Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40469 

californianus). A description of the 

methods and inputs used to estimate 

take anticipated to occur and, 

ultimately, the take that was authorized 

is found in the previous documents 

referenced above. The data inputs and 

methods of estimating take are identical 

to those used in the initial IHA. NMFS 

has reviewed recent Stock Assessment 

Reports, information on relevant 

Unusual Mortality Events, and recent 

scientific literature, and determined that 

no new information affects our original 

analysis of impacts or take estimate 

under the initial IHA. 

We refer to the documents related to 

the previously issued IHA, which 

include the Federal Register notice of 

the issuance of the initial 2020 IHA for 

the Navy’s construction work (85 FR 

33129; June 1, 2020), the Navy’s 

application, the Federal Register notice 

of the proposed IHA (85 FR 21179; April 

16, 2020), and all associated references 

and documents. 

Determinations 

The Navy will conduct activities as 

analyzed in the initial 2020 IHA. As 

described above, the number of 

authorized takes of the same species and 

stocks of marine mammals are identical 

to the numbers that were found to meet 

the negligible impact and small 

numbers standards and authorized 

under the initial IHA and no new 

information has emerged that would 

change those findings. The re-issued 

2021 IHA includes identical required 

mitigation, monitoring, and reporting 

measures as the initial IHA, and there is 

no new information suggesting that our 

analysis or findings should change. 

Based on the information contained 

here and in the referenced documents, 

NMFS has determined the following: (1) 

The required mitigation measures will 

effect the least practicable impact on 

marine mammal species or stocks and 

their habitat; (2) the authorized takes 

will have a negligible impact on the 

affected marine mammal species or 

stocks; (3) the authorized takes 

represent small numbers of marine 

mammals relative to the affected stock 

abundances; and (4) the Navy’s 

activities will not have an unmitigable 

adverse impact on taking for subsistence 

purposes as no relevant subsistence uses 

of marine mammals are implicated by 

this action. 

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 with respect to 

environmental consequences on the 

human environment. 

Accordingly, NMFS has determined 

that the issuance of the IHA qualifies to 

be categorically excluded from further 

NEPA review. This action is consistent 

with categories of activities identified in 

CE B4 of the Companion Manual for 

NAO 216–6A, which do not 

individually or cumulatively have the 

potential for significant impacts on the 

quality of the human environment and 

for which we have not identified any 

extraordinary circumstances that would 

preclude this categorical exclusion. 

Endangered Species Act (ESA) 

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. 

However, no incidental take of ESAlisted species is authorized or expected 

to result from this activity. Therefore, 

NMFS has determined that formal 

consultation under section 7 of the ESA 

is not required for this action. 

Authorization 

NMFS has issued an IHA to the Navy 

for in-water construction activities 

associated with the specified activity 

from September 15, 2020, through 

September 14, 2021. All previously 

described mitigation, monitoring, and 

reporting requirements from the initial 

2020 IHA are incorporated. 

Dated: July 22, 2021. 

Angela Somma, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–16022 Filed 7–27–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB194] 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to Marine Site 

Characterization Surveys Off of 

Massachusetts and Rhode Island 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; issuance of an incidental 

harassment authorization. 

SUMMARY: In accordance with the 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that NMFS has issued an incidental 

harassment authorization (IHA) to 

Vineyard Wind 1 to incidentally harass, 

by Level B harassment only, marine 

mammals during marine site 

characterization surveys off of 

Massachusetts and Rhode Island in the 

area of Commercial Lease of Submerged 

Lands for Renewable Energy 

Development on the Outer Continental 

Shelf Lease Area OCS–A 0501 and along 

the Offshore Export Cable Corridor. 

DATES: This Authorization is applicable 

for a period of one year from the date 

of issuance. 

FOR FURTHER INFORMATION CONTACT: 

Leah Davis, 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/national/ 

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


khammond on DSKJM1Z7X2PROD with NOTICES
40470 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

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. 

The definitions of all applicable 

MMPA statutory terms cited above are 

included in the relevant sections below. 

Summary of Request 

On January 29, 2021, NMFS received 

a request from Vineyard Wind 1 for an 

IHA to take marine mammals incidental 

to marine site characterization surveys 

off of Massachusetts and Rhode Island 

for the 501 North wind energy project. 

The application was deemed adequate 

and complete on May 19, 2021. 

Vineyard Wind 1’s request is for take of 

a small number of 14 species of marine 

mammals by Level B harassment only. 

Neither Vineyard Wind 1 nor NMFS 

expects serious injury or mortality to 

result from this activity and, therefore, 

an IHA is appropriate. 

NMFS previously issued an IHA to 

Vineyard Wind LLC (Vineyard Wind) 

for similar marine site characterization 

surveys (85 FR 42357; July 14, 2020), 

and NMFS has received a request from 

Vineyard Wind for a renewal of that 

IHA. 

Since issuance of Vineyard Wind’s 

previous IHA (85 FR 42357; July 14, 

2020), Vineyard Wind has split into 

separate corporate entities, Vineyard 

Wind (to which the previous IHA was 

issued), and Vineyard Wind 1, which 

holds assets associated with the 501 

North wind energy project. Therefore, 

although the surveys analyzed in this 

IHA to Vineyard Wind 1 will occur in 

an area that overlaps with a portion of 

the project area included in the previous 

Vineyard Wind IHA and renewal of that 

IHA (86 FR 38296; July 20, 2021), this 

IHA is issued to a separate corporate 

entity (Vineyard Wind 1). 

Description of the Specified Activity 

Overview 

As part of its overall marine site 

characterization survey operations, 

Vineyard Wind 1 plans to conduct highresolution geophysical (HRG) surveys in 

the Lease Area and along the Offshore 

Export Cable Corridor (OECC) off of 

Massachusetts and Rhode Island. 

The purpose of the marine site 

characterization surveys is to obtain a 

baseline assessment of seabed/subsurface soil conditions in the Lease Area 

and cable route corridors to support the 

siting of potential future offshore wind 

projects. Underwater sound resulting 

from Vineyard Wind 1’s planned site 

characterization survey activities, 

specifically HRG surveys, has the 

potential to result in incidental take of 

marine mammals in the form of 

behavioral harassment. 

Dates and Duration 

The total duration of survey activities 

will be approximately 170 survey days. 

Each day that a survey vessel is 

operating counts as a single survey day, 

e.g., two survey vessels operating on the 

same day count as two survey days. 

This schedule is based on assumed 24- 

hour operations. Vineyard Wind 1 is 

beginning its survey activities in 

summer 2021, and will be continuing 

them for up to one year (though the 

actual duration will likely be shorter, 

particularly given the use of multiple 

vessels). The IHA is effective for one 

year from the date of issuance. 

Specific Geographic Region 

Vineyard Wind 1’s planned survey 

activities will occur in the Lease Area, 

located approximately 24 kilometers 

(km) (13 nautical miles (nm)) from the 

southeast corner of Martha’s Vineyard, 

and along the OECC route (landfall) in 

both Federal and State waters of 

Massachusetts (see Figure 1). The OECC 

routes will extend from the lease areas 

to shallow water areas near potential 

landfall locations. Water depths in the 

Lease Area range from about 35 to 60 

meters (m; 115 to 197 feet (ft)). Water 

depths along the potential OECC route 

range from 2.5 to approximately 35 m (8 

to approximately 115 ft). For the 

purpose of this IHA, the Lease Area and 

OECC are collectively referred to as the 

project area. The project area for this 

IHA overlaps with the project area for 

Vineyard Wind’s previous IHA (85 FR 

42357; July 14, 2020) for which NMFS 

has issued a renewal to Vineyard Wind 

(86 FR 38296; July 20, 2021). 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40471 

Detailed Description of Specific Activity 

Vineyard Wind 1 plans to conduct 

HRG survey operations, including single 

and multibeam depth sounding, 

magnetic intensity measurements, 

seafloor imaging, and shallow and 

medium penetration sub bottom 

profiling. The HRG surveys may be 

conducted using any or all of the 

following equipment types: Side scan 

sonar, single and multibeam 

echosounders, magnetometers and 

gradiometers, parametric sub-bottom 

profiler (SBP), CHIRP SBP, boomers, or 

sparkers. HRG survey activities are 

anticipated to include multiple survey 

vessels (up to eight, depending on the 

season), which may operate 

concurrently, though surveys will be 

spaced to avoid geophysical interference 

with one another. Vineyard Wind 1 

assumes that HRG survey activities will 

be conducted continuously 24 hours per 

day, with an assumed daily survey 

distance of 80 km (43 nm). Survey 

vessels will maintain a speed of 

approximately 4 knots (2.1 m/second) 

while surveying, which equates to 181 

km per 24-hour period. However, based 

on past survey experience (i.e., 

knowledge of typical daily downtime 

due to weather, system malfunctions, 

etc.), Vineyard Wind 1 assumes 80 km 

as the average daily distance. 

The following acoustic sources 

planned for use during Vineyard Wind 

1’s HRG survey activities are 

conservatively assumed to have the 

potential to result in incidental take of 

marine mammals: 

• Shallow Penetration Sub-bottom 

Profilers (SBP; Chirps) to map the nearsurface stratigraphy (top 0 to 5 m (0 to 

16 ft)) of sediment below seabed). A 

chirp system emits sonar pulses that 

increase in frequency from about 2 to 20 

kHz over time. The pulse length 

frequency range can be adjusted to meet 

project variables. These sources are 

typically mounted on the hull of the 

vessel or from a side pole; and 

• Medium Penetration SBPs (Boomers 

and Sparkers) to map deeper subsurface 

stratigraphy as needed. A boomer is a 

broadband sound source operating in 

the 3.5 Hz to 10 kHz frequency range. 

Sparkers create acoustic pulses from 50 

Hz to 4 kHz omnidirectionally from the 

source that can penetrate several 

hundred meters into the seafloor. These 

sources are typically towed behind the 

vessel. 

Additional acoustic sources not 

expected to have the potential to cause 

take of marine mammals were described 

in the notice of proposed IHA (86 FR 

30266; June 7, 2021). Table 1 identifies 

the representative survey equipment 

with the expected potential to result in 

exposure of marine mammals and 

potentially result in take. The make and 

model of the listed survey equipment 

may vary depending on availability and 

the final equipment choices will vary 

depending on the final survey design, 

vessel availability, and survey 

contractor selection. 

HRG surveys are expected to use 

several equipment types concurrently in 

order to collect multiple aspects of 

geophysical data along one transect. 

Selection of equipment combinations is 

based on specific survey objectives. 


khammond on DSKJM1Z7X2PROD with NOTICESEN28JY21.016</GPH>

74'0.IJOO'W 73"30.IJOO'W 73"0,IIOO'W 72"30.IIOO'W 72'0.IIOO'W 71"30.IIOO'W 71 '0.IIOO'W 70'30.IIOO'W 70'0.llOO'W 69"30,IIOO'W 

i □ Potential survey 

D Vlneyan:I Wind 0501 lease area .... § 

.. @ ~ 0 25 50km 

! 0 10 20NM 

z 

£ I ... 

i" 

! I 

i 

f .. i 

~ 

i I ~ 

I 

C i 

Iii 

73'30.IJOO'W 13"0.000'W 72"30,0DO'W 72"0.000'W 71"30.000'W 71"0.000'W 70'30.000'W 70'0.0DO'W 69'30.IIOO'W ~ 

Figure 1 -- Survey Area 
40472 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

TABLE 1—SUMMARY OF REPRESENTATIVE HRG EQUIPMENT

System Frequency 

(kHz) 

Beam width 

(°) 

Pulse 

duration 

(ms) 

Repetition 

rate 

(Hz) 

In-beam source level 

(dB) 

RMS Pk 

Shallow subbottom profiler (non-impulsive) 

EdgeTech Chirp 216 ................................ 2–16 65 2 3.75 178 182 

Deep seismic profiler (impulsive) 

Applied Acoustics AA251 Boomer ........... 0.2–15 180 0.8 2 205 212 

GeoMarine Geo Spark 2000 (400 tip) ..... 0.05–3 180 3.4 1 203 213 

Note: While many of these sources overlap with Vineyard Wind’s previous IHA (85 FR 42357; July 14, 2020), the operating parameters used 

as proxies in modeling some sources were changed as a result of HRG modeling recommendations from NMFS. For data source information, 

please see Table A–3 in Vineyard Wind 1’s application. 

Required mitigation, monitoring, and 

reporting measures are described in 

detail later in this document (see 

Mitigation Measures and Monitoring 

and Reporting). 

Comments and Responses 

A notice of NMFS’ proposal to issue 

an IHA to Vineyard Wind 1 was 

published in the Federal Register on 

June 7, 2021 (86 FR 30266). That notice 

described, in detail, Vineyard Wind 1’s 

activity, the marine mammal species 

that may be affected by the activity, and 

the anticipated effects on marine 

mammals. During the 30-day comment 

period, NMFS received substantive 

comments from Oceana, and from a 

group of environmental nongovernmental organizations (ENGOs) 

including the Natural Resources Defense 

Council, Conservation Law Foundation, 

National Wildlife Federation, Defenders 

of Wildlife, Southern Environmental 

Law Center, Surfrider Foundation, Mass 

Audubon, Friends of the Earth, 

International Fund for Animal Welfare, 

NY4WHALES, WDC Whale and Dolphin 

Conservation, Marine Mammal Alliance 

Nantucket, Gotham Whale, All Our 

Energy, Seatuck Environmental 

Association, Inland Ocean Coalition, 

Nassau Hiking & Outdoor Club, 

Connecticut Audubon Society, and 

Cetacean Society International. 

Summaries of all substantive comments, 

and our responses to these comments, 

are provided here. Please see the 

comment letters, available online at: 

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

incidental-take-authorization-vineyardwind-1-marine-site-characterizationsurveys, for full detail regarding the 

comments received. 

Comment 1: The ENGOs stated that 

NMFS must ensure undisturbed access 

to foraging habitat to adequately protect 

North Atlantic right whales due to what 

the commenters describe as an 

energetically expensive foraging 

strategy. Oceana also noted the 

importance of the project area to North 

Atlantic right whales year-round, citing 

Oleson et al. (2020). 

Response: As NMFS stated in the 

proposed IHA, part of the project area 

coincides directly with year-round 

‘‘core’’ North Atlantic right whale 

foraging habitat (Oleson et al. 2020) 

south of Martha’s Vineyard and 

Nantucket islands where both visual 

and acoustic detections of North 

Atlantic right whales indicate a nearly 

year-round presence (Oleson et al., 

2020). NMFS notes that prey for North 

Atlantic right whales are mobile and 

broadly distributed throughout the 

project area; therefore, North Atlantic 

right whales are expected to be able to 

resume foraging once they have moved 

away from any areas with potentially 

disturbing levels of underwater noise. 

There is ample foraging habitat adjacent 

to the project area that will not be 

ensonified by HRG sources, such as in 

the Great South Channel and Georges 

Bank Shelf Break feeding biologically 

important area (BIA). Furthermore, the 

spatial acoustic footprint of the survey 

is very small relative to the spatial 

extent of the available foraging habitat. 

Finally, we have established a 500-m 

shutdown zone for North Atlantic right 

whales, which is more than twice as 

large as the greatest Level B harassment 

isopleth calculated for the specified 

activities for this IHA. 

Comment 2: Oceana commented that 

the IHA must include requirements for 

all vessels to maintain a separation 

distance of at least 500 m from North 

Atlantic right whales at all times. 

Response: NMFS agrees with Oceana 

and has stipulated in both the Federal 

Register notice of proposed IHA (86 FR 

30266; June 7, 2021) and this final IHA 

that survey vessels must maintain a 

separation distance of 500 m or greater 

from any sighted Endangered Species 

Act (ESA)-listed whale or other 

unidentified large marine mammals 

visible at the surface. 

Comment 3: The ENGOs 

recommended that NMFS incorporate 

additional data sources into calculations 

of marine mammal density and take and 

that NMFS must ensure all available 

data are used to ensure that any 

potential shifts in habitat usage by 

endangered and protected species and 

stocks are reflected in estimations of 

marine mammal density and take. The 

ENGOs asserted in general that the 

density models used by NMFS do not 

fully reflect the abundance, distribution, 

and density of marine mammals for the 

U.S. East Coast and therefore should not 

be the only information source relied 

upon when estimating take. The ENGOs 

note that NMFS did increase the 

number of Level B harassment takes of 

common dolphins based on the daily 

rate of observations of this species 

during surveys conducted under 

Vineyard Wind’s previous IHA, and the 

modification to the proposed Mayflower 

Wind IHA (May 20, 2021; 86 FR 27393). 

They note that NMFS compared density 

estimates derived from Mayflower 

Wind’s 2020 HRG survey PSO data with 

those derived from the Roberts et al. 

(2016, 2017, 2018, 2020) models, and 

that NMFS used the larger of the take 

estimates as the basis for the proposed 

number of takes. The ENGOs state that 

rather than relying solely on 

observations previously recorded by the 

specific project for which authorization 

is currently being sought, NMFS should 

collectively examine PSO data from 

survey activities by multiple offshore 

wind energy projects being conducted 

in regional proximity (e.g., off the coasts 

of Rhode Island and Massachusetts), as 

available, to inform the most 

conservative take estimate for each 

species and stock. 

Response: Habitat-based density 

models produced by the Duke 

University Marine Geospatial Ecology 


khammond on DSKJM1Z7X2PROD with NOTICES

I 
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40473 

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 North Atlantic right whales 

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 5 discrete 

regions. Model version nine for North 

Atlantic right whales—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 including 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 

and 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 Version 9 update to the 

North Atlantic right whale density 

model. 

As noted above, NMFS has 

determined that the Roberts et al. suite 

of density models represent the best 

available scientific information. 

However, NMFS acknowledges that 

there may be additional data that is not 

reflected in the models and/or that may 

inform our analyses, whether because 

the data were not available to the model 

authors or because the data is more 

recent than the latest model version for 

a specific taxon. Note there is now a 

Version 10 update to the North Atlantic 

right whale model which primarily 

focused on Massachusetts Bay, which 

does not overlap the project area and 

therefore, is not relevant to this IHA. 

However, Version 10 also included 

additional survey data in the ‘‘Hatteras 

Island to Nantucket Shoals’’ area (a 

portion of which does overlap the 

project area), which resulted in slightly 

higher densities in part of the project 

area south of Nantucket. While the 

difference in densities is very minor 

(0.0016/km2 for Version 9 and 0.0018/ 

km2 for Version 10), NMFS updated the 

take estimate for North Atlantic right 

whale in the final IHA to reflect the 

Version 10 update (see the Estimated 

Take section). A Version 11 model 

update is also available; however, that 

model update changed predictions in 

Cape Cod Bay only, which is outside of 

this project area. 

The ENGOs pointed to additional data 

that can be obtained from sightings 

databases, PAM efforts, satellite 

telemetry, aerial surveys, and 

autonomous vehicles. The ENGO’s 

pointed specifically to monthly 

standardized marine mammal aerial 

surveys flown in the Massachusetts and 

Rhode Island and Massachusetts Wind 

Energy Areas by the New England 

Aquarium from October 2018 through 

August 2019 and March 2020 through 

July 2021. The 2018–2019 New England 

Aquarium study showed North Atlantic 

right whales were primarily found to the 

east of the Project Area although, 

distribution changed seasonally, with 

one sighting of North Atlantic right 

whale in Lease area OSC–A 0501 in the 

spring, and no other sightings in 

Vineyard Wind 1’s lease area during 

other portions of the year. Limited 

numbers were found north of the Lease 

Area in the export cable corridor route 

occurring between Martha’s Vineyard 

and Nantucket heading to a landfall 

location in Falmouth, MA. Information 

on the results from the 2020–2021 aerial 

survey is currently unavailable. The 

commenters also referenced a study 

funded by the Bureau of Offshore 

Energy Management (BOEM) using an 

autonomous vehicle for real-time 

acoustical monitoring of marine 

mammals from December 2019 through 

March 2020 and again from December 

2020 through February 2021 on Cox 

Ledge, located approximately 35 miles 

east of Montauk Point, New York 

between Block Island and Martha’s 

Vineyard. Between December 21, 2020 

and March 30, 2020 (91 days) North 

Atlantic right whales were acoustically 

detected on 13 days and possibly 

detected on an additional 3 days. No 

North Atlantic right whales were 

detected in BOEM’s study area between 

March 25, 2021 and July 01, 2021 (98 

days). The data from these recent 

studies does not indicate that NMFS 

should employ seasonal restrictions or 

alter any of the required mitigation and 

monitoring requirements, particularly as 

NMFS considers impacts from these 

types of survey operations to be near de 

minimis and that Vineyard Wind 1 is 

already required to adhere to time and 

area seasonal restrictions. It would be 

difficult to draw any qualitative 

conclusions from these study results 

given that most of the observations and 

detections occurred in only small 

portions of Vineyard Wind 1’s Project 

Area. 

Regarding common dolphins, as noted 

by the ENGOs, given the number of 

common dolphins observed in the 

previous Vineyard Wind IHA 

(monitoring report available at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-vineyardwind-llc-marine-site-characterizationsurveys), observed group sizes, and the 

overlap between that project area and 

the planned project area for this IHA, 

NMFS expects that the density-based 

common dolphin take estimate 

generated for this IHA may be an 


khammond on DSKJM1Z7X2PROD with NOTICES
40474 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

underestimate, and proposed to 

authorize takes calculated based on the 

approximate daily rate of take 

calculated from data included in the 

monitoring report referenced above. 

NMFS determined this method was 

appropriate, in both the proposed IHA 

and this final IHA, given the large 

difference between the density-based 

estimate, and the data reported in the 

monitoring report referenced above. 

However, NMFS does not expect that 

such a calculation and comparison is 

necessary for all species in all offshore 

wind IHAs. NMFS agrees that 

consideration of PSO data from previous 

projects is important, but disagrees with 

the manner in which the data should be 

considered. Generally, NMFS has high 

confidence in the take estimates 

generated by the Roberts et al. models 

for the reasons stated above. In 

occasional instances where there is a 

large difference between the densitybased take estimate and previous 

monitoring data in the same area, NMFS 

agrees that the previous monitoring data 

requires more extensive consideration. 

However, in most cases, particularly for 

species that occur in smaller groups, the 

Roberts et al. models already generates 

a conservative take estimate, and given 

the variability in location, seasonality, 

duration among surveys, calculation of 

an alternate take estimate for purposes 

of comparison with the density-based 

estimate is generally unnecessary. This 

is proven through review of prior 

monitoring reports for the region, with 

the aforementioned assumption of 

common dolphins. 

NMFS will review other 

recommended data sources that become 

available 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 North Atlantic right whales, 

in U.S. Atlantic waters. 

While the ENGO’s referenced the 

additional data discussed above, no 

specific recommendations were made 

with regard to use of this information in 

informing the take estimates, other than 

that regarding the use of data from 

monitoring reports associated with 

previous IHAs. Rather, the commenters 

suggested that NMFS should ‘‘collate 

and integrate these and more recent data 

sets to more accurately reflect marine 

mammal presence for future IHAs and 

other work.’’ NMFS would welcome in 

the future constructive suggestions as to 

how these objectives might be more 

effectively accomplished. NMFS used 

the best scientific information available 

at the time the analyses for the proposed 

IHA was conducted, and has considered 

all available data, including sources 

referenced by the commenters, in 

reaching its determinations in support 

of issuance of the IHA requested by 

Vineyard Wind 1. 

Comment 4: The ENGOs state that 

NMFS proposes to estimate take based 

on annual mean density estimates for 

each species and stock. They assert that 

by averaging monthly density estimates 

across the entire year, the nuances of 

North Atlantic right whale migration, 

including the elevated density expected 

during the winter and spring months off 

Rhode Island and Massachusetts, 

remain unaccounted for. The 

commenters assert that this approach 

will likely lead to inaccurate take 

estimates and that this approach runs 

counter to how NMFS has approached 

calculating take in other recent 

authorizations. For example, in the 

modification of the proposed IHA for 

Mayflower Wind, LLC (May 20, 2021; 86 

FR 27393), the potential number of 

monthly takes were calculated by 

multiplying the monthly density for 

each species by the ensonified survey 

area for the corresponding month, and 

then summed to produce the total 

density-based calculated take. The 

commenters state that this approach 

more accurately captures variation in 

density across the year. The ENGOs ask 

NMFS to recalculate Level B harassment 

take in the proposed IHA to reflect the 

sum of monthly take estimates for the 

North Atlantic right whale, as well as 

other species. Further, the ENGOs 

reiterate the requests their groups have 

previously made that NMFS standardize 

its approach to take estimation and 

mitigation requirements across all 

authorizations related to offshore wind 

energy. 

Response: NMFS recognizes that the 

density of North Atlantic right whales, 

as well as other species, varies by 

month. In some cases, it is appropriate 

to calculate a monthly take estimate by 

multiplying the monthly density for a 

species by the respective monthly 

ensonified area, as was done in NMFS’ 

recent modified proposed IHA for 

Mayflower Wind, LLC (May 20, 2021; 86 

FR 27393). However, for this IHA, 

Vineyard Wind 1 does not know how 

much survey activity will occur in 

which months, other than the seasonal 

restrictions included in this IHA. 

Therefore, in order to conduct a parallel 

analysis to that included in the 

modified proposed Mayflower IHA, one 

would theoretically assume equal 

survey activity in each month, in which 

case the density-based take estimate 

would not change. Further, if one did 

attempt to consider the likelihood of 

less survey activity due to the seasonal 

restrictions in such a calculation, that 

would result in a less-conservative take 

estimate for North Atlantic right whales. 

Given the variability in proposed 

survey activities, and differences in 

available information sources for 

various projects, a standardized 

approach to take estimation would not 

always reflect the best available science, 

and therefore, NMFS does not use a 

standardized approach for all 

authorizations for offshore wind energy. 

NMFS considers the most appropriate 

approach to take estimation as well as 

the mitigation necessary to effect the 

least practicable adverse impact on the 

affected species or stocks on a case-bycase basis. 

Comment 5: Oceana asserted that 

NMFS must use the best available 

science for assessing North Atlantic 

right whale abundance estimates. They 

state that North Atlantic right whales 

have experienced significant declines in 

the last decade and that NMFS should 

use the most recent population estimate 

to support the IHA, which they state is 

the Pettis et al. (2020) estimate of 356 

North Atlantic right whales. They 

commented that this estimate is nearly 

14 percent lower than the estimate 

NMFS used in the analysis to support 

previous IHAs for Vineyard Wind. 

Response: NMFS agrees that the best 

available science should be used for 

assessing North Atlantic right whale 

abundance estimates in the IHA, but 

disagrees that the Pettis et al. (2020) 

study represents the most recent and 

best available estimate for North 

Atlantic right whale abundance. Rather 

the revised abundance estimate 

published by Pace (2021), which was 

used in the proposed IHA, provides the 

most recent and best available estimate, 

and suggests improvements to the 

model currently used to estimate North 

Atlantic right whale abundance. 

Specifically, Pace (2021) looked at a 

different way of characterizing annual 

estimates of age-specific survival. The 

results strengthened the case for a 

change in mean survival rates after 

2010–2011, but did not significantly 

change other current estimates 

(population size, number of new 

animals, adult female survival) derived 

from the model. The estimate reported 

by Pace (2021) and used in the Federal 

Register notice of proposed IHA (86 FR 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40475 

30266; June 7, 2021) and in this final 

IHA is 368 (95% CI 356–378) whales. Of 

note, the estimate proposed by Pettis et 

al. (2020) of 356 right whales is only 

three percent, not 14 percent, lower 

than this newly available estimate, 

which NMFS has determined is the 

most appropriate estimate to use. 

Comment 6: The ENGOs 

recommended that NMFS require the 

implementation of seasonal restrictions 

on site characterization activities that 

have the potential to injure or harass the 

North Atlantic right whales from 

December 1, 2021 through April 30, 

2022. The ENGOs further note 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: NMFS is concerned about 

the status of the North Atlantic right 

whale, given that a UME has been in 

effect for this species since June of 2017 

and that there have been a number of 

recent mortalities. NMFS appreciates 

the value of seasonal restrictions under 

some circumstances. However, in this 

case, we have determined additional 

seasonal restrictions are not warranted 

since NMFS considers impacts from 

these types of survey operations to be 

near de minimis. In particular, and as 

detailed in the notice of proposed IHA, 

the available evidence supports a 

conclusion that no injury to right 

whales (or any species) is likely to occur 

as a result of the proposed activity, 

regardless of mitigation. 

NMFS, however, is requiring 

Vineyard Wind 1 to operate no more 

than three concurrent HRG survey 

vessels, with HRG survey equipment 

operating at or below 180 kHz, from 

January through April within the lease 

area or export cable corridor, not 

including coastal and bay waters. NMFS 

is also requiring Vineyard Wind 1 to 

comply with restrictions associated with 

identified seasonal management areas 

(SMAs) and with dynamic management 

areas (DMAs) and Slow Zones, if any are 

established near the project area. 

Furthermore, we have established a 500- 

m shutdown zone for North Atlantic 

right whales, which is more than twice 

as large as the greatest Level B 

harassment isopleth calculated for the 

specified activities for this IHA (178 m). 

Take estimation conservatively assumes 

that these acoustic sources will operate 

on all survey days although it is 

probable that Vineyard Wind 1 will only 

use boomers on a subset of survey days, 

and on the remaining days utilize HRG 

equipment with smaller Level B 

harassment isopleths and overall less 

potential to cause disturbance. 

Therefore, the number of Level B 

harassment takes is likely an 

overestimate. Finally, significantly 

shortening Vineyard Wind 1’s work 

season is impracticable given the 

number of survey days planned for the 

specified activity for this IHA. 

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 (RL; 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. The 2018 

Technical Guidance is available at 

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

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance. 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, and a right whale 

would need to approach within 1 meter 

of the source to potentially incur PTS 

from the largest source. 

Comment 7: Oceana suggested that 

NMFS should fully consider both the 

use of the area and the effects of both 

acute and chronic stressors on the 

health and fitness of North Atlantic 

right whales. Oceana states that chronic 

stressors are an emerging concern for 

North Atlantic right whale conservation 

and recovery and that a recent peerreviewed study suggests that a range of 

stresses on North Atlantic right whales 

have stunted growth rates (Stewart et 

al., 2021). Oceana asserted that 

disruptive site characterization 

activities may do more than startle or 

spook North Atlantic right whales in 

this area and may cause chronic stress 

to the whales or cause the whales to 

seek other feeding areas at great 

energetic cost, decreasing their fitness, 

body condition and ability to 

successfully feed, socialize and mate. 

Response: NMFS agrees with Oceana 

that both acute and chronic stressors are 

of concern for North Atlantic right 

whale conservation and recovery. We 

recognize that acute stress from acoustic 

exposure is one potential impact of 

these surveys, and that chronic stress 

can have fitness, reproductive, etc. 

impacts at the population-level scale. 

NMFS has carefully reviewed the best 

available scientific information in 

assessing impacts to marine mammals, 

and recognizes that the surveys have the 

potential to impact marine mammals 

through behavioral effects, stress 

responses, and auditory masking. 

However, NMFS does not expect that 

the generally short-term, intermittent, 

and transitory marine site 

characterization survey activities would 

create conditions of acute or chronic 

acoustic exposure leading to long-term 

physiological stress responses in marine 

mammals. NMFS has also prescribed a 

robust suite of mitigation measures, 

such as time-area limitations and 

extended distance shutdowns for certain 

species that are expected to further 

reduce the duration and intensity of 

acoustic exposure, while limiting the 

potential severity of any possible 

behavioral disruption. The potential for 

chronic stress was evaluated in making 

the determinations presented in NMFS’s 

negligible impact analyses. 

Comment 8: Oceana asserted that 

NMFS must fully consider the discrete 

effects of each activity and the 

cumulative effects of the suite of 

approved, proposed and potential 

activities on marine mammals and 

North Atlantic right whales in particular 

and ensure that the cumulative effects 

are not excessive before issuing or 

renewing an IHA. They noted that this 

was specifically important given the 

large number of offshore wind-related 

activities being considered in the 

northeast region. 

Response: Neither the MMPA nor 

NMFS’ codified implementing 

regulations call for consideration of 

other unrelated activities and their 

impacts on populations. The preamble 

for NMFS’ implementing regulations (54 

FR 40338; September 29, 1989) states in 

response to comments that the impacts 

from other past and ongoing 

anthropogenic activities are to be 

incorporated into the negligible impact 

analysis via their impacts on the 

baseline. Consistent with that direction, 

NMFS has factored into its negligible 

impact analysis the impacts of other 

past and ongoing anthropogenic 

activities via their impacts on the 

baseline, e.g., as reflected in the density/ 

distribution and status of the species, 

population size and growth rate, and 

other relevant stressors. The 1989 

implementing regulations also 

addressed public comments regarding 

cumulative effects from future, 

unrelated activities. There NMFS stated 

that such effects are not considered in 


khammond on DSKJM1Z7X2PROD with NOTICES
40476 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

making findings under section 101(a)(5) 

concerning negligible impact. In this 

case, both this IHA, as well as other 

IHAs currently in effect or proposed 

within the specified geographic region, 

are appropriately considered an 

unrelated activity relative to the others. 

The IHAs are unrelated in the sense that 

they are discrete actions under section 

101(a)(5)(D), issued to discrete 

applicants. 

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

requires NMFS to make a determination 

that the take incidental to a ‘‘specified 

activity’’ will have a negligible impact 

on the affected species or stocks of 

marine mammals. NMFS’ implementing 

regulations require applicants to include 

in their request a detailed description of 

the specified activity or class of 

activities that can be expected to result 

in incidental taking of marine mammals. 

50 CFR 216.104(a)(1). Thus, the 

‘‘specified activity’’ for which incidental 

take coverage is being sought under 

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

and described by the applicant. Here, 

Vineyard Wind 1 was the applicant for 

the IHA, and we are responding to the 

specified activity as described in that 

application (and making the necessary 

findings on that basis). Through the 

response to public comments in the 

1989 implementing regulations, we also 

indicated (1) that NMFS would consider 

cumulative effects that are reasonably 

foreseeable when preparing a NEPA 

analysis, and (2) that reasonably 

foreseeable cumulative effects would 

also be considered under section 7 of 

the ESA for ESA-listed species. In this 

case, cumulative impacts have been 

adequately addressed under NEPA in 

prior environmental analyses that form 

the basis for NMFS’ determination that 

this action is appropriately categorically 

excluded from further NEPA analysis. 

NMFS has previously written 

Environmental Assessments (EA) that 

addressed cumulative impacts related to 

substantially similar activities, in 

similar locations, e.g., 2019 ;rsted EA 

for survey activities offshore southern 

New England; 2019 Avangrid EA for 

survey activities offshore North Carolina 

and Virginia; 2018 Deepwater Wind EA 

for survey activities offshore Delaware, 

Massachusetts, and Rhode Island. 

Separately, cumulative effects have been 

analyzed as required through NMFS’ 

required intra-agency consultation 

under section 7 of the ESA for 

substantially similar activities, in 

similar locations (e.g., the 2013 

programmatic Biological Opinion for 

BOEM Lease and Site Assessment 

Rhode Island, Massachusetts, New York, 

and New Jersey Wind Energy Areas, and 

the programmatic consultation 

completed by NMFS Greater Atlantic 

Regional Fisheries Office (GARFO) on 

June 29, 2021), under which GARFO has 

determined multiple times that NMFS’ 

action of issuing IHAs is not likely to 

adversely affect listed marine mammals 

or their critical habitat. 

Comment 9: The ENGO’s noted that 

harbor porpoises are particularly 

sensitive to noise, and, therefore, 

impacts to this species must be 

minimized and mitigated to the full 

extent practicable during offshore wind 

siting and development activities in the 

waters off the coast of Massachusetts 

and Rhode Island where this species 

regularly occurs. 

Response: Harbor porpoises are 

classified as high-frequency cetaceans 

(NMFS, 2018) and are the hearing group 

with the lowest PTS onset thresholds, 

with maximum susceptibility to 

frequencies between 20 and 40 kHz 

(susceptibility decreases with outside 

this frequency range). However, the 

largest modeled distance to the Level A 

harassment threshold for any impulsive 

source for HF cetaceans was 53 m. Level 

A harassment would also be more likely 

to occur at close approach to the sound 

source or as a result of longer duration 

exposure to the sound source, and 

mitigation measures—including a 100 m 

exclusion zone (EZ) for harbor 

porpoises—are expected to minimize 

the potential for close approach or 

longer duration exposure to active HRG 

sources. In addition, harbor porpoises 

are known to be behaviorally sensitive 

species, in that they respond to 

comparatively lower RLs and are known 

to avoid vessels and other sound 

sources and, therefore, harbor porpoises 

would also be expected to avoid a sound 

source prior to that source reaching a 

level that would result in injury (Level 

A harassment). Therefore, NMFS has 

determined that take of harbor porpoises 

or any other animal by Level A 

harassment is unlikely to occur and has 

not authorized any such takes. Any 

takes by Level B harassment are 

anticipated to be limited to brief 

startling reactions and/or temporary 

avoidance of the project area. Further, 

appropriate mitigation measures have 

been included to ensure the least 

practicable adverse impact on harbor 

porpoises and other marine mammal 

species, and no harbor porpoises were 

observed by Vineyard Wind in their 

2020–2021 year of survey activities 

according to their preliminary 

monitoring report (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-vineyardwind-llc-marine-site-characterizationsurveys). 

Comment 10: The ENGOs 

recommended that geophysical surveys 

commence, with ramp up, only during 

daylight hours and periods of good 

visibility to maximize the probability 

that marine mammals are detected and 

confirmed clear of the exclusion zone 

before activities begin. If the activities 

are halted or delayed because of 

documented or suspected North 

Atlantic right whale presence in the 

area, the ENGOs recommend that NMFS 

should require Vineyard Wind 1 to wait 

until daylight hours and good visibility 

conditions to recommence survey 

activities. 

Response: NMFS acknowledges the 

limitations inherent in detection of 

marine mammals at night. However, no 

injury is expected to result even in the 

absence of mitigation, given the 

characteristics of the sources planned 

for use (supported by the very small 

estimated Level A harassment zones; 

i.e., <53 m for all impulsive sources). 

The ENGOs do not provide any support 

for the apparent contention that injury 

is a potential outcome of these 

activities. Regarding Level B 

harassment, any potential impacts 

would be limited to short-term 

behavioral responses, as described in 

greater detail herein. The commenters 

establish that the status of North 

Atlantic right whales in particular is 

precarious. NMFS agrees in general with 

the discussion of this status provided by 

the commenters. Note that NMFS 

considers impacts from this category of 

survey operations to be near de minimis, 

with the potential for Level A 

harassment for any species to be 

discountable and the severity of Level B 

harassment (and, therefore, the impacts 

of the take event on the affected 

individual), if any, to be low. 

Commenters provide no evidence to the 

contrary. NMFS is also requiring 

Vineyard Wind 1 to employ a PSO 

during nighttime hours who must have 

access to night-vision equipment (i.e., 

night-vision goggles and/or infrared 

technology). Given these factors, NMFS 

has determined that more restrictive 

mitigation requirements are not 

warranted. 

Restricting surveys in the manner 

suggested by the commenters may 

reduce marine mammal exposures by 

some degree in the short term, but 

would not result in any significant 

reduction in either intensity or duration 

of noise exposure. Vessels would also 

potentially be on the water for an 

extended time introducing noise into 

the marine environment. The 

restrictions recommended by the 

commenters could result in the surveys 

spending increased time on the water, 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40477 

which may result in greater overall 

exposure to sound for marine mammals; 

thus the commenters have not 

demonstrated that such a requirement 

would result in a net benefit. 

Furthermore, restricting the ability of 

the applicant to begin operations only 

during daylight hours would have the 

potential to result in lengthy shutdowns 

of the survey equipment, which could 

result in the applicant failing to collect 

the data they have determined is 

necessary and, subsequently, the need 

to conduct additional surveys in the 

future. This would result in 

significantly increased costs incurred by 

the applicant. Thus the restriction 

suggested by the commenters would not 

be practicable for the applicant to 

implement. In consideration of the 

likely effects of the activity on marine 

mammals absent mitigation, potential 

unintended consequences of the 

measures as proposed by the 

commenters, and practicability of the 

recommended measures for the 

applicant, NMFS has determined that 

restricting operations as recommended 

is not warranted or practicable in this 

case. 

Comment 11: The ENGOs noted that 

NMFS states that shutdown, pre-start 

clearance, and ramp-up procedures are 

not required during HRG survey 

operations using only non-impulsive 

sources (e.g., USBL and parametric subbottom profilers) other than nonparametric sub-bottom profilers (e.g., 

CHIRPs), and also that pre-clearance 

and ramp-up, but not shutdown, are 

required when using non-impulsive, 

non-parametric sub-bottom profilers. 

The ENGOs stated that NMFS should 

provide a detailed rationale for these 

requirements in the proposed IHA so 

they can be more easily understood and 

evaluated by the public. 

Response: As noted in the Detailed 

Description of Specific Activity section 

of the notice of the proposed IHA (86 FR 

30266; June 7, 2021), NMFS does not 

expect that sources planned for use by 

Vineyard Wind 1, other than the 

shallow penetration sub-bottom 

profilers (SBP; Chirps) and medium 

penetration SBPs (Boomers and 

Sparkers), will result in take of marine 

mammals, regardless of mitigation. As 

stated in that section, operation of the 

following survey equipment types is not 

reasonably expected to present risk of 

marine mammal take for the reasons 

provided below: 

• Parametric SBPs, also called 

sediment echosounders, for providing 

high data density in sub-bottom 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 

mounted on the hull of the vessel or 

from a side 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 the equipment transponder (or 

beacon) necessary to produce the 

acoustic profile. It is a two-component 

system with a hull or pole mounted 

transceiver and one or several 

transponders either on the seabed or on 

the equipment. USBLs are expected to 

produce extremely small acoustic 

propagation distances in their typical 

operating configuration; 

• Single beam and Multibeam 

Echosounders (MBESs) to determine 

water depths and general bottom 

topography. The proposed single beam 

and MBES all have operating 

frequencies >180 kHz and are therefore 

outside the general hearing range of 

marine mammals; 

• Side-scan Sonar (SSS) is 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; and 

• Magnetometer/Gradiometer has an 

operating frequency >180 kHz and is 

therefore outside the general hearing 

range of marine mammals. 

Therefore, it is not necessary to 

implement shutdown, pre-start 

clearance, and ramp-up procedures 

during the use of those other sources in 

order to mitigate impacts to marine 

mammals from those sources, as none 

are expected. Additionally, shutdown is 

not required during use of nonimpulsive, non-parametric sub-bottom 

profilers given the very small Level B 

harassment zones expected from use of 

those sources (4.3 m for the EdgeTech 

Chirp 216 planned for use by Vineyard 

Wind 1). However, we note that 

Vineyard Wind 1 is still required to 

implement the vessel strike avoidance 

measures during use of these sources. 

Comment 12: Oceana recommended 

that when HRG surveys are safe to 

resume after a shutdown event, the 

surveys should be required to use a 

ramp-up procedure to encourage any 

nearby marine life to leave the area. 

Response: NMFS agrees with this 

recommendation and included in the 

Federal Register notice of the proposed 

IHA (86 FR 30266, June 7, 2021) and 

this final IHA a stipulation that when 

technically feasible, survey equipment 

must be ramped up at the start or restart 

of survey activities. Ramp-up must 

begin with the power of the smallest 

acoustic equipment at its lowest 

practical power output appropriate for 

the survey. When technically feasible 

the power must then be gradually 

turned up and other acoustic sources 

added in a way such that the source 

level would increase gradually. 

Comment 13: Based on the assertion 

that the 160 dB threshold for behavioral 

harassment is not supported by best 

available scientific information and 

grossly underestimates Level B 

harassment take, the ENGOs 

recommended that NMFS establish an 

EZ of 1,000 m around each vessel 

conducting activities with noise levels 

that they assert could result in injury or 

harassment to North Atlantic right 

whales, and a minimum EZ of 500 m for 

all other large whale species and 

strategic stocks of small cetaceans. 

Oceana recommended a 1,000 m 

exclusion zone for North Atlantic right 

whales also. The ENGOs further noted 

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 lowfrequency cetaceans. 

Response: NMFS disagrees with this 

recommendation and the assertion that 

the 160 dB threshold for behavioral 

harassment grossly underestimates take 

by Level B harassment. NMFS 

acknowledges that the potential for 

behavioral response to an anthropogenic 

source is highly variable and contextspecific and acknowledges the potential 

for Level B harassment at exposures to 

RLs below 160 dB rms. Alternatively, 

NMFS acknowledges the potential that 

not all animals exposed to RLs above 

160 dB rms will respond in ways 

constituting behavioral harassment. 

There are a variety of studies indicating 

that contextual variables play a very 

important role in response to 

anthropogenic noise, and the severity of 

effects are not necessarily linear when 

compared to a RL. The commenters 

cited several studies (Nowacek et al., 

2004; Kastelein et al., 2012 and 2015; 

Gomez et al., 2016; Tyack & Thomas, 

2019) that showed there were behavioral 

responses to sources below the 160 dB 

threshold, but also acknowledge the 

importance of context in these 

responses. For example, Nowacek et al., 


khammond on DSKJM1Z7X2PROD with NOTICES
40478 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

2004 reported the behavior of five out of 

six North Atlantic right whales was 

disrupted at RLs of only 133–148 dB re 

1 mPa (returning to normal behavior 

within minutes) when exposed to an 

alert signal. However, the authors also 

reported that none of the whales 

responded to noise from transiting 

vessels or playbacks of ship noise even 

though the RLs were at least as strong, 

and contained similar frequencies, to 

those of the alert signal. The authors 

state that a possible explanation for why 

whales responded to the alert signal and 

did not respond to vessel noise is that 

the whales may have been habituated to 

vessel noise, while the alert signal was 

a novel sound. In addition, the authors 

noted differences between the 

characteristics of the vessel noise and 

alert signal which may also have played 

a part in the differences in responses to 

the two noise types. Therefore, it was 

concluded that the signal itself, as 

opposed to the RL, was responsible for 

the response. DeRuiter et al. (2013) also 

indicate that variability of responses to 

acoustic stimuli depends not only on 

the species receiving the sound and the 

sound source, but also on the social, 

behavioral, or environmental contexts of 

exposure. Finally, Gong et al. (2014) 

highlighted that behavioral responses 

depend on many contextual factors, 

including range to source, RL above 

background noise, novelty of the signal, 

and differences in behavioral state. 

Similarly, Kastelein et al., 2015 (cited in 

the letter) examined behavioral 

responses of a harbor porpoise to sonar 

signals in a quiet pool, but stated 

behavioral responses of harbor 

porpoises at sea would vary with 

context such as social situation, sound 

propagation, and background noise 

levels. 

NMFS uses 160 dB (rms) as the 

exposure level for estimating Level B 

harassment takes, while acknowledging 

that the 160 dB rms step-function 

approach is a simplistic approach. The 

commenters suggested that our use of 

the 160-dB threshold implies that we do 

not recognize the science indicating that 

animals may react in ways constituting 

behavioral harassment when exposed to 

lower RLs. However, we do recognize 

the potential for Level B harassment at 

exposures to RLs below 160 dB rms, in 

addition to the potential that animals 

exposed to RLs above 160 dB rms will 

not respond in ways constituting 

behavioral harassment (e.g., Malme et 

al., 1983, 1984, 1985, 1988; McCauley et 

al., 1998, 2000a, 2000b; Barkaszi et al., 

2012; Stone, 2015a; Gailey et al., 2016; 

Barkaszi and Kelly, 2018). These 

comments appear to evidence a 

misconception regarding the concept of 

the 160-dB threshold. While it is correct 

that in practice it works as a stepfunction, i.e., animals exposed to 

received levels above the threshold are 

considered to be ‘‘taken’’ and those 

exposed to levels below the threshold 

are not, it is in fact intended as a sort 

of mid-point of likely behavioral 

responses (which are extremely 

complex depending on many factors 

including species, noise source, 

individual experience, and behavioral 

context). What this means is that, 

conceptually, the function recognizes 

that some animals exposed to levels 

below the threshold will in fact react in 

ways that are appropriately considered 

take, while others that are exposed to 

levels above the threshold will not. Use 

of the 160-dB threshold allows for a 

simplistic quantitative estimate of take, 

while we can qualitatively address the 

variation in responses across different 

received levels in our discussion and 

analysis. 

Overall, we emphasize the lack of 

scientific consensus regarding what 

criteria might be more appropriate. 

Defining sound levels that disrupt 

behavioral patterns is difficult because 

responses depend on the context in 

which the animal receives the sound, 

including an animal’s behavioral mode 

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

resting, or migrating), prior experience, 

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

Other contextual factors, such as signal 

characteristics, distance from the 

source, and signal to noise ratio, may 

also help determine response to a given 

received level of sound. Therefore, 

levels at which responses occur are not 

necessarily consistent and can be 

difficult to predict (Southall et al., 2007; 

Ellison et al., 2012; Bain and Williams, 

2006). Even experts have not previously 

been able to suggest specific new 

criteria due to these difficulties (e.g., 

Southall et al. 2007; Gomez et al., 2016). 

Further, we note that the sound sources 

and the equipment used in the specified 

activities are outside (higher than) the 

most sensitive range of mysticete 

hearing. 

There is currently no agreement on 

these complex issues, and NMFS 

followed the practice at the time of 

submission and review of this analysis 

in assessing the likelihood of disruption 

of behavioral patterns by using the 160 

dB threshold. This threshold has 

remained in use in part because of the 

practical need to use a relatively simple 

threshold based on available 

information that is both predictable and 

measurable for most activities. We note 

that the seminal review presented by 

Southall et al. (2007) did not suggest 

any specific new criteria due to lack of 

convergence in the data. NMFS is 

currently evaluating available 

information towards development of 

guidance for assessing the effects of 

anthropogenic sound on marine 

mammal behavior, such as a doseresponse curve presented by Tyack and 

Thomas (2017) and referenced by the 

commenters. However, undertaking a 

process to derive defensible exposureresponse relationships is complex (e.g., 

NMFS previously attempted such an 

approach, but is currently re-evaluating 

the approach based on input collected 

during peer review of NMFS (2016)). A 

recent systematic review by Gomez et 

al. (2016) referenced by the commenters 

was unable to derive criteria expressing 

these types of exposure-response 

relationships based on currently 

available data. 

NMFS acknowledges that there may 

be methods of assessing likely 

behavioral response to acoustic stimuli 

that better capture the variation and 

context-dependency of those responses 

than the simple 160 dB step-function 

used here, and that an approach 

reflecting a more complex probabilistic 

function may more effectively represent 

the known variation in responses at 

different levels due to differences in the 

receivers, the context of the exposure, 

and other factors. However, there is no 

agreement on what that method should 

be or how more complicated methods 

may be implemented by applicants. 

NMFS is committed to continuing its 

work in developing updated guidance 

with regard to acoustic thresholds, but 

pending additional consideration and 

process is reliant upon an established 

threshold that is reasonably reflective of 

available science. 

Regarding the shutdown zone 

recommendation, we note that the 500- 

m EZ for North Atlantic right whales 

exceeds the modeled distance to the 

largest 160-dB Level B harassment 

isopleth distance (178 m) by a 

substantial margin. Given that 

calculated Level B harassment isopleths 

are likely conservative, and NMFS 

considers impacts from HRG survey 

activities to be near de minimis, a 100- 

m shutdown for other marine mammal 

species (including large whales and 

strategic stocks of small cetaceans) is 

sufficiently protective to effect the least 

practicable adverse impact on those 

species and stocks. Further, no injury is 

expected to result even in the absence 

of mitigation, given the characteristics 

of the sources planned for use 

(supported by the very small estimated 

Level A harassment zones; i.e., <53 m 

for all impulsive sources). 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40479 

Comment 14: Oceana recommended 

that a shutdown of HRG equipment be 

required should a North Atlantic right 

whale or other protected species enter 

an EZ, unless necessary for human 

safety. They further recommended that 

if and when such an exemption occurs 

the project must immediately notify 

NMFS with reasons and explanation for 

exemption and a summary of the 

frequency of these exceptions must be 

publicly available to ensure that these 

are the exception rather than the norm 

for the project. 

Response: There are several shutdown 

requirements described in the Federal 

Register notice of the proposed IHA (86 

FR 30266, June 7, 2021), and which are 

included in this final IHA, including the 

stipulation that geophysical survey 

equipment must be immediately shut 

down if any marine mammal is 

observed within or entering the relevant 

EZs while geophysical survey 

equipment is operational. There is no 

exemption for human safety and it is 

unclear what exemption the commenter 

is referring to. In regards to reporting, 

Vineyard Wind 1 must notify NMFS if 

a North Atlantic right whale is observed 

at any time by any project vessels 

during surveys or during vessel transit. 

Additionally, Vineyard Wind 1 is 

required to report the relevant survey 

activity information, such as such as the 

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.) as well as the estimated distance to 

an animal and its heading relative to the 

survey vessel at the initial sighting and 

survey activity information. As 

documented in Vineyard Wind’s 

preliminary monitoring report for the 

surveys completed under the previous 

2020–2021 IHA (report available on our 

website at https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-vineyardwind-llc-marine-site-characterizationsurveys), except for excepted instances 

of voluntary approaches by delphinids, 

there were no instances where marine 

mammals were observed within the 

required shutdown zone and shutdown 

procedures were not implemented. If a 

right whale is detected within the EZ 

before a shutdown is implemented, the 

right whale and its distance from the 

sound source, including whether it is 

within the Level B or Level A 

harassment zones, would be reported in 

Vineyard Wind 1’s final monitoring 

report and made publicly available on 

NMFS’ website. Vineyard Wind 1 is 

required to immediately notify NMFS of 

any sightings of North Atlantic right 

whales and report upon survey activity 

information. 

Comment 15: The ENGOs 

recommended that passive acoustic 

monitoring (PAM) operators for this and 

future wind development projects 

should be part of a migratory corridorwide network of passive acoustic 

monitors organized by NOAA and 

BOEM in collaboration with state 

governments as well as private, 

academic, and non-profit partners. They 

also recommended that NMFS should 

also advance a robust and effective near 

real-time monitoring and mitigation 

system for North Atlantic right whales 

and other endangered and protected 

species that will be more responsive to 

the ongoing dynamic species 

distributional shifts resulting from 

climate change, as well as provide more 

flexibility to developers. 

Response: NMFS is generally 

supportive of these concepts. A network 

of near real-time baleen whale 

monitoring devices are active or have 

been tested in portions of New England 

and Canadian waters. These systems 

employ various digital acoustic 

monitoring instruments 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. 

In 2020, NMFS convened a workshop to 

address objectives related to monitoring 

North Atlantic right whales. The NMFS 

publication ‘‘Technical Memorandum 

NMFS-OPR-64: North Atlantic Right 

Whale Monitoring and Surveillance: 

Report and Recommendations of the 

National Marine Fisheries Service’s 

Expert Working Group’’, available at: 

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

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

summarizes information from the 

workshop and presents the Expert 

Working Group’s recommendations for a 

comprehensive monitoring strategy to 

guide future analyses and data 

collection. Among the numerous 

recommendations found in the report, 

the Expert Working Group encouraged 

the widespread deployment of autobuoys to provide near real-time 

detections of North Atlantic right whale 

calls that visual survey teams can then 

respond to for collection of 

identification photographs or biological 

samples. 

In regards to the current IHA, NMFS 

cannot require Vineyard Wind 1 to be a 

part of such monitoring networks until 

such a network of monitoring devices is 

formalized. However, NMFS will 

consider implementing such measures 

in the future should such a network be 

developed. 

Comment 16: The ENGOs stated that 

it is their general view that NMFS must 

require a minimum of four PSOs 

following a two-on, two-off rotation, 

each responsible for scanning no more 

than 180° of the horizon. However, the 

ENGOs further stated that they strongly 

support Vineyard Wind 1’s proposal to 

use PAM during nighttime HRG 

surveys, and recognize that in this case, 

a requirement to employ two PSOs 

during all nighttime survey operations 

is impracticable, given the limited 

availability of berths on the survey 

vessels and additional personnel 

required to conduct PAM. The ENGOs 

state that making this PSO requirement 

clear to IHA applicants will allow any 

logistical considerations to be addressed 

early in the survey planning process. In 

a related comment, Oceana 

recommended that all vessels associated 

with the proposed Vineyard Wind 1 site 

characterization should be required to 

carry and use PSOs at all times when 

underway. The ENGOs and Oceana 

recommend that NMFS require the use 

of infrared equipment during periods of 

darkness and during daylight hours to 

help maximize probability of detection 

of marine mammals. 

Response: NMFS typically requires 

that a single PSO must be stationed at 

the highest vantage point and engaged 

in general 360-degree scanning during 

daylight hours. Although NMFS 

acknowledges that the single PSO 

cannot reasonably maintain observation 

of the entire 360-degree area around the 

vessel, it is reasonable to assume that 

the single PSO engaged in continual 

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

m EZ, which is greater than the 

maximum 178-m harassment zone) will 

be successful in detecting marine 

mammals that are available for detection 

at the surface. Further, as noted by the 

commenters, and in the notice of the 

proposed IHA (86 FR 30266; June 7, 

2021), a requirement to employ at least 

two PSOs during all nighttime survey 

operations is impracticable, given the 

limited available berths on the survey 

vessels and the additional personnel 

Vineyard Wind has conducting PAM. 

(As noted below, Vineyard Wind 1 

plans to conduct PAM, though it is not 

required by this IHA given NMFS 

concerns with efficacy, as described in 

NMFS’ response to the following 

comment). NMFS makes a concerted 

effort to communicate mitigation and 

monitoring requirements to applicants 

as early in the application process as 


khammond on DSKJM1Z7X2PROD with NOTICES
40480 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

possible. NMFS has analyzed the 

potential for incidental take resulting 

from Vineyard Wind 1’s activity and has 

determined that based on the nature of 

the activities, and in consideration of 

the mitigation measures included in the 

IHA, the potential for incidental take 

when HRG survey equipment is not 

operational is so low as to be 

discountable. 

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. Nevertheless, as night vision 

technology has continued to improve, 

NMFS has adapted its practice. NMFS 

has included a requirement in the 

proposed IHA and this final IHA that 

night-vision equipment (i.e., nightvision goggles and/or infrared 

technology) must be available for use 

during nighttime monitoring. Under the 

issued IHA, survey operators are not 

required to provide PSOs with infrared 

devices during the day but observers are 

not prohibited from employing them. 

Given that use of infrared devices for 

detecting marine mammals during the 

day has been shown to be helpful under 

certain conditions, NMFS will consider 

requiring them to be made accessible for 

daytime PSOs in the future as more 

information becomes available regarding 

this technology. NMFS is also requiring 

that all PSOs be equipped with 

binoculars and have the ability to 

estimate distances to marine mammals 

located in proximity to the vessel and/ 

or EZs. We have determined that the 

PSO requirements in the IHA are 

sufficient to ensure the least practicable 

adverse impact on the affected species 

or stocks and their habitat. 

Comment 17: The ENGOs noted that 

the proposed IHA does not require 

monitoring of a ‘‘buffer zone’’ or 

‘‘monitoring zone’’ that were required 

by NMFS in the recent proposed 

Renewal IHA for Vineyard Wind (86 FR 

30435; June 8, 2021). The commenters 

state that NMFS should explain why the 

requirements are inconsistent and less 

stringent monitoring is required in the 

Vineyard Wind 1 proposed IHA. 

Response: This IHA does not 

explicitly state a specific ‘‘buffer zone’’ 

or ‘‘monitoring zone’’ that PSOs must 

monitor, as included in some previous 

IHAs such as the proposed Renewal IHA 

mentioned by the commenter (86 FR 

30435; June 8, 2021). As stated 

previously in this notice, NMFS 

considers impacts from these types of 

survey operations to be near de minimis, 

and therefore, use of a buffer zone is 

unnecessary. Further, NMFS did not 

include this requirement in the IHA so 

as not to suggest that PSOs should limit 

their observations to just a specific 

‘‘buffer’’ or ‘‘monitoring’’ zone. Rather, 

NMFS expects PSOs to report all marine 

mammal observations to the farthest 

extent that they are able to observe. 

Therefore, not including a specific 

‘‘buffer’’ or ‘‘monitoring’’ zone does not 

result in less stringent monitoring 

requirements. 

Comment 18: Oceana stated that the 

IHA must include a requirement for all 

phases of the Vineyard Wind 1 site 

characterization to subscribe to the 

highest level of transparency, including 

frequent reporting to federal agencies, 

requirements to report all visual and 

acoustic detections of North Atlantic 

right whales and any dead, injured, or 

entangled marine mammals to NMFS or 

the Coast Guard as soon as possible and 

no later than the end of the PSO shift. 

Oceana states that to foster stakeholder 

relationships and allow public 

engagement and oversight of the 

permitting, the IHA should require all 

reports and data to be accessible on a 

publicly available website. 

Response: NMFS agrees with the need 

for reporting and indeed, the MMPA 

calls for IHAs to incorporate reporting 

requirements. As included in the 

proposed IHA, the final IHA includes 

requirements for reporting that supports 

Oceana’s recommendations. Vineyard 

Wind 1 is required to submit a 

monitoring report to NMFS within 90 

days after completion of survey 

activities that fully documents the 

methods and monitoring protocols, 

summarizes the data recorded during 

monitoring, and describes, assesses and 

compares the effectiveness of 

monitoring and mitigation measures. 

PSO datasheets or raw sightings data 

must also be provided with the draft 

and final monitoring report. Further the 

draft IHA and final IHA stipulate that if 

a North Atlantic right whale is observed 

at any time by any project vessels, 

during surveys or during vessel transit, 

Vineyard Wind 1 must immediately 

report sighting information to the NMFS 

North Atlantic Right Whale Sighting 

Advisory System and to the U.S. Coast 

Guard, and that any discoveries of 

injured or dead marine mammals be 

reported by Vineyard Wind 1 to the 

Office of Protected Resources, NMFS, 

and to the New England/Mid-Atlantic 

Regional Stranding Coordinator as soon 

as feasible. All reports and associated 

data submitted to NMFS are included 

on the project website for public 

inspection. 

Comment 19: The ENGOs raised 

concerns regarding the ability of PSOs 

to effectively detect marine mammals, 

and state that PSOs alone are certain to 

underestimate the total number of large 

whales in the mitigation area based on 

sea state, and state that visual 

monitoring alone is insufficient. They 

state that the concern NMFS raises 

regarding PAM that relates to the 

masking that would occur from vessel 

noise and flow noise are entirely 

surmountable. They state that the 

passive acoustic protocol can and 

should be designed so the hydrophone 

is not masked by vessel or survey noise 

and NMFS should make this explicit in 

the Final IHA for Vineyard Wind 1. 

They further state that NMFS should 

require PAM at all times to maximize 

the probability of detection for North 

Atlantic right whales and, ideally, other 

endangered and protected species and 

stocks, including during periods of fog, 

precipitation, and high sea states, when 

PSOs and infrared technologies are less 

effective. It should be noted that PAM 

without visual observers would also be 

insufficient as individuals may not 

continually vocalize. Further, the 

ENGOs and Oceana recommended that 

a combination of visual monitoring by 

PSOs and PAM should be used at all 

times that survey work is underway in 

order to monitor exclusion zones and 

maximize the detection of protected 

species and stocks. 

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. However, the commenters do 

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 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 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40481 

of the cables themselves is also lowfrequency 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). At present, NMFS is 

unaware of PAM design options that 

would avoid the masking issues 

described here and in the notice of the 

proposed IHA (86 FR 30266; June 7, 

2021), and despite the commenters’ 

claim that these issues are ‘‘entirely 

surmountable,’’ no recommendations 

are provided in this regard. 

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 178 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 

minimal efficacy—NMFS is unaware of 

any occasions on which a vocalizing 

mysticete (other than the occasional 

humpback whale, a species that often 

vocalizes at relatively high frequencies) 

has been detected through use of towed 

PAM), and the cost and impracticability 

of implementing a full-time PAM 

program, we have determined the 

current requirements for visual 

monitoring are sufficient to ensure the 

least practicable adverse impact on the 

affected species or stocks and their 

habitat. However, we note that Vineyard 

Wind 1 has stated their intention to 

voluntarily implement PAM during 

night operations as an added 

precautionary measure even though this 

is not a NMFS requirement due to its 

expected lack of efficacy. 

Comment 20: The ENGOs and Oceana 

both expressed concerns that the 

proposed IHA sets no requirement to 

minimize the impacts of underwater 

noise through the use of best available 

technology and other methods to 

minimize sound levels from geophysical 

surveys. The ENGOs recommended that 

NMFS should require Vineyard Wind 1 

to select sub-bottom profiling systems, 

and operate those systems at power 

settings that achieve the lowest 

practicable source level for the 

objective. Oceana recommended that to 

be consistent with the requirement to 

achieve ‘‘the least practicable impact on 

such species or stock and its habitat,’’ 

the IHA must include conditions for the 

survey activities that will first avoid 

adverse effects on North Atlantic right 

whales in and around the survey site 

and then minimize and mitigate the 

effects that cannot be avoided. They 

state that this should include a full 

assessment of which activities, 

technologies and strategies are truly 

necessary to provide information to 

inform development of Vineyard Wind 

1 and which are not critical. If, for 

example, a lower impact technique or 

technology will provide necessary 

information about the site without 

adverse effects, Oceana recommended 

that technique or technology should be 

permitted while other tools with more 

frequent, intense or long-lasting effects 

should be prohibited. In general, the 

ENGOs and Oceana asserted that NMFS 

must require that all IHA applicants 

minimize the impacts of underwater 

noise to the fullest extent feasible, 

including through the use of best 

available technology and methods to 

minimize sound levels from geophysical 

surveys. 

Response: The MMPA requires that an 

IHA include measures that will effect 

the least practicable adverse impact on 

the affected species and stock and, in 

practice, NMFS agrees that the IHA 

should include conditions for the 

survey activities that will first avoid 

adverse effects on North Atlantic right 

whales in and around the survey site, 

where practicable, and then minimize 

the effects that cannot be avoided. 

NMFS has determined that the IHA 

meets this requirement to effect the least 

practicable adverse impact. Oceana does 

not make any specific recommendations 

of measures to add to the IHA other than 

assessing which technologies and 

strategies are truly necessary to provide 

information to inform development of 

Vineyard Wind 1. While the ENGOs 

recommend the use of sub-bottom 

profiling systems, the Vineyard Wind 1 

developers selected the equipment 

necessary during HRG surveys to 

achieve their objectives (which includes 

shallow sub-bottom profilers). As part of 

the analysis for all marine site 

characterization survey IHAs, NMFS 

evaluated the effects expected as a result 

of use of the specified activity (i.e., the 

equipment described here), made the 

necessary findings, and prescribed 

mitigation requirements sufficient to 

achieve the least practicable adverse 

impact on the affected species and 

stocks of marine mammals. It is not 

within NMFS’ purview to make 

judgments regarding what constitutes 

the ‘‘lowest practicable source level’’ for 

an operator’s survey objectives or the 

appropriate techniques or technologies 

for an operator’s survey objectives. 

Comment 21: The ENGOs and Oceana 

both generally recommended that NMFS 

restrict all vessels of all sizes associated 

with the proposed survey activities to 

speeds less than 10 kn at all times due 

to the risk of vessel strikes to North 

Atlantic right whales and other large 

whales. The ENGOs note that an 

exception may be made in limited 

circumstances where the best available 

scientific information demonstrates that 

whales do not use the area at any time. 

The ENGOs also asserted that NMFS 

must acknowledge that vessel strikes 

can result in take by Level A 

harassment, and that NMFS must 

explicitly analyze the potential for such 

take resulting from vessel collisions in 

its take analysis for Vineyard Wind 1. 

Response: While NMFS acknowledges 

that vessel strikes can result in injury or 

mortality, we have analyzed the 

potential for ship strike resulting from 

Vineyard Wind 1’s activity and have 

determined that based on the nature of 


khammond on DSKJM1Z7X2PROD with NOTICES
40482 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

the activity and the required mitigation 

measures specific to vessel strike 

avoidance included in the IHA, 

potential for vessel strike is so low as to 

be discountable. These mitigation 

measures, most of which were included 

in the proposed IHA and all of which 

are required in the final IHA, include: 

A requirement that all vessel operators 

comply with 10 kn (18.5 km/hour) or 

less speed restrictions in any SMA, 

DMA or Slow Zone (Slow Zones added 

since publication of the proposed IHA) 

while underway, and check daily for 

information regarding the establishment 

of mandatory or voluntary vessel strike 

avoidance areas (SMAs, DMAs, Slow 

Zones) and information regarding North 

Atlantic right whale sighting locations; 

a requirement that all vessels greater 

than or equal to 19.8 m in overall length 

operating from November 1 through 

April 30 operate at speeds of 10 kn (18.5 

km/hour) or less, except while transiting 

in Nantucket Sound; a requirement that 

all vessel operators reduce vessel speed 

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

any large whale, any mother/calf pairs, 

pods, or large assemblages of nondelphinid cetaceans are observed within 

100 m of an underway vessel; a 

requirement that all survey vessels 

maintain a separation distance of 500-m 

or greater from any ESA-listed whales or 

other unidentified large marine 

mammals visible at the surface while 

underway; a requirement that, if 

underway, vessels must steer a course 

away from any sighted ESA-listed whale 

at 10 kn or less until the 500-m 

minimum separation distance has been 

established; a requirement that, if an 

ESA-listed whale is sighted in a vessel’s 

path, or within 500 m of an underway 

vessel, the underway vessel must reduce 

speed and shift the engine to neutral; a 

requirement that all vessels underway 

must maintain a minimum separation 

distance of 100 m from all non-ESAlisted baleen whales; and a requirement 

that all vessels underway must, to the 

maximum extent practicable, attempt to 

maintain a minimum separation 

distance of 50 m from all other marine 

mammals, with an understanding that at 

times this may not be possible (e.g., for 

animals that approach the vessel). We 

have determined that the ship strike 

avoidance measures in the IHA are 

sufficient to ensure the least practicable 

adverse impact on species or stocks and 

their habitat. Furthermore, no 

documented vessel strikes have 

occurred for any marine site 

characterization surveys which were 

issued IHAs from NMFS during the 

survey activities themselves or while 

transiting to and from project sites. 

Comment 22: Oceana recommended 

that the IHA should require all vessels 

supporting site characterization to be 

equipped with and using Class A 

Automatic Identification System (AIS) 

devices at all times while on the water 

in order to support oversight and 

enforcement of the conditions of the 

HRG survey. Oceana suggested this 

requirement should apply to all vessels, 

regardless of size, associated with the 

project. 

Response: NMFS is generally 

supportive of the idea that vessels 

involved with survey activities be 

equipped with and using Class A 

Automatic Identification System 

(devices) at all times while on the water. 

Indeed, there is a precedent for NMFS 

requiring such a stipulation for 

geophysical surveys in the Atlantic 

Ocean (38 FR 63268, December 7, 2018); 

however, these activities carried the 

potential for much more significant 

impacts than the marine site 

characterization surveys to be carried 

out by Vineyard Wind 1, with the 

potential for both Level A and Level B 

harassment take. Given the small 

isopleths and small numbers of take 

authorized by this IHA, NMFS does not 

agree that the benefits of requiring AIS 

on all vessels associated with the survey 

activities outweighs and warrants the 

cost and practicability issues associated 

with this requirement. 

Comment 23: Oceana asserts that the 

IHA must include requirements to hold 

all vessels associated with site 

characterization surveys accountable to 

the IHA requirements, including vessels 

owned by the developer, contractors, 

employees, and others regardless of 

ownership, operator, contract. They 

state that exceptions and exemptions 

will create enforcement uncertainty and 

incentives to evade regulations through 

reclassification and redesignation. They 

recommend that NMFS simplify this by 

requiring all vessels to abide by the 

same requirements, regardless of size, 

ownership, function, contract or other 

specifics. 

Response: NMFS agrees with Oceana 

and required these measures in the 

proposed IHA and final IHA. The IHA 

requires that a copy of the IHA must be 

in the possession of Vineyard Wind 1, 

the vessel operators, the lead PSO, and 

any other relevant designees of 

Vineyard Wind 1 operating under the 

authority of this IHA. The IHA also 

states that Vineyard Wind 1 must ensure 

that the vessel operator and other 

relevant vessel personnel, including the 

PSO team, are briefed on all 

responsibilities, communication 

procedures, marine mammal monitoring 

protocols, operational procedures, and 

IHA requirements prior to the start of 

survey activity, and when relevant new 

personnel join the survey operations. 

Further, the IHA includes a measure 

that states that the IHA may be 

modified, suspended or withdrawn if 

the holder fails to abide by the 

conditions prescribed in the IHA, or if 

NMFS determines the authorized taking 

is having more than a negligible impact 

on the species or stock of affected 

marine mammals. 

Comment 24: The ENGOs objected to 

NMFS’ process to consider extending 

any one-year IHA with a truncated 15- 

day comment period as contrary to the 

MMPA. 

Response: NMFS’ IHA renewal 

process meets all statutory 

requirements. 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. 

The notice of the proposed IHA 

published in the Federal Register on 

June 7, 2021 (86 FR 30266) made clear 

that the agency was seeking comment 

on the 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 1-year period of 

the initial IHA, reviewers have the 

information needed to effectively 

comment on both the immediate 

proposed IHA and a possible 1-year 

renewal, should the IHA holder choose 

to request one 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 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40483 

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. 

Changes From the Proposed IHA to 

Final IHA 

The final IHA includes a measure 

requiring Vineyard Wind 1 to abide by 

the relevant Project Design Criteria 

(PDC) of the programmatic consultation, 

completed by NMFS GARFO on June 

29, 2021, pursuant to section 7 of the 

Endangered Species Act. The full list of 

PDC and BMPs are included in 

Appendix B of the 2021 Programmatic 

Consultation, which can be accessed on 

NMFS’ website (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-vineyardwind-1-marine-site-characterizationsurveys). Further, NMFS has modified 

several measures in the final IHA to 

align more closely with the PDCs. We 

provide a summary here, and the 

changes are also described in the 

specific applicable sections below (e.g., 

Mitigation Measures). The modifications 

include an update to the pre-start 

clearance observation requirement, 

which now reflects a 500 m radius for 

all ESA-listed marine mammals, rather 

than a 500 m radius for North Atlantic 

right whales only, as was included in 

the proposed IHA. Additionally, this 

pre-start clearance observation is now 

required for 30 minutes, rather than 

60 minutes as initially proposed by 

Vineyard Wind 1 and included in the 

proposed IHA (86 FR 30266; June 7, 

2021). Further, a 30 minute delay in 

initiation of acoustic sources is now 

required after a sighting of all marine 

mammals other than odontocetes and 

seals within the pre-start clearance 

zones, rather than a separate 60-minute 

delay for a sighting of North Atlantic 

right whales, as was initially proposed 

by Vineyard Wind 1 and included in the 

proposed IHA. A 30-minute pre-start 

clearance zone and 30-minute delay for 

sightings of North Atlantic right whales 

is consistent with numerous other HRG 

survey-related IHAs (e.g., 86 FR 33664, 

June 25, 2021; 86 FR 38033, July 19, 

2021; 86 FR 38296, July 20, 2021), as 

well as the 2021 programmatic 

consultation. The final IHA also 

includes an the additional requirement 

for Vineyard Wind 1 to follow speed 

restrictions in ‘‘Slow Zones’’ in addition 

to SMAs and DMAs included in the 

proposed IHA. Further, the final IHA 

requires Vineyard Wind 1 to check daily 

for information regarding the 

establishment of mandatory or 

voluntary vessel strike avoidance areas 

(SMAs, DMAs, Slow Zones) and 

information regarding North Atlantic 

right whale sighting locations, while the 

proposed IHA required Vineyard Wind 

1 to monitor NMFS North Atlantic right 

whale reporting systems from November 

1st through April 30th in order to 

ensure vessel operators are aware of any 

newly established DMAs. Lastly, the 

final IHA requires vessels to maintain a 

minimum separation distance of 500 m 

from ESA-listed whales or other 

unidentifiable large marine mammals 

visible at the surface, rather than 

keeping a 500 m distance from North 

Atlantic right whales only. Vessels must 

maintain a separation distance of 100 m 

from all non-ESA listed baleen whales. 

Additionally, NMFS modified a 

mitigation measure to state that 

‘‘Vineyard Wind 1 must not operate 

more than three concurrent HRG survey 

vessels concurrently, with HRG survey 

equipment operating at or below 

180 kHz, from January through April 

within the lease area or export cable 

corridor, not including coastal and bay 

waters,’’ rather than applying this 

measure to equipment operating at or 

below 200 kHz, to align with the June 

29, 2021 programmatic consultation 

also. Consistency among documents is 

expected to avoid confusion among 

vessel operators and other relevant 

personnel (including the PSO team) that 

may otherwise result. 

Last, the final IHA authorizes 10 takes 

by Level B harassment of North Atlantic 

right whale, rather than 9 takes included 

in the proposed IHA, to reflect an 

updated density estimate. Please see the 

Estimated Take section for additional 

information. 

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 for 

which take is expected and authorized 

for this action, 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 the Committee 

on Taxonomy (2020). 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 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 most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. 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. All values presented in 

Table 2 are the most recent available at 

the time of publication and, except for 

North Atlantic right whale, are available 

in the 2019 SARs (Hayes et al., 2020) 

and draft 2020 SARs (available online 

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

national/marine-mammal-protection/ 

draft-marine-mammal-stockassessment-reports). The most recent 

North Atlantic right whale stock 

abundance estimate is presented in 

NOAA Technical Memorandum NMFS– 

NE–269 (Pace 2021). 


khammond on DSKJM1Z7X2PROD with NOTICES
40484 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

TABLE 2—MARINE MAMMALS LIKELY TO OCCUR IN THE PROJECT AREA THAT MAY BE AFFECTED BY VINEYARD WIND 1’s 

PLANNED ACTIVITY

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 4 Eubalaena glacialis ................ Western North Atlantic ........... E/D; Y 368 (NA; 356; 2018) .............. 0.8 18.6 

Family Balaenopteridae 

(rorquals): 

Humpback whale .............. Megaptera novaeangliae ........ Gulf of Maine .......................... -/-; Y 1,393 (0.15; 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 Eastern Coastal ..... -/-; N 21,968 (0.31; 17,002; 2016) .. 170 10.6 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Physeteridae: 

Sperm whale .................... Physeter macrocephalus ........ North Atlantic .......................... E; Y 4,349 (0.28; 3,451; 2016) ...... 3.9 0 

Family Delphinidae: 

Long-finned pilot whale .... Globicephala melas ................ Western North Atlantic ........... -/-; N 39,215 (0.3; 30,627; 2016) .... 306 21 

Bottlenose dolphin ........... Tursiops spp. .......................... Western North Atlantic Offshore.-/-; N 62,851 (0.213; 51,914; 2016) 519 28 

Common dolphin .............. Delphinus delphis ................... Western North Atlantic ........... -/-; N 172,974 (0.21; 145,216; 2016) 1,452 399 

Atlantic white-sided dolphin.Lagenorhynchus acutus ......... Western North Atlantic ........... -/-; N 92,233 (0.71; 54,433; 2016) .. 544 26 

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): 

Gray seal 5 ........................ Halichoerus grypus ................ Western North Atlantic ........... -/-; N 27,131 (0.19; 23,158, 2016) .. 1,389 4,729 

Harbor seal ....................... Phoca vitulina ......................... Western North Atlantic ........... -/-; N 75,834 (0.15; 66,884, 2012) .. 2,006 350 

1Endangered Species Act (ESA) 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-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable (NA). 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, vessel strike). 4This is the latest stock abundance estimate and Nmin as presented in Pace (2021). 5 NMFS stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,431. The annual M/SI value is given for the total stock. 

As indicated above, all 14 species 

(with 14 managed stocks) in Table 2 

temporally and spatially co-occur with 

the activity to the degree that take is 

reasonably likely to occur. In addition to 

what is included in Sections 3 and 4 of 

the application, the SARs, and NMFS’s 

website, further detail informing the 

baseline for select species (i.e., 

information regarding current Unusual 

Mortality Events (UME) and important 

habitat areas) was provided in the notice 

of proposed IHA (86 FR 30266; June 7, 

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) 

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 decibel 

(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. 


khammond on DSKJM1Z7X2PROD with NOTICES

I I I I 

I I I I 
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40485 

TABLE 3—MARINE MAMMAL HEARING GROUPS (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. Fourteen marine 

mammal species (12 cetacean and 2 

phocids pinnipeds) have the reasonable 

potential to co-occur with the planned 

survey activities. Please refer to Table 2. 

Of the cetacean species that may be 

present, five are classified as lowfrequency cetaceans (i.e., all mysticete 

species), six are classified as midfrequency cetaceans (i.e., all delphinid 

species and the sperm whale), and one 

is classified as high-frequency cetaceans 

(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 Vineyard 

Wind 1’s specified activity may impact 

marine mammals and their habitat (86 

FR 30266; June 7, 2021). Detailed 

descriptions of the potential effects of 

similar specified activities have been 

provided in other recent Federal 

Register notices, including for survey 

activities using the same methodology, 

over a similar amount of time, and 

occurring within the same specified 

geographical region (e.g., 82 FR 20563, 

May 3, 2017; 85 FR 36537, June 17, 

2020; 85 FR 37848, June 24, 2020; 85 FR 

48179, August 10, 2020). No significant 

new information is available, and we 

refer the reader to the notice of 

proposed IHA (86 FR 30266; June 7, 

2021) and to these documents 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 Vineyard Wind 1’s activity. The 

Negligible Impact Analysis and 

Determination section considers the 

potential effects of the specified activity, 

the Estimated Take section, and the 

Mitigation Measures 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. The notice of 

proposed IHA (86 FR 30266; June 7, 

2021) also provided background 

information regarding active acoustic 

sound sources and acoustic 

terminology, which is not repeated here. 

The potential effects of Vineyard 

Wind 1’s specified survey activity are 

expected to be limited to Level B 

behavioral harassment. No permanent or 

temporary auditory effects, or 

significant impacts to marine mammal 

habitat, including prey, are expected. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes 

authorized through this IHA, which will 

inform both NMFS’s 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 HRG 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 (EZs) and 

shutdown measures) discussed in detail 

below in the Mitigation Measures 

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. 

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 permanent 

threshold shift (PTS) of some degree 

(equated to Level A harassment). 

Level B Harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 


khammond on DSKJM1Z7X2PROD with NOTICES
40486 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

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., boomers, sparkers) and nonimpulsive, intermittent sources (e.g., 

chirp SBPs) evaluated here for Vineyard 

Wind 1’s planned activity. 

Level A Harassment—NMFS’s 

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’s 2018 Technical Guidance, 

which may be accessed at 

www.fisheries.noaa.gov/national/ 

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

Vineyard Wind 1’s planned activity 

includes the use of impulsive (i.e., 

sparkers and boomers) and nonimpulsive (e.g., CHIRP SBP) 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 planned for 

use here, and the potential for Level A 

harassment is not evaluated further in 

this document. Please see Vineyard 

Wind 1’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 

were less than 5 m for all sources and 

hearing groups with the exception of an 

estimated 53 m zone calculated for highfrequency cetaceans during use of the 

Applied Acoustics AA251 Boomer, (see 

Table 1 for source characteristics). 

Vineyard Wind 1 did not request 

authorization of take by Level A 

harassment, and no take by Level A 

harassment is authorized by NMFS. 

Ensonified Area 

NMFS has developed a user-friendly 

methodology for estimating the extent of 

the Level B harassment isopleths 

associated with relevant HRG survey 

equipment (NMFS, 2020). This 

methodology incorporates frequency 

and directionality to refine estimated 

ensonified zones. For acoustic sources 

that operate with different beamwidths, 

the maximum beamwidth was used, and 

the lowest frequency of the source was 

used when calculating the frequencydependent absorption coefficient (Table 

1). 

NMFS considers the data provided by 

Crocker and Fratantonio (2016) to 

represent the best available information 

on source levels associated with HRG 

equipment and, therefore, recommends 

that source levels provided by Crocker 

and Fratantonio (2016) be incorporated 

in the method described above to 

estimate isopleth distances to 

harassment thresholds. In cases when 

the source level for a specific type of 

HRG equipment is not provided in 

Crocker and Fratantonio (2016), NMFS 

recommends that either the source 

levels provided by the manufacturer be 

used, or, in instances where source 

levels provided by the manufacturer are 

unavailable or unreliable, a proxy from 

Crocker and Fratantonio (2016) be used 

instead. Table 1 shows the HRG 

equipment types that may be used 

during the planned surveys and the 

source levels associated with those HRG 

equipment types. 

Results of modeling using the 

methodology described above indicated 

that, of the HRG survey equipment 

planned for use by Vineyard Wind 1 

that has the potential to result in Level 

B harassment of marine mammals, the 

Applied Acoustics AA251 Boomer will 

produce the largest Level B harassment 

isopleth (178 m; see Table 7 of Vineyard 

Wind 1’s application). The estimated 

Level B harassment isopleth associated 

with the GeoMarine Geo Spark 2000 

(400 tip) system planned for use is 141 

m. Although Vineyard Wind 1 does not 

expect to use the AA251 Boomer source 

on all planned survey days, it proposes 

to assume, for purposes of analysis, that 

the boomer will be used on all survey 

days. This is a conservative approach, as 

the actual sources used on individual 

survey days may produce smaller 

harassment distances. 

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. 

Density estimates for all species 

within the project area were derived 

from habitat-based density modeling 

results reported by Roberts et al. (2016, 

2017, 2018, 2020). The 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://

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). We note the 

availability of a more recent model 

version for the North Atlantic right 

whale. However, this latest update 

resulted in changed predictions only for 

Cape Cod Bay and, therefore, would not 

result in changes to the take estimate 

presented herein. More information is 

available online at: https://

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

EC_North_Atlantic_right_whale_

history.html. The updated models 

incorporate additional sighting data, 

including sightings from NOAA’s 

Atlantic Marine Assessment Program for 

Protected Species (AMAPPS) surveys. 

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

provide abundance estimates for species 

or species guilds within 10 km x 10 km 

grid cells (100 km2; except North 

Atlantic right whale—see discussion 

below) on a monthly or annual basis, 

depending on the species. 

For the exposure analysis, density 

data from Roberts et al. (2016, 2017, 

2018, 2020) were mapped using a 

geographic information system (GIS). 

Vineyard Wind 1 calculated densities 

within a 50 km buffer polygon around 

the wind development area perimeter. 

The 50 km limit was derived from 

studies demonstrating that received 

levels, distance from the source, and 

behavioral context are known to 

influence marine mammals’ probability 

of behavioral response (Dunlop et al. 

2017). The monthly density was 

determined by calculating the mean of 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40487 

all grid cells partially or fully within the 

buffer polygon. The average monthly 

abundance for each species in each 

survey area was calculated as the mean 

value of the grid cells within the buffer 

area in each month and then converted 

to density (individuals/km2) by dividing 

by 100 km2 (Table 1). Annual mean 

densities were calculated from monthly 

densities (Table 4). 

The estimated monthly densities of 

North Atlantic right whales were based 

on Version 10 model results from 

Roberts et al. (2020) (updated from the 

Version 9 model results included in the 

proposed IHA). As stated in the 

Comments and Responses section of this 

notice, the Version 10 update to the 

model was primarily focused on 

Massachusetts Bay, which does not 

overlap the project area and therefore, is 

not relevant to this IHA. However, 

Version 10 also included additional 

survey data in the ‘‘Hatteras Island to 

Nantucket Shoals’’ area (a portion of 

which does overlap the project area), 

which resulted in slightly higher 

densities in part of the project area 

south of Nantucket. Therefore, the 

Version 10 density for the project area 

is 0.0018/km2, rather than 0.0016/km2

in Version 9. NMFS updated the take 

estimate for North Atlantic right whale 

in the final IHA to reflect the Version 10 

update. Additionally, as noted above, 

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 Rhode 

Island and southern Massachusetts.) 

These updated data for North Atlantic 

right whales are provided as densities 

(individuals/1 km2) within 5 km x 5 km 

grid cells (25 km2) on a monthly basis. 

The same GIS process described above 

was used to select the appropriate grid 

cells from each month and the monthly 

North Atlantic right whale density in 

each survey area was calculated as the 

mean value of the grid cells as described 

above. Additional data regarding 

average group sizes from survey effort in 

the region was considered to ensure 

adequate take estimates are evaluated. 

Take Calculation and Estimation 

Here we describe how the information 

provided above is brought together to 

produce a quantitative take estimate. In 

order to estimate the number of marine 

mammals predicted to be exposed to 

sound levels that would result in 

harassment, radial distances to 

predicted isopleths corresponding to 

harassment thresholds are calculated, as 

described above. Those distances are 

then used to calculate the area(s) around 

the HRG survey equipment predicted to 

be ensonified to sound levels that 

exceed harassment thresholds. The area 

estimated to be ensonified to relevant 

thresholds in a single day (zone of 

influence (ZOI)) is then calculated, 

based on areas predicted to be 

ensonified around the HRG survey 

equipment (i.e., 178 m) and the 

estimated trackline distance traveled per 

day by the survey vessel (i.e., 80 km). 

Based on the maximum estimated 

distance to the Level B harassment 

threshold of 178 m (Applied Acoustics 

AA251 Boomer) and the maximum 

estimated daily track line distance of 80 

km, the ZOI is estimated to be 28.58 km2

during Vineyard Wind 1’s planned HRG 

surveys. As described above, this is a 

conservative estimate as it assumes the 

HRG source that results in the greatest 

distance to the Level B harassment 

isopleth will be operated at all times 

during all vessel days. 

ZOI = (Distance/day × 2r) + pr2

Where r is the linear distance from the 

source to the harassment isopleth. 

Potential daily Level B harassment 

takes are estimated by multiplying the 

average annual marine mammal 

densities (animals/km2), as described 

above, by the ZOI. Estimated numbers of 

each species taken over the duration of 

the authorization are calculated by 

multiplying the potential daily Level B 

harassment takes by the total number of 

vessel days plus a 10 percent buffer (i.e., 

by 170 vessel days × 1.1 percent = 192.5 

vessel days). The product is then 

rounded, to generate an estimate of the 

total number of instances of harassment 

expected for each species over the 

duration of the survey. A summary of 

this method is illustrated in the 

following formula: 

Estimated Take = D × ZOI × vessel days 

Where D = average species density 

(animals/km2), ZOI = maximum daily 

ensonified area to relevant threshold, 

and vessel days = 192.5. 

Take by Level B harassment 

authorized is shown in Table 4. 

TABLE 4—TOTAL NUMBERS OF INCIDENTAL TAKE OF MARINE MAMMALS AUTHORIZED AND AUTHORIZED TAKES AS A

PERCENTAGE OF POPULATION

Species of interest 

Annual mean 

density 

(km2) 

Estimated takes 

by Level B 

harassment 

Authorized takes 

by Level B 

harassment a

Abundance Percent of 

stock 

Fin whale .................................................................. 0.00149 8.22 8 6,802 0.13 

Humpback whale ..................................................... 0.00084 4.63 5 1,393 0.36 

Minke whale ............................................................. 0.00062 3.42 3 21,968 0.02 

North Atlantic right whale b ...................................... 0.0018 9.9 10 368 2.72 

Sei whale ................................................................. 0.00005 0.28 2 6,292 0.03 

Sperm whale ............................................................ 0.00006 0.33 2 4,349 0.05 

Atlantic white sided dolphin ..................................... 0.02226 122.78 123 92,233 0.13 

Bottlenose dolphin ................................................... 0.0403 222.29 222 62,851 0.35 

Long-finned pilot whale ............................................ 0.00459 25.32 25 39,215 0.07 

Risso’s dolphin ......................................................... 0.00012 0.66 8 35,493 0.02 

Common dolphin ...................................................... 0.0544 300.06 3,484 172,974 2.01 

Harbor porpoise ....................................................... 0.02858 157.64 158 95,543 0.17 

Gray seal c ................................................................ 0.09784 539.67 540 27,131 1.99 

Harbor seal c ............................................................ 539.67 540 75,834 0.71 

a Increases from calculated values for sei whale, sperm whale, and Risso’s dolphin are based on observed group sizes during Vineyard Wind 

LLC’s 2018–2020 surveys (Vineyard Wind 2018, 2020a, 2020b). b Updated to reflect the Roberts et al. (2020) Version 10 density estimate. c Roberts et al. (2018) only provides density estimates for seals without differentiating by species. Harbor seals and gray seals are assumed to

occur equally; therefore, density values were split evenly between the two species, i.e., total estimated take for ‘‘seals’’ is 1,080. 


khammond on DSKJM1Z7X2PROD with NOTICES
40488 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

The take numbers shown in Table 4 

are those requested by Vineyard Wind 1, 

with the exception of certain minor 

rounding differences. Further, Vineyard 

Wind 1 requested take of the pilot whale 

guild, rather than just long-finned pilot 

whale, but as described previously, pilot 

whales in the project area are expected 

to be long-finned pilot whales. 

Additionally, NMFS increased 

authorized Level B harassment take of 

common dolphin to 3,484 takes. This 

take estimate reflects the daily rate of 

approximately 18.1 common dolphin 

observations within the Level B 

harassment zone per vessel day (3,332 

dolphin observations over 184 days) 

during surveys under Vineyard Wind’s 

previous IHA (85 FR 42357; July 14, 

2020), and an estimated 192.5 vessel 

days, as described above (18.1 takes per 

day × 192.5 vessel days = 3,484 takes). 

Given the overlap in project areas, 

NMFS expects that this estimate is more 

appropriate than the density-based 

common dolphin take estimate 

calculated by Vineyard Wind 1. For all 

other species, NMFS concurs with the 

take numbers requested by Vineyard 

Wind 1 and proposes to authorize them. 

Mitigation Measures 

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 

may consider such things as cost and 

impact on operations. 

Mitigation for Marine Mammals and 

Their Habitat 

NMFS requires the following 

mitigation measures be implemented 

during Vineyard Wind 1’s planned 

marine site characterization surveys. 

Marine Mammal Exclusion Zones and 

Harassment Zones 

Marine mammal EZs will be 

established around the HRG survey 

equipment and monitored by protected 

species observers (PSO): 

• 500 m (1,640 ft) EZ for North 

Atlantic right whales during use of 

impulsive acoustic sources (e.g., 

boomers and/or sparkers) and certain 

non-impulsive acoustic sources 

(nonparametric sub-bottom profilers); 

and 

• 100 m (328 ft) EZ for all other 

marine mammals, with certain 

exceptions specified below, during use 

of impulsive acoustic sources (e.g., 

boomers and/or sparkers). 

If a marine mammal is detected 

approaching or entering the EZs during 

the HRG survey, the vessel operator will 

adhere to the shutdown procedures 

described below to minimize noise 

impacts on the animals. These stated 

requirements will be included in the 

training to be provided to the survey 

team. 

Pre-Clearance of the Exclusion Zones 

Vineyard Wind 1 will implement a 

30-minute pre-clearance period of the 

pre-clearance zones prior to the 

initiation of ramp-up of HRG 

equipment. This pre-clearance duration 

was proposed by Vineyard Wind 1. 

During this period, PSO(s) will monitor 

a 500 m zone for ESA-listed marine 

mammals (North Atlantic right whale, 

fin whale, sei whale, sperm whale) and 

a 100 m zone for non-ESA-listed marine 

mammals, using the appropriate visual 

technology. Ramp-up may not be 

initiated if any marine mammal(s) is 

within its respective zones. If a marine 

mammal is observed within the 

respective zone during the pre-clearance 

period, ramp-up may not begin until the 

animal(s) has been observed exiting its 

respective zone or until an additional 

time period has elapsed with no further 

sighting (i.e., 15 minutes for small 

odontocetes and seals, 30 minutes for all 

other species). 

Ramp-Up of Survey Equipment 

When technically feasible, a ramp-up 

procedure will be used for HRG survey 

equipment capable of adjusting energy 

levels at the start or restart of survey 

activities. The ramp-up procedure will 

be used at the beginning of HRG survey 

activities in order to provide additional 

protection to marine mammals near the 

survey area by allowing them to vacate 

the area prior to the commencement of 

survey equipment operation at full 

power. 

A ramp-up will begin with the 

powering up of the smallest acoustic 

HRG equipment at its lowest practical 

power output appropriate for the 

survey. When technically feasible, the 

power will then be gradually turned up 

and other acoustic sources will be 

added. 

Ramp-up activities will be delayed if 

a marine mammal(s) enters its 

respective EZ. Ramp-up will continue if 

the animal has been observed exiting its 

respective EZ or until an additional time 

period has elapsed with no further 

sighting (i.e, 15 minutes for small 

odontocetes and seals, 30 minutes for all 

other species). 

Activation of survey equipment 

through ramp-up procedures may not 

occur when visual observation of the 

pre-clearance/exclusion zone is not 

expected to be effective using the 

appropriate visual technology (i.e., 

during inclement conditions such as 

heavy rain or fog). 

Shutdown Procedures 

An immediate shutdown of the HRG 

survey equipment will be required if a 

marine mammal is sighted entering or 

within its respective EZ. The vessel 

operator must comply immediately with 

any call for shutdown by the PSO. Any 

disagreement between the 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 

EZ or until an additional time period 

has elapsed (i.e, 15 minutes for 

delphinid cetaceans and seals, 30 

minutes for all other species). 

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 

(178 m impulsive), shutdown will 

occur. 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40489 

If the acoustic source is shut down for 

reasons other than mitigation (e.g., 

mechanical difficulty) for less than 30 

minutes, it may be activated again 

without ramp-up if PSOs have 

maintained constant observation and no 

detections of any marine mammal have 

occurred within the respective EZs. If 

the acoustic source is shut down for a 

period longer than 30 minutes and PSOs 

have maintained constant observation, 

then pre-clearance and ramp-up 

procedures will be initiated as described 

in the previous section. 

The shutdown requirement will be 

waived for small delphinids of the 

following genera: Delphinus, 

Lagenorhynchus (acutus only), and 

Tursiops. Specifically, if a delphinid 

from the specified genera is 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 EZ belongs to 

a genus other than those specified. 

Shutdown, pre-start clearance, and 

ramp-up procedures are not required 

during HRG survey operations using 

only non-impulsive sources (e.g., USBL 

and parametric sub-bottom profilers) 

other than non-parametric sub-bottom 

profilers (e.g., CHIRPs). Pre-clearance 

and ramp-up, but not shutdown, are 

required when using non-impulsive, 

non-parametric sub-bottom profilers. 

Vessel Strike Avoidance 

Vineyard Wind 1 will ensure that 

vessel operators and crew maintain a 

vigilant watch for cetaceans and 

pinnipeds and slow down or stop their 

vessels to avoid striking these species. 

Survey vessel crew members 

responsible for navigation duties will 

receive site-specific training on marine 

mammals sighting/reporting and vessel 

strike avoidance measures. Vessel strike 

avoidance measures 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 survey vessels, regardless of 

size, must observe a 10-knot speed 

restriction in specific areas designated 

by NMFS for the protection of North 

Atlantic right whales from vessel strikes 

including SMAs, DMAs, and Slow 

Zones when in effect; 

• All vessels greater than or equal to 

19.8 m in overall length operating from 

November 1 through April 30 will 

operate at speeds of 10 knots or less, 

except while transiting in Nantucket 

Sound; 

• 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; 

• All vessels must maintain a 

minimum separation distance of 500 m 

from ESA-listed whales or other 

unidentifiable large marine mammals 

visible at the surface; 

• All vessels must maintain a 

minimum separation distance of 100 m 

from all non-ESA-listed baleen whales; 

• All vessels must, to the maximum 

extent practicable, attempt to maintain a 

minimum separation distance of 50 m 

from all other marine mammals, with an 

understanding that at times this may not 

be possible (e.g., for animals that 

approach the vessel); 

• 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 

until animals are clear of the area. This 

does not apply to any vessel towing gear 

or any vessel that is navigationally 

constrained; 

• 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; and 

• Members of the monitoring team 

will consult NMFS North Atlantic right 

whale reporting system and Whale 

Alert, as able, for the presence of North 

Atlantic right whales throughout survey 

operations, and for the establishment of 

a DMA or Slow Zone. If NMFS should 

establish a DMA or Slow Zone in the 

survey area during survey operations, 

the vessels will abide by speed 

restrictions in the DMA or Slow Zone. 

Passive Acoustic Monitoring 

Vineyard Wind 1 plans to employ 

trained PAM operators to monitor for 

acoustic detections of marine mammals 

during nighttime HRG survey activities. 

PAM operators will communicate 

nighttime detections to the lead PSO on 

duty who will ensure the 

implementation of the appropriate 

mitigation measure. If PAM is not used 

or is deemed non-functional at any time 

during the survey, the survey will be 

shut down until PAM is restored. NMFS 

does not concur that PAM is an effective 

technique for detecting mysticetes in 

order to implement mitigation measures 

during HRG surveys, given masking that 

would occur from vessel noise and flow 

noise. Therefore, NMFS has not 

included it as a requirement in this IHA. 

Seasonal Restrictions 

Vineyard Wind 1 will not operate 

more than three survey vessels 

concurrently, with HRG survey 

equipment operating below 180 kHz, 

from January through April within the 

lease area or export cable corridor, not 

including coastal and bay waters. 

Additionally, the monitoring team will 

consult NMFS’s North Atlantic right 

whale reporting systems for any 

observed right whales throughout 

survey operations within or adjacent to 

SMAs, DMAs, and/or Slow Zones and 

will comply with 10 knot speed 

restrictions in any SMA, DMA, or Slow 

Zone as noted above. 

Crew Training 

Prior to initiation of survey work, all 

crew members will undergo 

environmental training, a component of 

which will focus on the procedures for 

sighting and protection of marine 

mammals. 

In addition to the measures discussed 

in detail in this section, Vineyard Wind 

1 must abide by the relevant Project 

Design Criteria (PDC) of the 

programmatic consultation completed 

by NMFS GARFO on June 29, 2021, 

pursuant to section 7 of the Endangered 

Species Act. 


khammond on DSKJM1Z7X2PROD with NOTICES
40490 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

Based on our evaluation of the 

applicant’s planned measures, NMFS 

has determined that the mitigation 

measures provide the means effecting 

the least practicable impact on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance. 

Monitoring and Reporting 

In order to issue an IHA for an 

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

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present 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). 

• Mitigation and monitoring 

effectiveness. 

Monitoring Measures 

As described above, visual monitoring 

will be performed by qualified and 

NMFS-approved PSOs, the resumes of 

whom will be provided to NMFS for 

review and approval prior to the start of 

survey activities. Vineyard Wind 1 will 

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 and 

conducting visual observations at all 

times on all active survey vessels when 

HRG equipment operating at or below 

200 kHz is operating, including both 

daytime and nighttime operations. 

Visual monitoring will begin no less 

than 30 minutes prior to initiation of 

HRG survey equipment and will 

continue until 30 minutes after use of 

the acoustic source ceases. Vineyard 

Wind 1 states that a requirement to 

employ at least two PSOs during all 

nighttime survey operations is 

impracticable, given the limited 

available berths on the survey vessels 

and additional personnel required to 

conduct PAM. 

Observations will take place from the 

highest available vantage point on the 

survey vessel. In cases where more than 

one PSO is on duty at a time PSOs will 

coordinate to ensure 360° visual 

coverage around the vessel from the 

most appropriate observation posts. 

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 will be 

communicated to PSOs on all 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 will also be 

available to PSOs for use as appropriate 

based on conditions and visibility to 

support the monitoring of marine 

mammals. PSOs must use night-vision 

technology during nighttime surveys 

when the sources are active. Position 

data will be recorded using hand-held 

or vessel GPS units for each sighting. 

During good conditions (e.g., daylight 

hours; Beaufort sea state (BSS) 3 or less), 

to the maximum extent practicable, 

PSOs will conduct observations when 

the acoustic source is not operating for 

comparison of sighting rates and 

behavior with and without use of the 

acoustic source. Any observations of 

marine mammals by crew members 

aboard any vessel associated with the 

survey will be relayed to the PSO team. 

Data on all PSO observations will be 

recorded based on standard PSO 

collection requirements. This will 

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 

take that occurs (e.g., noted behavioral 

disturbances). 

Reporting Measures 

Within 90 days after completion of 

survey activities, 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 estimated 

to have been taken 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 measures. Any 

recommendations made by NMFS must 

be addressed in the final report prior to 

acceptance by NMFS. PSO datasheets or 

raw sightings data must also be 

provided with the draft and final 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40491 

monitoring report. All draft and final 

monitoring reports must be submitted to 

PR.ITP.MonitoringReports@noaa.gov 

and ITP.Davis@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; 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. 

If a North Atlantic right whale is 

observed at any time by PSOs or 

personnel on any project vessels, during 

surveys or during vessel transit, 

Vineyard Wind 1 must immediately 

report sighting information to the NMFS 

North Atlantic Right Whale Sighting 

Advisory System: (866) 755–6622. North 

Atlantic right whale sightings in any 

location may also be reported to the U.S. 

Coast Guard via channel 16. 

In the event that personnel involved 

in the survey activities covered by the 

authorization discover an injured or 

dead marine mammal, Vineyard Wind 1 

must report the incident to the NMFS 

Office of Protected Resources (OPR) and 

the NMFS New England/Mid-Atlantic 

Stranding Coordinator as soon as 

feasible. The report must 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 event of a vessel strike of a 

marine mammal by any vessel involved 

in the activities covered by the 

authorization, Vineyard Wind 1 must 

report the incident to the NMFS OPR 

and the NMFS New England/MidAtlantic Stranding Coordinator as soon 

as feasible. The report must 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 

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 


khammond on DSKJM1Z7X2PROD with NOTICES
40492 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

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 

2, given that NMFS expects the 

anticipated effects of the planned survey 

to be similar in nature. Where there are 

meaningful differences between species 

or stocks—as is the case of the North 

Atlantic right whale—they are included 

as separate subsections below. NMFS 

does not anticipate that serious injury or 

mortality would occur as a result from 

Vineyard Wind 1’s planned survey 

activities, 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 will 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 

above, Level A harassment is not 

expected to occur given the nature of 

the operations, the estimated size of the 

Level A harassment zones, and the 

required shutdown zones for certain 

activities. 

In addition to being temporary, the 

maximum expected harassment zone 

around a survey vessel is 178 m. 

Although this distance is assumed for 

all survey activity in estimating take 

numbers authorized and evaluated here, 

in reality much of the survey activity 

will involve use of acoustic sources 

with smaller acoustic harassment zones, 

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. (Biologically important areas for 

feeding and migration are discussed 

below.) There is no designated critical 

habitat for any ESA-listed marine 

mammals in the planned survey area. 

North Atlantic Right Whales 

The status of the North Atlantic right 

whale population is of heightened 

concern and, therefore, merits 

additional analysis. As noted 

previously, elevated North Atlantic right 

whale mortalities began in June 2017 

and there is an active UME. Overall, 

preliminary findings support human 

interactions, specifically vessel strikes 

and entanglements, as the cause of 

death for the majority of right whales. 

As noted previously, the planned 

project area overlaps a migratory 

corridor BIA for North Atlantic right 

whales (March–April and November– 

December). In addition to the migratory 

BIA, Oleson et al. (2020) identified an 

area south of Martha’s Vineyard and 

Nantucket, referred to as ‘‘South of the 

Islands,’’ as a newer, year-round, core 

North Atlantic right whale foraging 

habitat. The South of the Islands area 

overlaps with most of Vineyard Wind 

1’s project area. 

As stated previously, the largest Level 

B harassment isopleth for Vineyard 

Wind 1’s survey is 178 m. Therefore, 

even if Vineyard Wind 1 operates 

multiple survey vessels concurrently in 

this area, the total area ensonified above 

the Level B harassment threshold will 

be minimal in comparison with the 

remaining South of the Islands feeding 

habitat, and habitat within the migratory 

corridor BIA available to North Atlantic 

right whales. Additionally, NMFS is 

also requiring Vineyard Wind 1 to limit 

the number of survey vessels operating 

concurrently in the lease area or export 

cable corridor (not including coastal and 

bay waters) to no more than three from 

January through April, when North 

Atlantic right whale densities are the 

highest. Given the factors discussed 

above, and the temporary nature of the 

surveys, right whale migration is not 

expected to be impacted by the planned 

survey, and feeding is not expected to 

be affected to a degree that will affect 

North Atlantic right whale foraging 

success in the South of the Islands 

important feeding area. 

No vessel strike is expected to occur 

during Vineyard Wind 1’s planned 

activities, and required vessel strike 

avoidance measures will decrease risk 

of vessel strike, including during 

migration and feeding. HRG survey 

operations are required to maintain a 

500 m EZ and shutdown if a North 

Atlantic right whale is sighted at or 

within the EZ. Regarding take by Level 

B harassment, the 500 m shutdown zone 

for right whales is conservative, 

considering the Level B harassment 

isopleth for the most impactful acoustic 

source (i.e., boomer) is estimated to be 

178 m. Therefore, this EZ minimizes the 

potential for behavioral harassment of 

this species. Additionally, as noted 

previously, Level A harassment take is 

not expected for any species, including 

North Atlantic right whales, given the 

small PTS zones associated with HRG 

equipment types planned for use. 

The authorized Level B harassment 

takes of North Atlantic right whale are 

not expected to exacerbate or compound 

upon the ongoing UME. The limited 

North Atlantic right whale Level B 

harassment takes authorized are 

expected to be of a short duration, and 

given the number of estimated takes, 

repeated exposures of the same 

individual are not expected. Therefore, 

the takes are not expected to impact 

individual fitness or annual rates of 

recruitment or survival. Further, given 

the relatively small size of the 

ensonified area during surveys, it is 

unlikely that North Atlantic right whale 

prey availability will be adversely 

affected by HRG survey operations. 

Biologically Important Area for Fin 

Whales 

The planned project area overlaps 

with a feeding BIA for fin whales 

(March–October). The fin whale feeding 

BIA is large (2,933 km2), and the 

acoustic footprint of the planned survey 

is sufficiently small such that feeding 

opportunities for these whales will not 

be reduced appreciably. Any fin whales 

temporarily displaced from the planned 

survey area will be expected to have 

sufficient remaining feeding habitat 

available to them, and will not be 

prevented from feeding in other areas 

within the biologically important 

feeding habitat. In addition, any 

displacement of fin whales from the BIA 

or interruption of foraging bouts would 

be expected to be temporary in nature. 

Therefore, we do not expect fin whales 

feeding within the feeding BIAs to be 


khammond on DSKJM1Z7X2PROD with NOTICES
Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 40493 

impacted by the planned survey to an 

extent that would affect fitness or 

reproduction. 

Other Marine Mammal Species With 

Active UMEs 

As noted previously, there are several 

active UMEs occurring in the vicinity of 

Vineyard Wind 1’s planned survey area. 

Elevated humpback whale mortalities 

have occurred along the Atlantic coast 

from Maine through Florida since 

January 2016. Of the cases examined, 

approximately half had evidence of 

human interaction (vessel strike or 

entanglement). Despite the UME, the 

relevant population of humpback 

whales (the West Indies breeding 

population, or distinct population 

segment (DPS)) remains stable at 

approximately 12,000 individuals, and 

the authorized Level B harassment takes 

of humpback whale are not expected to 

exacerbate or compound the ongoing 

UME. 

Beginning in January 2017, elevated 

minke whale strandings have occurred 

along the Atlantic coast from Maine 

through South Carolina, with highest 

numbers in Massachusetts, Maine, and 

New York. The likely population 

abundance is greater than 20,000 

whales, and the authorized Level B 

harassment takes of minke whale are not 

expected to exacerbate or compound 

upon the ongoing UME. 

Elevated numbers of harbor seal and 

gray seal mortalities were first observed 

in July 2018 and have occurred across 

Maine, New Hampshire, and 

Massachusetts. Based on tests 

conducted so far, the main pathogen 

found in the seals is phocine distemper 

virus, although additional testing to 

identify other factors that may be 

involved in this UME are underway. 

The authorized Level B harassment 

takes of harbor seal and gray seal are not 

expected to exacerbate or compound 

upon the ongoing UME. For harbor 

seals, the population abundance is over 

75,000 and annual M/SI (350) is well 

below PBR (2,006) (Hayes et al., 2020). 

The population abundance for gray seals 

in the United States is over 27,000, with 

an estimated abundance, including seals 

in Canada, of approximately 450,000. In 

addition, the abundance of gray seals is 

likely increasing in the U.S. Atlantic as 

well as in Canada (Hayes et al., 2020). 

The required mitigation measures are 

expected to reduce the number and/or 

severity of takes for all species listed in 

Table 2, including those with active 

UMEs, to the level of least practicable 

adverse impact. In particular they will 

provide animals the opportunity to 

move away from the sound source 

throughout the survey area before HRG 

survey equipment reaches full energy, 

thus preventing them from being 

exposed to sound levels that have the 

potential to cause injury (Level A 

harassment) or more severe Level B 

harassment. No Level A harassment is 

anticipated, even in the absence of 

mitigation measures, or authorized. 

NMFS expects that takes will 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 will only 

be exposed briefly to a small ensonified 

area that might result in take. 

Additionally, required mitigation 

measures will 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 authorized; 

• Foraging success is not likely to be 

significantly impacted as effects on 

species that serve as prey species for 

marine mammals from the survey are 

expected to be minimal; 

• The availability of alternate areas of 

similar habitat value for marine 

mammals to temporarily vacate the 

survey area during the planned survey 

to avoid exposure to sounds from the 

activity; 

• Take is anticipated to be primarily 

Level B behavioral harassment 

consisting of brief startling reactions 

and/or temporary avoidance of the 

survey area; 

• While the survey area overlaps 

areas noted as a migratory BIA for North 

Atlantic right whales, the activities will 

occur in such a comparatively small 

area such that any avoidance of the 

survey area due to activities will not 

affect migration. In addition, mitigation 

measures to shutdown at 500 m to 

minimize potential for Level B 

behavioral harassment will limit any 

take of the species; 

• Similarly, due to the relatively 

small footprint of the survey activities 

in relation to the size of the fin whale 

feeding BIA and South of the Islands 

North Atlantic right whale feeding area, 

the survey activities will not affect 

foraging success of these species; and 

• The required mitigation measures, 

including visual monitoring and 

shutdowns, are expected to minimize 

potential impacts to marine mammals. 

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 

monitoring and mitigation measures, 

NMFS finds that the total marine 

mammal take from Vineyard Wind 1’s 

planned HRG survey activities 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. 

Take of all species or stocks is below 

one third of the estimated stock 

abundance (in fact, take of individuals 

is less than 3 percent of the abundance 

for all affected stocks) as shown in Table 

4. Based on the analysis contained 

herein of the planned activity (including 

the 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. 

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 will not have an unmitigable 

adverse impact on the availability of 

such species or stocks for taking for 

subsistence purposes. 


khammond on DSKJM1Z7X2PROD with NOTICES
40494 Federal Register / Vol. 86, No. 142 / Wednesday, July 28, 2021 / Notices 

1https://ecfr.io/Title-50/Section-622.51. 

2https://www.ecfr.gov/cgi-bin/ 

retrieveECFR?gp=&SID=40795e9b

7e80ab071d63d0f076d60d

11&mc=true&r=SUBPART&n=sp50.12.600.q. 3http://www.p-sea.com/. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

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

NOAA Administrative Order (NAO) 

216–6A, NMFS must evaluate our 

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

incidental take authorization) and 

alternatives with respect to potential 

impacts on the human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 of the 

Companion Manual for NAO 216–6A, 

which do not individually or 

cumulatively have the potential for 

significant impacts on the quality of the 

human environment and for which we 

have not identified any extraordinary 

circumstances that would preclude this 

categorical exclusion. Accordingly, 

NMFS has determined that this action 

qualifies to be categorically excluded 

from further NEPA review. 

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, in 

this case with NMFS GARFO. 

The NMFS OPR is authorizing the 

incidental take of fin whale, North 

Atlantic right whale, sei whale, and 

sperm whale, which are listed under the 

ESA. We requested initiation of 

consultation under section 7 of the ESA 

with NMFS GARFO for issuance of this 

IHA. On July 13, 2021, NMFS GARFO 

determined that OPR’s issuance of an 

IHA to Vineyard Wind 1 would be 

covered under the June 29, 2021 

programmatic consultation, and that 

issuance of the IHA is not likely to 

adversely affect fin whale, North 

Atlantic right whale, sei whale, and 

sperm whale or the critical habitat of 

any ESA-listed species or result in the 

take of any marine mammals in 

violation of the ESA. 

Authorization 

NMFS has issued an IHA to Vineyard 

Wind 1 for the potential harassment of 

small numbers of 14 marine mammal 

species incidental to conducting marine 

site characterization surveys offshore of 

Massachusetts and Rhode Island in the 

area of Commercial Lease of Submerged 

Lands for Renewable Energy 

Development on the Outer Continental 

Shelf Lease Area OCS–A 0501 and along 

the Offshore Export Cable Corridor 

provided the previously mentioned 

mitigation, monitoring and reporting 

requirements are followed. 

Dated: July 22, 2021. 

Angela Somma, 

Acting Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2021–16025 Filed 7–27–21; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB263] 

Gulf of Mexico Fishery Management 

Council; Federal Funding Opportunity 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice. 

SUMMARY: The Gulf of Mexico Fishery 

Management Council is requesting 

proposals from highly-qualified 

contractors to organize and expand a 

vessel position monitoring system for 

the federally permitted Gulf of Mexico 

shrimp industry. 

DATES: This will be a 12–18 month 

project and a maximum $350,000 is 

available to fund the work. Proposal 

Submission Deadline: August 20, 2021 

by 11:59 p.m. EST. 

ADDRESSES: Council address: Gulf of 

Mexico Fishery Management Council, 

4701 W Spruce Street, Suite 200, 

Tampa, FL 33607; telephone: (813) 348– 

1630. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Carrie Simmons, Executive Director, 

Gulf of Mexico Fishery Management 

Council; carrie.simmons@

gulfcouncil.org; telephone: (813) 348– 

1630. 

SUPPLEMENTARY INFORMATION: 

Proposal Submission Deadline Friday, 

August 20, 2021 by 11:59 p.m. EST 

The Gulf of Mexico Fishery 

Management Council (Council) seeks a 

highly-qualified contractor to organize 

and expand a vessel position monitoring 

system for the federally permitted Gulf 

of Mexico shrimp industry. The current 

Gulf of Mexico electronic logbook (ELB) 

program that utilized a 3G cellular 

network to transmit data is no longer 

supported, and the server became 

unviable for data storage in December 

2020. Approximately 1⁄3 of the vessels in 

the shrimp industry have been selected 

by the Science and Research Director to 

participate in the ELB monitoring 

program.1 After transmission of the data 

from the shrimp vessels, vessel position 

monitoring data are securely housed by 

the National Marine Fisheries Service 

(NMFS) Southeast Fisheries Science 

Center (Science Center) and used for 

assessment and monitoring efforts 

including bycatch of finfish and 

interactions with protected resources 

across the Gulf of Mexico. 

The Council, in coordination with 

NMFS, is seeking to develop a new 

program that will provide for continued 

collection, storage, and transmission of 

shrimp vessel position data that are 

used to estimate shrimping effort. This 

new program is intended to replace the 

recently discontinued shrimp ELB 

program. In the interim, the Council is 

developing a document to require the 

owner or operator of a vessel with a 

valid federal shrimp permit to install an 

approved vessel monitoring system that 

archives vessel location and 

automatically transmits this data to 

NMFS. In addition, the newly 

developed program will be required to 

meet NMFS hardware/software type 

approval.2 Thus, the intent and need for 

this study is to test the P-Sea WindPlot 3

software program with a portion of the 

shrimp fleet in the near term to 

determine if it meets the needs of 

industry, Council, and NMFS. 

Proposals should identify by region/ 

state the number of vessels that will 

volunteer to participate in the proposed 

pilot program for vessel position 

monitoring in the Gulf of Mexico. The 

proposed work should clearly define 

methodology and intent for meeting the 

NMFS software and hardware 

requirements while documenting the 

estimated costs to the industry. The 

proposal should detail the methodology 

proposed for archiving the vessel 

location, data retention, and automatic 

transmission of the data to NMFS when 

within cellular/satellite range of land. 

A team will establish selection criteria 

and review the proposals after the 

proposal submission deadline. The 

Council will develop an agreement with 

the selected contractor(s) with 

milestones and deliverables after the 

review and selection process. The 

selected contractor(s) will work with 

Council staff. 


khammond on DSKJM1Z7X2PROD with NOTICES