdown is necessary for all 

equipment operating below 180 kHz. 

SELC’s recommendation does not 

consider fundamental acoustic 

propagation or consider source 

operating characteristics such as beam 

width. The Innomar and USBL are nonimpulsive, non-parametric sound 

sources. The Innomar’s beam width is 1 

degree meaning a marine mammal 

would have to be in a particular part of 

the water column very close to the 

source (essentially under the vessel) to 

experience sounds loud enough to 

experience harassment. The incredibly 

short duration of that exposure based on 

a moving animal and moving source 

does not warrant a shutdown as 

harassment is not a likely outcome of 

exposure. 

Comment 15: SELC believes the 

proposed exclusion zone sizes are 

inconsistent with those required for 

similar activities in other IHAs. They 

cite the previous IHA for HRG surveys 

in the Kitty Hawk Lease Area, wherein 

NMFS required a 200-meter exclusion 

zone for all large whales, pilot whales, 

and Risso’s dolphins, and question why 

deviations from the 200-m exclusion 

zone were made. SELC recommends a 

clearance zone of 500 m for all marine 

mammals and, to the extent feasible, a 

1,000-m exclusion zone for NARWs. 

Response: NMFS disagrees with this 

recommendation and has determined 

that the exclusion zones included here 

are sufficiently protective. First, we note 

SELC is incorrect that the previous IHA 

required a 200 m exclusion zone for all 

large whales, pilot whales, and Risso’s 

dolphin. The actual exclusion zones in 

that referenced IHA (both proposed and 

final) were 500-m for NARWs, 200- m 

for sei and fin whales, and 100-m for all 

other large cetaceans (humpback whale, 

minke whale, pilot whale, Risso’s 

dolphin). Here, Kitty Hawk Wind must 

implement a 500-m exclusion zone for 

all ESA-listed whales (i.e., the same 

exclusion zone for NARWs and a larger 

exclusion zone for fin and sei whales). 

The final IHA also increases the 

exclusion zone from proposed to final 

such that the final exclusion zone is 100 

m. Therefore, while there is 

inconsistency, the IHA includes more 

protective measures for marine 

mammals than the previous IHA. We 

note that the 500-m exclusion zone for 

NARWs exceeds the modeled distance 

to the largest Level B harassment 

isopleth distance (445 m). The 

commenters do not provide any 

justification for the contention that the 

existing exclusion zones are 

insufficient, and do not provide any 

rationale for their recommended 

alternatives (other than that they are 

larger). In summary, SELC’s 

recommendation that the exclusion 

zone be increased to 500-m for all 

marine mammals (except NARWs) and 

1,000-m for NARW is unsupported and 

does not consider the negative 

operational impacts of such a 

recommendation. NMFS believes more 


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frequent shutdowns due to these 

measures would unnecessarily increase 

survey duration, potentially pushing the 

project into times when NARWs are 

more likely to be present. 

Comment 16: SELC recommended 

that a combination of visual 

monitoring—by four protected species 

observers adhering to ‘‘two-on/two-off’’ 

schedule—and PAM should be used at 

all times that survey work is underway, 

and, for efforts that continue into the 

nighttime, night vision or infrared 

technology should also be used. 

Response: NMFS typically requires 

that a single protected species observer 

(PSO) must be stationed at the highest 

vantage point and engaged in general 

360-degree scanning during daylight 

hours only. 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 EZ, which is greater than the 

maximum 141-m harassment zone) will 

be successful in detecting marine 

mammals that are available for detection 

at the surface. The monitoring reports 

submitted to NMFS have demonstrated 

that PSOs active only during daylight 

operations are able to detect marine 

mammals and implement appropriate 

mitigation measures. Kitty Hawk Wind 

proposed using two PSOs and night 

vision/infrared technology during 

nighttime operations. This was included 

in their application and the proposed 

IHA made available for public comment; 

therefore, the portion of the comment 

related to using night vision technology 

has been satisfied. Regarding PAM, we 

refer to our response to Comment 12 in 

that use of PAM is not warranted given 

the very low level of impact from the 

survey should a marine mammal be 

exposed to sparker use and the 

impracticability of implementing PAM 

during the very short survey. 

Comment 17: SELC does not agree 

with the proposal to waive the 

shutdown requirement for certain 

species of small delphinid. They are 

particularly concerned that this 

exemption will leave the two stocks of 

bottlenose dolphin, which are 

designated as depleted and/or strategic 

under the MMPA, without adequate 

shutdown protections and therefore 

NMFS should remove all stocks of 

bottlenose dolphin from this exemption. 

Response: The only stock likely to be 

present within the WDA during use of 

the sparker, and for which take is 

authorized, is the offshore stock of 

bottlenose dolphins. This stock is not a 

depleted or strategic stock. While the 

northern and southern migratory coastal 

stocks are depleted and strategic, they 

are likely to be found within the transit 

corridor where the Furgo sparker is not 

used. As previous described, the sources 

used in the transit corridor operate 

about 180 kHz (outside of marine 

mammal hearing) or do not have the 

potential to result in harassment due to 

their operating characteristics (e.g., very 

narrow beam width). Therefore, NMFS 

retained the shutdown requirement as 

proposed. 

Comment 18: SELC recommends a 

mandatory speed restriction of 10 kts for 

all project vessels within any designated 

dynamic management area (DMA) for 

NARWs. 

Response: The measure that all 

vessels traveling within a DMA was 

included as condition 4(i)(i) of the 

proposed IHA that was made available 

for public comment. The condition that 

all project vessels (while in transit or 

during active surveying) travel at 10 kts 

or less in both a DMA and an 

acoustically-triggered Slow Zone is 

included in the final IHA. However, we 

note that given the location and time of 

year surveys will occur, it is unlikely a 

DMA or acoustically-triggered slow 

zone would be established. 

Comment 19: SELC believes a sighting 

of three of more NARWs is too high of 

a bar to trigger a DMA and recommends 

NMFS expand the DMA requirement to 

include sightings of mother-calf pairs. 

Response: DMAs are a component of 

the 2008 Final Rule To Implement 

Speed Restrictions to Reduce the Threat 

of Ship Collisions With NARWs (73 FR 

60173, October 10, 2008). The rule was 

promulgated to minimize lethal ship 

strikes of NARWs and based on the best 

available science. DMAs are triggered 

based on the analysis and findings of 

Clapham and Pace (2001). Any changes 

to the DMA program regarding 

modifying the triggering of a DMA is 

outside the scope of the proposed IHA 

to Kitty Hawk Wind. We note that 

despite being established alongside 

NOAA’s mandatory vessel speed 

regulations in Seasonal Management 

Areas in 2008, the DMA program is 

voluntary for the general public. 

However, as described in the IHA, Kitty 

Hawk Wind is required to reduce vessel 

speeds to 10 kts should a NARW 

mother/calf pair be observed. 

Comment 20: SELC requests PAM 

should be employed in all transit lanes 

to supplement the efforts of observers in 

visually detecting marine mammals. 

Response: As noted in our response to 

Comment 12, SELC is requesting costly 

monitoring be employed that is not 

warranted and is impracticable for the 

applicant to implement. Despite years of 

effort, no marine site characterization 

vessels in the U.S., either in transit or 

during active surveying and which 

operate under PSO requirements as the 

ones included in the IHA, have never 

struck a marine mammal. NMFS is also 

unaware of any marine site 

characterization vessel strikes in 

Europe. The vessels involved will work 

24-hrs per day; therefore, transit time is 

very limited to essentially to and from 

the WDA upon onset and completion of 

the survey with some limited potential 

for transit to sheltered waters in the case 

of foul weather. 

Changes From Proposed IHA to Final 

IHA 

The effective period of the IHA is now 

limited to July 15, 2021 through October 

31, 2021 to ensure no take of NARWs. 

We have also increased the clearance 

zone for all Endangered Species Act 

(ESA)-listed marine mammals (not just 

NARWs) to 500 m; increased the vessel 

separation distance for all ESA-listed 

marine mammals during both surveying 

and transit to 500 m; and included a 10 

knot speed restriction for vessels 

traveling in an acoustically-triggered 

slow zone (the proposed IHA contained 

a 10 knot speed restriction for dynamic 

management areas (DMAs) only). 

Description of Marine Mammals in the 

Area of Specified Activities 

Sections 3 and 4 of the application 

summarize available information 

regarding status and trends, distribution 

and habitat preferences, and behavior 

and life history, of the potentially 

affected species. Additional information 

regarding population trends and threats 

may be found in NMFS’s Stock 

Assessment Reports (SARs; https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments) and more 

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’s 

website (https://

www.fisheries.noaa.gov/find-species). 

Table 2 lists all species or stocks that 

may occur within the survey area and 

summarizes information related to the 

population or stock, including 

regulatory status under the MMPA and 

ESA and potential biological removal 

(PBR), where known. For taxonomy, we 

follow Committee on Taxonomy (2021). 

PBR is defined by the MMPA as the 

maximum number of animals, not 

including natural mortalities, that may 

be removed from a marine mammal 

stock while allowing that stock to reach 

or maintain its optimum sustainable 

population (as described in NMFS’s 

SARs). While no mortality is anticipated 


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or authorized here, PBR and annual 

serious injury and mortality from 

anthropogenic sources are included here 

as gross indicators of the status of the 

species and other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’s stock 

abundance estimates. For some species, 

this geographic area may extend beyond 

U.S. waters. All managed stocks in this 

region are assessed in NMFS’s U.S. 

Atlantic and Gulf of Mexico SARs (e.g., 

Hayes et al., 2019, 2020). All values 

presented in Table 2 are the most recent 

available at the time of publication and 

are available in the 2019 SARs and draft 

2020 SARs (available online at: https:// 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/draftmarine-mammal-stock-assessmentreports). 

TABLE 2—SUMMARY INFORMATION OF SPECIES WITHIN THE PROPOSED SURVEY AREA

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Balaenidae: 

North Atlantic right whale Eubalaena glacialis ................ Western North Atlantic ........... E/D; Y 368 (-; 356; 2020) 4 ................ 0.8 18.6 

Family Balaenopteridae 

(rorquals): 

Humpback whale .............. Megaptera novaeangliae ........ Gulf of Maine .......................... -/-; Y 1,393 (0; 1,375; 2016) ........... 22 58 

Fin whale .......................... Balaenoptera physalus ........... Western North Atlantic ........... E/D; Y 6,802 (0.24; 5,573; 2016) ...... 11 2.35 

Sei whale ......................... Balaenoptera borealis ............ Nova Scotia ............................ E/D; Y 6,292 (1.02; 3,098; 2016) ...... 6.2 1.2 

Minke whale ..................... Balaenoptera acutorostrata .... Canadian East Coast ............. -/-; N 21,968 (0.31; 17,002; 2016) .. 170 10.6 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Sperm whale .................... Physeter macrocephalus ........ NA .......................................... E; Y 4,349 (0.28;3,451; See SAR) 3.9 0 

Family Delphinidae: 

Long-finned pilot whale .... Globicephala melas ................ Western North Atlantic ........... -/-; N 39,215 (0.30; 30,627; See 

SAR).

306 21 

Short finned pilot whale ... Globicephala macrorhynchus Western North Atlantic ........... -/-; Y 28,924 (0.24; 23,637; 2016) .. 236 160 

Bottlenose dolphin ........... Tursiops truncatus .................. Western North Atlantic Offshore.-/-; N 62,851 (0.23; 51,914, 2016) .. 519 28 

W.N.A. Northern Migratory 

Coastal.

-/-; Y 6,639 (0.41, 4,759, 2016) ...... 48 12.2–21.5 

Common dolphin .............. Delphinus delphis ................... Western North Atlantic ........... -/-; N 172,947 (0.21; 145,216; 2016) 1,452 399 

Atlantic spotted dolphin .... Stenella frontalis ..................... Western North Atlantic ........... -/-; N 39,921 (0.27; 32,032; 2012) .. 320 0 

Risso’s dolphin ................. Grampus griseus .................... Western North Atlantic ........... -/-; N 35,493 (0.19; 30,289; 2016) .. 303 54.3 

Family Phocoenidae (porpoises): 

Harbor porpoise ............... Phocoena phocoena .............. Gulf of Maine/Bay of Fundy ... -/-; N 95,543 (0.31; 74,034; 2016) .. 851 217 

Order Carnivora—Superfamily Pinnipedia 

Family Phocidae (earless 

seals): 

Harbor seal ....................... Phoca vitulina ......................... Western North Atlantic ........... -/-; N 75,834 (0.15; 66,884, 2018) .. 2,006 350 

1ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be 

declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA 

as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3These values, found in NMFS’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated 

mortality due to commercial fisheries is presented in some cases. 4Pace et al 2021. 

All species that could potentially 

occur in the proposed survey areas are 

included in Table 2. While NARWs, sei 

and sperm whales, and harbor seals 

have been sighted within the survey 

area, the temporal occurrence of the 

surveys (summer/early fall) does not 

overlap with the time of year these 

species may be present in the survey 

area as most of these species are in 

northern latitudes during this time. For 

these reasons, along with the very short 

duration of the survey, we consider the 

potential for take of these species de 

minimus and they will not be discussed 

further. 

In addition to what is included in 

Sections 3 and 4 of the application, the 

SARs, and NMFS’ website, further detail 

informing the baseline for select species 

(e.g., information regarding current 

Unusual Mortality Events (UME) and 

important habitat areas) was provided in 

the notice of proposed IHA (86 FR 

28061; May 25, 2021) and is not 

repeated here. No new information is 

available since publication of that 

notice. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Current data indicate 

that not all marine mammal species 

have equal hearing capabilities (e.g., 

Richardson et al., 1995; Wartzok and 

Ketten, 1999; Au and Hastings, 2008). 

To reflect this, Southall et al. (2007) 


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recommended that marine mammals be 

divided into functional hearing groups 

based on directly measured or estimated 

hearing ranges on the basis of available 

behavioral response data, audiograms 

derived using auditory evoked potential 

techniques, anatomical modeling, and 

other data. Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2018) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65 dB 

threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 3. 

TABLE 3—MARINE MAMMAL HEARING GROUP

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans (baleen whales) ................................................................................................................. 7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ...................................... 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) .............................................................................................................. 50 Hz to 86 kHz. 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .......................................................................................... 60 Hz to 39 kHz. 

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ 

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation). 

The pinniped functional hearing 

group was modified from Southall et al. 

(2007) on the basis of data indicating 

that phocid species have consistently 

demonstrated an extended frequency 

range of hearing compared to otariids, 

especially in the higher frequency range 

(Hemila ̈ et al., 2006; Kastelein et al., 

2009; Reichmuth and Holt, 2013). 

For more detail concerning these 

groups and associated frequency ranges, 

please see NMFS (2018) for a review of 

available information. Nine marine 

mammal species (all cetaceans) have the 

reasonable potential to be taken by the 

survey activities (Table 5). Of the 

cetacean species that may be present, 

three are classified as low-frequency 

cetaceans (i.e., all mysticete species), 

five are classified as mid-frequency 

cetaceans (i.e., all delphinid species), 

and one is classified as a high-frequency 

cetacean (i.e., harbor porpoise). 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

The notice of proposed IHA included 

a summary of the ways that Kitty Hawk 

Wind’s specified activity may impact 

marine mammals and their habitat (86 

FR 28061; May 25, 2021). In summary, 

the potential effects of Kitty Hawk 

Wind’s specified survey activity are 

expected to be limited to Level B 

harassment of select marine mammal 

species. No permanent or temporary 

auditory effects, or significant impacts 

to marine mammal habitat, including 

prey, are expected. No new information 

is available that would change our 

previous analysis; therefore, we refer the 

reader to the aforementioned notice of 

proposed IHA rather than repeating the 

details here. The Estimated Take section 

includes a quantitative analysis of the 

number of individuals that are expected 

to be taken by Kitty Hawk Wind’s 

activity. The Negligible Impact Analysis 

and Determination section considers the 

potential effects of the specified activity, 

the Estimated Take section, and the 

Mitigation section, to draw conclusions 

regarding the likely impacts of these 

activities on the reproductive success or 

survivorship of individuals and how 

those impacts on individuals are likely 

to impact marine mammal species or 

stocks. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized through the IHA, which will 

inform both NMFS’ consideration of 

‘‘small numbers’’ and the negligible 

impact determination. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of the 

MMPA defines ‘‘harassment’’ as any act 

of pursuit, torment, or annoyance, 

which (i) has the potential to injure a 

marine mammal or marine mammal 

stock in the wild (Level A harassment); 

or (ii) has the potential to disturb a 

marine mammal or marine mammal 

stock in the wild by causing disruption 

of behavioral patterns, including, but 

not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

(Level B harassment). 

Authorized takes are by Level B 

harassment only, in the form of 

disruption of behavioral patterns for 

individual marine mammals resulting 

from exposure to noise from certain 

HRG acoustic sources. Based primarily 

on the characteristics of the signals 

produced by the acoustic sources 

planned for use, Level A harassment is 

neither anticipated (even absent 

mitigation), nor authorized. 

Consideration of the anticipated 

effectiveness of the mitigation measures 

(i.e., exclusion zones and shutdown 

measures), discussed in detail below in 

the Mitigation section, further 

strengthens the conclusion that Level A 

harassment is not a reasonably 

anticipated outcome of the survey 

activity. As described previously, no 

serious injury or mortality is anticipated 

or authorized for this activity. Below we 

describe how the take is estimated. 

Generally speaking, we estimate take 

by considering: (1) Acoustic thresholds 

above which NMFS believes the best 

available science indicates marine 

mammals will be behaviorally harassed 

or incur some degree of permanent 

hearing impairment; (2) the area or 

volume of water that will be ensonified 

above these levels in a day; (3) the 

density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) and the number of days of 

activities. We note that while these 

basic factors can contribute to a basic 

calculation to provide an initial 

prediction of takes, additional 

information that can qualitatively 

inform take estimates is also sometimes 

available (e.g., previous monitoring 

results or average group size). Below, we 

describe the factors considered here in 

more detail and present the take 

estimates. 


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Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur PTS of some 

degree (equated to Level A harassment). 

Level B Harassment for non-explosive 

sources—Though significantly driven by 

received level, the onset of behavioral 

disturbance from anthropogenic noise 

exposure is also informed to varying 

degrees by other factors related to the 

source (e.g., frequency, predictability, 

duty cycle), the environment (e.g., 

bathymetry), and the receiving animals 

(hearing, motivation, experience, 

demography, behavioral context) and 

can be difficult to predict (Southall et 

al., 2007, Ellison et al., 2012). Based on 

what the available science indicates and 

the practical need to use a threshold 

based on a factor that is both predictable 

and measurable for most activities, 

NMFS uses a generalized acoustic 

threshold based on received level to 

estimate the onset of behavioral 

harassment. NMFS predicts that marine 

mammals are likely to be behaviorally 

harassed in a manner we consider Level 

B harassment when exposed to 

underwater anthropogenic noise above 

received levels of 160 dB re 1 mPa (rms) 

for the impulsive sources (i.e., sparkers) 

evaluated here for Kitty Hawk Wind’s 

proposed activity. 

Level A Harassment—NMFS’ 

Technical Guidance for Assessing the 

Effects of Anthropogenic Sound on 

Marine Mammal Hearing (Version 2.0) 

(Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

(Level A harassment) to five different 

marine mammal groups (based on 

hearing sensitivity) as a result of 

exposure to noise from two different 

types of sources (impulsive or nonimpulsive). For more information, see 

NMFS’ 2018 Technical Guidance, which 

may be accessed at 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance. 

Kitty Hawk Wind’s proposed activity 

includes the use of impulsive (i.e., 

sparkers) sources. However, as 

discussed above, NMFS has concluded 

that Level A harassment is not a 

reasonably likely outcome for marine 

mammals exposed to noise through use 

of the sources proposed for use here, 

and the potential for Level A 

harassment is not evaluated further in 

this document. Please see Kitty Hawk 

Wind’s application for details of a 

quantitative exposure analysis exercise, 

i.e., calculated Level A harassment 

isopleths and estimated Level A 

harassment exposures. Maximum 

estimated Level A harassment isopleths 

ranged from 0 to 2 m for all sources and 

hearing groups with the exception of the 

Furgo 2D Sparker). The Level A 

harassment isopleth for low frequency, 

mid-frequency, and high frequency 

cetaceans was 18, 0.5, and 120.5 m, 

respectively and 10 m for phocids. Kitty 

Hawk Wind did not request 

authorization of take by Level A 

harassment, and we did not authorize 

Level A harassment in the IHA. 

Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that will feed into identifying the area 

ensonified above the acoustic 

thresholds, which include source levels 

and transmission loss coefficient. 

The Fugro SPR EAH 2D sparker is the 

only source with the potential to result 

in marine mammal harassment; 

therefore, the 160 dBrms isopleth 

resulting from this source is applied in 

ensonified area calculations. As noted 

previously, Kitty Hawk Wind intends to 

survey a total track-line distance of 

3,300 km over the course of 25 days. It 

is estimated that the sparker will be in 

operation for approximately 50 percent 

of this duration. During the remainder 

of survey days, only sources not 

expected to have the potential to result 

in take of marine mammals would be 

used. To be conservative, the sparker 

has been assigned a duration of 13 days 

(instead of 12.5 days). The distance to 

the 160 dBrms Level B harassment 

isopleth is calculated using the 

conservative practical spreading model 

and a source level of 213dBrms (Table 1). 

The resulting isopleth is 445 m. 

Kitty Hawk then considered track line 

coverage and isopleth distance to 

estimate the maximum ensonified area 

over a 24-hr period, also referred to as 

the zone of influence (ZOI). The 

estimated distance of the daily vessel 

track line was determined using the 

estimated average speed of the vessel (3 

knots [5.6 km/hr]) over a 24-hr 

operational period for a total daily track 

line coverage of 134.4 km. The ZOI was 

calculated by squaring the respective 

maximum distance to the Level B 

harassment threshold (445 m) and 

multiplying by the estimated daily 

vessel track line distance of 

approximately 134.4 km to obtain the 

area of a box (118.7km2). Then the 

ensonified area around the vessel at any 

given point (0.63) was added to that area 

to account for 1⁄2 of a circle at each end 

of the box. The resulting ZOI is 

119.3km2 (Table 4). 

The ZOI is a representation of the 

maximum extent of the ensonified area 

around a sound source over a 24-hr 

period. The ZOI was calculated per the 

following formula: 

ZOI = (Distance/day × 2r) + pr2

TABLE 4—ENSONIFIED AREA DURING SPARKER USE

Survey equipment 

Number 

of active 

survey days a

Estimated 

total line 

distance 

(km) 

Estimated 

distance 

per day 

(km) 

ZOI 

per day 

(km2) 

Fugro SPR EAH 2D Sparker ........................................................................... 13 1,700 133.4 119.3 

Marine Mammal Occurrence 

In this section we provide the 

information about the presence, density, 

or group dynamics of marine mammals 

that will inform the take calculations. 

Habitat-based density models 

produced by the Duke University 

Marine Geospatial Ecology Laboratory 

(Roberts et al., 2016, 2017, 2018, 2020) 

represent the best available information 

regarding marine mammal densities in 

the survey area. The density data 

presented by Roberts et al. (2016, 2017, 

2018, 2020) incorporates aerial and 

shipboard line-transect survey data from 

NMFS and other organizations and 

incorporates data from 8 physiographic 

and 16 dynamic oceanographic and 

biological covariates, and controls for 

the influence of sea state, group size, 

availability bias, and perception bias on 

the probability of making a sighting. 

These density models were originally 

developed for all cetacean taxa in the 

U.S. Atlantic (Roberts et al., 2016). In 

subsequent years, certain models have 

been updated based on additional data 

as well as certain methodological 

improvements. More information is 

available online at https:// 


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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 43223 

seamap.env.duke.edu/models/Duke/

EC/. Marine mammal density estimates 

in the survey area (animals/km2) were 

obtained using the most recent model 

results for all taxa (Roberts et al., 2016, 

2017, 2018, 2020). The updated models 

incorporate additional sighting data, 

including sightings from NOAA’s 

Atlantic Marine Assessment Program for 

Protected Species (AMAPPS) surveys. 

Monthly density grids (e.g., rasters) 

for each species were overlain with the 

Survey Area and values from all grid 

cells that overlapped the Survey Area 

were averaged to determine monthly 

mean density values for each species. 

Monthly mean density values within the 

Survey Area were averaged by season 

(Winter [December, January, February], 

Spring [March, April, May], Summer 

[June, July, August], Fall [September, 

October, November]) to provide 

seasonal density estimates. Since the 

HRG surveys would only occur during 

summer and fall, only those values were 

used in the take estimation analysis. 

Within each survey segment (Wind 

Development Area and offshore export 

cable corridor), the highest seasonal 

density estimates during the duration of 

the proposed survey were used to 

estimate take. 

Take Calculation and Estimation 

Here we describe how the information 

provided above is brought together to 

produce a quantitative take estimate. 

For most species, the authorized take 

amount is equal to the calculated take 

amount resulting from the following 

equation: D × ZOI × 13 days. We note 

the densities provided in Table 5 

represent the number of animals/100 

km; therefore, the density is normalized 

to 1km in the equation. However, for 

some species, this equation does not 

reflect those species that can travel is 

large groups—an important parameter to 

consider that is not captured by density 

values. The equation also does not 

capture the propensity of some 

delphinid species to be attracted to the 

vessel and bowride. Therefore, to 

account for these real-world situations, 

the authorized take is a product of group 

size. For large groups of spotted and 

short beaked common dolphins 

knowing their affinity for bow riding 

(and therefore coming very close to the 

vessel), Kitty Hawk Wind assumed one 

group could be taken each day of 

sparker operations (13 days). Based on 

previous survey data, as described in 

previous monitoring reports, Kitty Hawk 

Wind assumes an average group size for 

spotted dolphins is 16 in the survey 

area. For common dolphins, the overall 

average reported group size was 4 in all 

survey areas but the average group size 

during the geotechnical surveys was 17 

individuals. Therefore, in this case, 

Kitty Hawk Wind assumed a group of 17 

common dolphins could be taken on 

any given day of sparker operation. For 

Risso’s dolphin and pilot whales, one 

group is anticipated to be taken over the 

13 days of sparker operations. Average 

group size for these species are 25 and 

20, respectively (Reeves et al. 2002). 

Take for all other species is a reflection 

of the calculated take. Given the timing 

and location of the surveys, Kitty Hawk 

Wind is not requesting, nor are we 

proposing to authorize, take of NARWs 

or sei whales. Table 5 provides the 

amount of take authorized in the IHA. 

TABLE 5—MARINE MAMMAL DENSITY AND TAKE ESTIMATES

Species Stock 

Max avg 

seasonal 

density 

(animals/ 

100 km2) 1

Calculated 

take 

Authorized 

take 

Percent of 

population 

Humpback whale .............................. Gulf of Maine .................................... 0.084 1.297 1 <1 

Fin whale ........................................... Western North Atlantic ..................... 0.171 2.648 3 <1 

Minke whale ...................................... Canadian East Coast ....................... 0.105 1.634 2 <1 

Pilot whales ....................................... Western North Atlantic ..................... 0.073 1.139 3 20 <1 

Harbor porpoise ................................ Gulf of Maine/Bay of Fundy ............. 0.033 0.510 1 <1 

Bottlenose dolphin 2 .......................... Western North Atlantic, offshore ...... 7.913 122.725 123 <1 

Common dolphin ............................... Western North Atlantic ..................... 1.583 24.555 4 221 <1 

Atlantic spotted dolphin ..................... Western North Atlantic ..................... 7.669 118.937 4 208 <1 

Risso’s dolphin .................................. Western North Atlantic ..................... 0.058 0.893 4 25 <1 

1 Density values from Duke University (Roberts et al. 2016b, 2017, 2018, 2020). 2Estimates based on bottlenose dolphin stock preferred water depths (Reeves et al. 2002; Waring et al. 2016). 3 Roberts (2018) only provides density estimates for ‘‘generic’’ pilot whales and seals; therefore, an equal potential for takes has been assumed either for species or stocks within the larger group. The take adjusted from calculated value to account for encountering one group over 

the course of the 13 days of sparker use. 4Take adjusted from calculated take to account for encountering one group on each of the 13 days of sparker use. 

Mitigation 

In order to issue an IHA under section 

101(a)(5)(D) of the MMPA, NMFS must 

set forth the permissible methods of 

taking pursuant to the activity, and 

other means of effecting the least 

practicable impact on the species or 

stock and its habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance, and on 

the availability of the species or stock 

for taking for certain subsistence uses 

(latter not applicable for this action). 

NMFS regulations require applicants for 

incidental take authorizations to include 

information about the availability and 

feasibility (economic and technological) 

of equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned); 

and 

(2) The practicability of the measures 

for applicant implementation, which 


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may consider such things as cost and 

impact on operations. 

Mitigation for Marine Mammals and 

Their Habitat 

NMFS proposes that the following 

mitigation measures be implemented 

during Kitty Hawk Wind’s planned 

marine site characterization surveys. 

Marine Mammal Shutdown Zones 

An immediate shutdown of the 

Sparker would be required if a marine 

mammal is sighted entering or within its 

respective exclusion zone (Table 6). The 

vessel operator must comply 

immediately with any call for shutdown 

by the Lead PSO. Any disagreement 

between the Lead PSO and vessel 

operator should be discussed only after 

shutdown has occurred. Subsequent 

restart of the survey equipment can be 

initiated if the animal has been observed 

exiting its respective exclusion zone or 

until an additional time period has 

elapsed (i.e., 30 minutes for all other 

species). Table 6 provides the required 

shutdown zones. 

TABLE 6—SHUTDOWN ZONES DURING

SPARKER USE

Species 

Shutdown zone 

(m) 

ESA-listed marine mammals ................... 500 

Non-ESA marine mammals 1 .................. 100 

1 If a delphinid from specified genera is visually detected approaching the vessel (i.e., to bow ride) or 

towed equipment, shutdown is not required. 

Pre-Clearance of the Shutdown Zones 

Kitty Hawk Wind would implement a 

30-minute pre-clearance period of the 

shutdown zones prior to the initiation of 

ramp-up of HRG equipment. During this 

period, the exclusion zone 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 

shutdown zone. If a marine mammal is 

observed within the shutdown zone 

during the pre-clearance period, rampup may not begin until the animal(s) has 

been observed exiting its respective 

shutdown zone or until an additional 

time period has elapsed with no further 

sighting (i.e., 15 minutes for small 

odontocetes, and 30 minutes for all 

other species). Kitty Hawk Wind must 

clear an area of 500 m for all ESA-listed 

marine mammals and 100 m for all 

other marine mammals around the 

sparker prior to commencing a survey 

(or when a break in operation greater 

than 30 minutes occurs). 

Shutdown Procedures 

The vessel operator must comply 

immediately with any call for shutdown 

by the Lead PSO. Any disagreement 

between the Lead PSO and vessel 

operator should be discussed only after 

shutdown has occurred. Subsequent 

restart of the survey equipment can be 

initiated if the animal has been observed 

exiting its respective shutdown zone or 

the relevant time period has lapsed 

without re-detection (15 minutes for 

small odontocetes and seals, and 30 

minutes for all other species). 

The shutdown requirement would be 

waived for small delphinids of the 

following genera: Delphinus, Stenella 

(frontalis only), and Tursiops. 

Specifically, if a delphinid from the 

specified genera s visually detected 

approaching the vessel (i.e., to bow ride) 

or towed equipment, shutdown is not 

required. Furthermore, if there is 

uncertainty regarding identification of a 

marine mammal species (i.e., whether 

the observed marine mammal(s) belongs 

to one of the delphinid genera for which 

shutdown is waived), PSOs must use 

best professional judgement in making 

the decision to call for a shutdown. 

Additionally, shutdown is required if a 

delphinid detected in the exclusion 

zone and belongs to a genus other than 

those specified. 

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 only 

if the PSOs have maintained constant 

observation and the shutdown zone is 

clear of marine mammals. If the source 

is turned off for more than 30 minutes, 

it may only be restarted after PSOs have 

cleared the shutdown zones for 30 

minutes. 

If a species for which authorization 

has not been granted, or, a species for 

which authorization has been granted 

but the authorized number of takes have 

been met, approaches or is observed 

within the Level B harassment zone 

(445 m), shutdown would be required. 

Ramp-Up 

The Fugro SPR EAH 2D Sparker 

operates on a binary on/off switch and 

thus ramp-up is not technically feasible 

for this piece of equipment. 

Vessel Strike Avoidance 

Kitty Hawk Wind will ensure that 

vessel operators and crew maintain a 

vigilant watch for marine mammals and 

slow down or stop their vessels to avoid 

striking these species. All personnel 

responsible for navigation and marine 

mammal observation duties will receive 

site-specific training on marine 

mammals sighting/reporting and vessel 

strike avoidance measures. Vessel strike 

avoidance measures would include the 

following, except under circumstances 

when complying with these 

requirements would put the safety of the 

vessel or crew at risk: 

• Vessel operators and crews must 

maintain a vigilant watch for all 

protected species and slow down, stop 

their vessel, or alter course, as 

appropriate and regardless of vessel 

size, to avoid striking any protected 

species. A visual observer aboard the 

vessel must monitor a vessel strike 

avoidance zone based on the 

appropriate separation distance around 

the vessel (distances stated below). 

Visual observers monitoring the vessel 

strike avoidance zone may be thirdparty observers (i.e., PSOs) or crew 

members, but crew members 

responsible for these duties must be 

provided sufficient training to (1) 

distinguish protected species from other 

phenomena and (2) broadly to identify 

a marine mammal as a right whale, 

other whale (defined in this context as 

sperm whales or baleen whales other 

than right whales), or other marine 

mammal; 

• All vessels (e.g., source vessels, 

chase vessels, supply vessels), 

regardless of size, must observe a 10- 

knot speed restriction in the unlikely 

scenario a NARW dynamic management 

area (DMA) is in effect; 

• All vessels must reduce their speed 

to 10 knots or less when mother/calf 

pairs, pods, or large assemblages of 

cetaceans are observed near a vessel 

underway; 

• All vessels must maintain a 

minimum separation distance of 500 m 

from all ESA-listed marine mammals. If 

a whale is observed but cannot be 

confirmed as a species other than an 

ESA-listed whale, the vessel operator 

must assume that it is an ESA-listed 

whale and take appropriate action; 

• All vessels must, to the maximum 

extent practicable, attempt to maintain a 

minimum separation distance of 100 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); 

• When marine mammals are sighted 

while a vessel is underway, the vessel 

shall take action as necessary to avoid 

violating the relevant separation 

distance (e.g., attempt to remain parallel 

to the animal’s course, avoid excessive 

speed or abrupt changes in direction 

until the animal has left the area). If 

marine mammals are sighted within the 

relevant separation distance, the vessel 

must reduce speed and shift the engine 

to neutral, not engaging the engines 


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until animals are clear of the area. This 

does not apply to any vessel towing gear 

or any vessel that is navigationally 

constrained; and 

• These requirements do not apply in 

any case where compliance would 

create an imminent and serious threat to 

a person or vessel or to the extent that 

a vessel is restricted in its ability to 

maneuver and, because of the 

restriction, cannot comply. 

Project-specific training will be 

conducted for all vessel crew prior to 

the start of a survey and during any 

changes in crew such that all survey 

personnel are fully aware and 

understand the mitigation, monitoring, 

and reporting requirements. Prior to 

implementation with vessel crews, the 

training program will be provided to 

NMFS for review and approval. 

Confirmation of the training and 

understanding of the requirements will 

be documented on a training course log 

sheet. Signing the log sheet will certify 

that the crew member understands and 

will comply with the necessary 

requirements throughout the survey 

activities. 

Based on our evaluation of Kitty 

Hawk Wind’s proposed measures, 

NMFS has determined that the 

mitigation measures provide the means 

of effecting the least practicable impact 

on marine mammal species or stocks 

and their habitat, paying particular 

attention to rookeries, mating grounds, 

and areas of similar significance. 

Monitoring and Reporting 

In order to issue an IHA for an 

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

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104 (a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present in the planned action area. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) Action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) Long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and 

• Mitigation and monitoring 

effectiveness. 

Monitoring Measures 

Visual monitoring will be performed 

by qualified, NMFS-approved PSOs, the 

resumes of whom will be provided to 

NMFS for review and approval prior to 

the start of survey activities. Kitty Hawk 

Wind would employ independent, 

dedicated, trained PSOs, meaning that 

the PSOs must (1) be employed by a 

third-party observer provider, (2) have 

no tasks other than to conduct 

observational effort, collect data, and 

communicate with and instruct relevant 

vessel crew with regard to the presence 

of marine mammals and mitigation 

requirements (including brief alerts 

regarding maritime hazards), and (3) 

have successfully completed an 

approved PSO training course 

appropriate for their designated task. 

The PSOs will be responsible for 

monitoring the waters surrounding each 

survey vessel to the farthest extent 

permitted by sighting conditions, 

including exclusion zones, during all 

HRG survey operations. PSOs will 

visually monitor and identify marine 

mammals, including those approaching 

or entering the established exclusion 

zones during survey activities. It will be 

the responsibility of the Lead PSO on 

duty to communicate the presence of 

marine mammals as well as to 

communicate the action(s) that are 

necessary to ensure mitigation and 

monitoring requirements are 

implemented as appropriate. 

During all HRG survey operations 

(e.g., any day on which use of an HRG 

source is planned to occur), a minimum 

of one PSO must be on duty during 

daylight operations on each survey 

vessel, conducting visual observations 

at all times on all active survey vessels 

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. The PSO(s) would ensure 

360° visual coverage around the vessel 

from the most appropriate observation 

posts and would conduct visual 

observations using binoculars and/or 

night vision goggles and the naked eye 

while free from distractions and in a 

consistent, systematic, and diligent 

manner. PSOs may be on watch for a 

maximum of 4 consecutive hours 

followed by a break of at least 2 hours 

between watches and may conduct a 

maximum of 12 hours of observation per 

24-hour period. In cases where multiple 

vessels are surveying concurrently, any 

observations of marine mammals would 

be communicated to PSOs on all nearby 

survey vessels. 

PSOs must be equipped with 

binoculars and have the ability to 

estimate distance and bearing to detect 

marine mammals, particularly in 

proximity to exclusion zones. 

Reticulated binoculars must also be 

available to PSOs for use as appropriate 

based on conditions and visibility to 

support the sighting and monitoring of 

marine mammals. During nighttime 

operations, night-vision goggles with 

thermal clip-ons and infrared 

technology would be used. Position data 

would be recorded using hand-held or 

vessel GPS units for each sighting. 

During good conditions (e.g., daylight 

hours; Beaufort sea state 3 or less), to 

the maximum extent practicable, PSOs 

would also conduct observations when 

the acoustic source is not operating for 

comparison of sighting rates and 

behavior with and without use of the 

active acoustic sources. Any 

observations of marine mammals by 

crew members aboard any vessel 

associated with the survey would be 

relayed to the PSO team. 

Data on all PSO observations would 

be recorded based on standard PSO 

collection requirements. This would 

include dates, times, and locations of 

survey operations; dates and times of 

observations, location and weather; 

details of marine mammal sightings 

(e.g., species, numbers, behavior); and 

details of any observed marine mammal 

behavior that occurs (e.g., noted 

behavioral disturbances). 


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Reporting Measures 

Within 90 days after completion of 

survey activities or expiration of this 

IHA, whichever comes sooner, a final 

technical report will be provided to 

NMFS that fully documents the 

methods and monitoring protocols, 

summarizes the data recorded during 

monitoring, summarizes the number of 

marine mammals observed during 

survey activities (by species, when 

known), summarizes the mitigation 

actions taken during surveys (including 

what type of mitigation and the species 

and number of animals that prompted 

the mitigation action, when known), 

and provides an interpretation of the 

results and effectiveness of all 

mitigation and monitoring. Any 

recommendations made by NMFS must 

be addressed in the final report prior to 

acceptance by NMFS. All draft and final 

marine mammal and acoustic 

monitoring reports must be submitted to 

PR.ITP.MonitoringReports@noaa.gov 

and ITP.Daly@noaa.gov. The report 

must contain at minimum, the 

following: 

• PSO names and affiliations; 

• Dates of departures and returns to 

port with port name; 

• Dates and times (Greenwich Mean 

Time) of survey effort and times 

corresponding with PSO effort; 

• Vessel location (latitude/longitude) 

when survey effort begins and ends; 

vessel location at beginning and end of 

visual PSO duty shifts; 

• Vessel heading and speed at 

beginning and end of visual PSO duty 

shifts and upon any line change; 

• Environmental conditions while on 

visual survey (at beginning and end of 

PSO shift and whenever conditions 

change significantly), including wind 

speed and direction, Beaufort sea state, 

Beaufort wind force, swell height, 

weather conditions, cloud cover, sun 

glare, and overall visibility to the 

horizon; 

• Factors that may be contributing to 

impaired observations during each PSO 

shift change or as needed as 

environmental conditions change (e.g., 

vessel traffic, equipment malfunctions); 

and 

• Survey activity information, such as 

type of survey equipment in operation, 

acoustic source power output while in 

operation, and any other notes of 

significance (i.e., pre-clearance survey, 

ramp-up, shutdown, end of operations, 

etc.). 

If a marine mammal is sighted, the 

following information should be 

recorded: 

• Watch status (sighting made by PSO 

on/off effort, opportunistic, crew, 

alternate vessel/platform); 

• PSO who sighted the animal; 

• Time of sighting; 

• Vessel location at time of sighting; 

• Water depth; 

• Direction of vessel’s travel (compass 

direction); 

• Direction of animal’s travel relative 

to the vessel; 

• Pace of the animal; 

• Estimated distance to the animal 

and its heading relative to vessel at 

initial sighting; 

• Identification of the animal (e.g., 

genus/species, lowest possible 

taxonomic level, or unidentified); also 

note the composition of the group if 

there is a mix of species; 

• Estimated number of animals (high/ 

low/best); 

• Estimated number of animals by 

cohort (adults, yearlings, juveniles, 

calves, group composition, etc.); 

• Description (as many distinguishing 

features as possible of each individual 

seen, including length, shape, color, 

pattern, scars or markings, shape and 

size of dorsal fin, shape of head, and 

blow characteristics); 

• Detailed behavior observations (e.g., 

number of blows, number of surfaces, 

breaching, spyhopping, diving, feeding, 

traveling; as explicit and detailed as 

possible; note any observed changes in 

behavior); 

• Animal’s closest point of approach 

and/or closest distance from the center 

point of the acoustic source; 

• Platform activity at time of sighting 

(e.g., deploying, recovering, testing, data 

acquisition, other); and 

• Description of any actions 

implemented in response to the sighting 

(e.g., delays, shutdown, ramp-up, speed 

or course alteration, etc.) and time and 

location of the action. 

Although not anticipated, if a NARW 

is observed at any time by PSOs or 

personnel on any project vessels, during 

surveys or during vessel transit, Kitty 

Hawk Wind must immediately report 

sighting information to the NMFS 

NARW Sighting Advisory System: (866) 

755–6622. NARW sightings in any 

location must also be reported to the 

U.S. Coast Guard via channel 16. 

In the event that Kitty Hawk Wind 

personnel discover an injured or dead 

marine mammal, Kitty Hawk Wind 

would report the incident to the NMFS 

Office of Protected Resources (OPR) and 

the NMFS Southeast Marine Mammal 

Stranding Network within 24 hours. The 

report would include the following 

information: 

• Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

• Species identification (if known) or 

description of the animal(s) involved; 

• Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

• Observed behaviors of the 

animal(s), if alive; 

• If available, photographs or video 

footage of the animal(s); and 

• General circumstances under which 

the animal was discovered. 

In the unanticipated event of a ship 

strike of a marine mammal by any vessel 

involved in the activities covered by the 

IHA, Kitty Hawk Wind would report the 

incident to the NMFS OPR and the 

NMFS Southeast Marine Mammal 

Stranding Network within 24 hours. The 

report would include the following 

information: 

• Time, date, and location (latitude/ 

longitude) of the incident; 

• Species identification (if known) or 

description of the animal(s) involved; 

• Vessel’s speed during and leading 

up to the incident; 

• Vessel’s course/heading and what 

operations were being conducted (if 

applicable); 

• Status of all sound sources in use; 

• Description of avoidance measures/ 

requirements that were in place at the 

time of the strike and what additional 

measures were taken, if any, to avoid 

strike; 

• Environmental conditions (e.g., 

wind speed and direction, Beaufort sea 

state, cloud cover, visibility) 

immediately preceding the strike; 

• Estimated size and length of animal 

that was struck; 

• Description of the behavior of the 

marine mammal immediately preceding 

and following the strike; 

• If available, description of the 

presence and behavior of any other 

marine mammals immediately 

preceding the strike; 

• Estimated fate of the animal (e.g., 

dead, injured but alive, injured and 

moving, blood or tissue observed in the 

water, status unknown, disappeared); 

and 

• To the extent practicable, 

photographs or video footage of the 

animal(s). 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 


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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 43227 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any responses (e.g., intensity, 

duration), the context of any responses 

(e.g., critical reproductive time or 

location, migration), as well as effects 

on habitat, and the likely effectiveness 

of the mitigation. We also assess the 

number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’s implementing 

regulations (54 FR 40338; September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

To avoid repetition, our analysis 

applies to all the species listed in Table 

5, given that NMFS expects the 

anticipated effects of the planned survey 

to be similar in nature. NMFS does not 

anticipate that serious injury or 

mortality would occur as a result from 

HRG surveys, even in the absence of 

mitigation, and no serious injury or 

mortality is authorized. As discussed in 

the Potential Effects of Specified 

Activities on Marine Mammals and their 

Habitat section, non-auditory physical 

effects and vessel strike are not expected 

to occur. NMFS expects that all 

potential takes would be in the form of 

short-term Level B behavioral 

harassment in the form of temporary 

avoidance of the area or decreased 

foraging (if such activity was occurring), 

reactions that are considered to be of 

low severity and with no lasting 

biological consequences (e.g., Southall 

et al., 2007). Even repeated Level B 

harassment of some small subset of an 

overall stock is unlikely to result in any 

significant realized decrease in viability 

for the affected individuals, and thus 

would not result in any adverse impact 

to the stock as a whole. As described 

previously due to the nature of the 

operations, Level A harassment is not 

expected even in the absence of 

mitigation. The small size of the Level 

A harassment zones and the required 

shutdown zones for certain activities 

further bolster this conclusion. In 

addition to being temporary, the 

maximum expected Level B harassment 

zone around a survey vessel is 445 m, 

producing expected effects of 

particularly low severity. Therefore, the 

ensonified area surrounding each vessel 

is relatively small compared to the 

overall distribution of the animals in the 

area and their use of the habitat. 

Feeding behavior is not likely to be 

significantly impacted as prey species 

are mobile and are broadly distributed 

throughout the survey area; therefore, 

marine mammals that may be 

temporarily displaced during survey 

activities are expected to be able to 

resume foraging once they have moved 

away from areas with disturbing levels 

of underwater noise. Because of the 

temporary nature of the disturbance and 

the availability of similar habitat and 

resources in the surrounding area, the 

impacts to marine mammals and the 

food sources that they utilize are not 

expected to cause significant or longterm consequences for individual 

marine mammals or their populations. 

There are no rookeries, mating or 

calving grounds known to be 

biologically important to marine 

mammals within the planned survey 

area at the time of survey (the 

biologically important area (BIA) for 

NARWs is for a time period outside the 

proposed survey time period) and there 

are no primary feeding areas known to 

be biologically important to marine 

mammals within the planned survey 

area. In addition, there is no designated 

critical habitat for any ESA-listed 

marine mammals in the planned survey 

area. 

NMFS expects that takes would be in 

the form of short-term Level B 

behavioral harassment by way of brief 

startling reactions and/or temporary 

vacating of the area, or decreased 

foraging (if such activity was 

occurring)—reactions that (at the scale 

and intensity anticipated here) are 

considered to be of low severity, with 

no lasting biological consequences. 

Since both the sources and marine 

mammals are mobile, animals would 

only be exposed briefly to a small 

ensonified area that might result in take. 

Additionally, required mitigation 

measures (e.g., shutdown) would further 

reduce exposure to sound that could 

result in more severe behavioral 

harassment. In summary, and as 

described above, the following factors 

primarily support our determination 

that the impacts resulting from this 

activity are not expected to adversely 

affect the species or stock through 

effects on annual rates of recruitment or 

survival: 

• No mortality or serious injury is 

anticipated or authorized; 

• No Level A harassment (PTS) is 

anticipated, even in the absence of 

mitigation measures, or proposed to be 

authorized; 

• Take is anticipated to be primarily 

Level B behavioral harassment 

consisting of brief startling reactions 

and/or temporary avoidance of the 

survey area and could occur over a very 

short time period (13 days); 

• No areas of particular importance to 

marine mammals (e.g., BIA, critical 

habitat) occur within the survey area; 

and 

• Impacts on marine mammal habitat 

and species that serve as prey species 

for marine mammals are expected to be 

minimal and the alternate areas of 

similar habitat value for marine 

mammals are readily available. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

proposed monitoring and mitigation 

measures, NMFS finds that the total 

marine mammal take from the proposed 

activity will have a negligible impact on 

all affected marine mammal species or 

stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under sections 101(a)(5)(A) and (D) of 

the MMPA for specified activities other 

than military readiness activities. The 

MMPA does not define small numbers 

and so, in practice, where estimated 

numbers are available, NMFS compares 

the number of individuals taken to the 

most appropriate estimation of 

abundance of the relevant species or 

stock in our determination of whether 

an authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. For this IHA, take of all 

species or stocks is below one third of 

the estimated stock abundance (in fact, 

take of individuals is less than 7 percent 

of the abundance for all affected stocks). 

Based on the analysis contained 

herein of the proposed activity 

(including the proposed mitigation and 

monitoring measures) and the 

anticipated take of marine mammals, 

NMFS finds that small numbers of 

marine mammals will be taken relative 

to the population size of the affected 

species or stocks. 


jbell on DSKJLSW7X2PROD with NOTICES
43228 Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Notices 

Unmitigable Adverse Impact Analysis 

and Determination 

There are no relevant subsistence uses 

of the affected marine mammal stocks or 

species implicated by this action. 

Therefore, NMFS has determined that 

the total taking of affected species or 

stocks would not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 

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 

whenever we propose to authorize take 

for endangered or threatened species. 

On June 29, 2021, NMFS Greater 

Atlantic Regional Fisheries Office 

(GARFO) completed programmatic 

consultation pursuant to section 7 of the 

ESA concerning the effects of certain 

site assessment and site characterization 

activities to be carried out to support the 

siting of offshore wind energy 

development projects off the U.S. 

Atlantic coast. The consultation 

concluded that marine site assessment 

surveys, such as those proposed by Kitty 

Hawk Wind, may affect but are not 

likely to adversely affect, ESA-listed 

marine mammals provided the project 

design criteria and best management 

practices identified in that consultation 

are followed. The scope of Kitty Hawk 

Wind’s surveys fall within the scope of 

the activities analyzed in that 

consultation and NMFS has included a 

provision in the IHA that all 

consultation project design criteria 

(PDCs) and best management practices 

(BMPs) be adhered to. Consideration of 

potential issuance of IHA by NMFS OPR 

for Survey Activities was also included; 

therefore, NMFS action of issuing an 

IHA to Kitty Hawk Wind is covered by 

the 2021 programmatic consultation. 

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 review our 

proposed action (i.e., the issuance of an 

IHA) with respect to potential impacts 

on the human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 (IHAs with no 

anticipated serious injury or mortality) 

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 IHA qualifies to be categorically 

excluded from further NEPA review. 

Authorization 

NMFS has issued an IHA to Kitty 

Hawk Wind for the potential harassment 

of small numbers of nine species marine 

mammal species incidental to 

conducting marine site characterization 

surveys offshore of Virginia and North 

Carolina provided the mitigation, 

monitoring and reporting requirements 

contained within the IHA are followed. 

Dated: July 27, 2021. 

Angela Somma, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–16774 Filed 8–5–21; 8:45 am] 

BILLING CODE 3510–22–P 

COMMITTEE FOR PURCHASE FROM 

PEOPLE WHO ARE BLIND OR 

SEVERELY DISABLED 

Procurement List; Additions and 

Deletions 

AGENCY: Committee for Purchase From 

People Who Are Blind or Severely 

Disabled. 

ACTION: Addition to and deletions from 

the Procurement List. 

SUMMARY: This action adds service(s) to 

the Procurement List that will be 

furnished by nonprofit agencies 

employing persons who are blind or 

have other severe disabilities, and 

deletes product(s) and service(s) from 

the Procurement List previously 

furnished by such agencies. 

DATES: Date added to and deleted from 

the Procurement List: September 05, 

2021. 

ADDRESSES: Committee for Purchase 

From People Who Are Blind or Severely 

Disabled, 1401 S. Clark Street, Suite 

715, Arlington, Virginia 22202–4149. 

FOR FURTHER INFORMATION CONTACT: 

Michael R. Jurkowski, Telephone: (703) 

785–6404, or email CMTEFedReg@

AbilityOne.gov. 

SUPPLEMENTARY INFORMATION: 

Additions 

On 5/14/2021 the Committee for 

Purchase From People Who Are Blind 

or Severely Disabled published notice of 

proposed additions to the Procurement 

List. This notice is published pursuant 

to 41 U.S.C. 8503 (a)(2) and 41 CFR 51– 

2.3. 

After consideration of the material 

presented to it concerning capability of 

qualified nonprofit agencies to provide 

the product(s) and service(s) and impact 

of the additions on the current or most 

recent contractors, the Committee has 

determined that the product(s) and 

service(s) listed below are suitable for 

procurement by the Federal Government 

under 41 U.S.C. 8501–8506 and 41 CFR 

51–2.4. 

Regulatory Flexibility Act Certification 

I certify that the following action will 

not have a significant impact on a 

substantial number of small entities. 

The major factors considered for this 

certification were: 

1. The action will not result in any 

additional reporting, recordkeeping or 

other compliance requirements for small 

entities other than the small 

organizations that will furnish the 

product(s) and service(s) to the 

Government. 

2. The action will result in 

authorizing small entities to furnish the 

product(s) and service(s) to the 

Government. 

3. There are no known regulatory 

alternatives which would accomplish 

the objectives of the Javits-WagnerO’Day Act (41 U.S.C. 8501–8506) in 

connection with the product(s) and 

service(s) proposed for addition to the 

Procurement List. 

End of Certification 

Accordingly, the following service(s) 

are added to the Procurement List: 

Service(s) 

Service Type: Third Party Logistics Support 

Services 

Mandatory for: US Army, Army Contracting 

Command, Aberdeen Proving Ground, 

MD 

Designated Source of Supply: Goodwill 

Industries of South Florida, Inc., Miami, 

FL 

Contracting Activity: Dept of the Army, 

W6QK ACC–APG 

The Committee finds good cause to 

dispense with the 30-day delay in the 

effective date normally required by the 

Administrative Procedure Act. See 5 U.S.C. 

553(d). This addition to the Committee’s 

Procurement List is effectuated because of 

the expiration of the Army Contracting 

Command, Aberdeen Proving Ground, 3rd 

Party Logistics Support Services contract. 

The Federal customer contacted and has 


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