# Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction of the Vineyard Wind Offshore Wind Project > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2021-13501 ## Record - **Collection:** Federal Register - **Document type:** Notice - **Published:** June 25, 2021 - **Citation:** 86 FR 33810 ## Text DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [RTID 0648-XA881] Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Construction of the Vineyard Wind Offshore Wind Project 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, LLC (Vineyard Wind) to take, by Level A harassment and Level B harassment, marine mammals during construction of a commercial wind energy project offshore Massachusetts. DATES: The IHA is valid from May 1, 2023 through April 30, 2024. FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these documents, please call the contact listed above. SUPPLEMENTARY INFORMATION: Background The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed incidental take authorization may be provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such 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 such 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 September 7, 2018, NMFS received a request from Vineyard Wind for an IHA to take marine mammals incidental to pile driving associated with the construction of an offshore wind energy project south of Massachusetts. Vineyard Wind submitted revised versions of the application on October 11, 2018 and on January 28, 2019. The application was deemed adequate and complete on February 15, 2019. A notice of proposed IHA was published in the Federal Register on April 30, 2019 (84 FR 18346). In response to Vineyard Wind's request and in consideration of public comments, NMFS has authorized the taking of 15 species of marine mammals by harassment. Neither Vineyard Wind nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. Description of Activity Vineyard Wind proposes to construct an 800 megawatt (mw) offshore wind energy project in the northern portion of Lease Area OCS-A 0501, offshore Massachusetts (Figure 1). In its request for an IHA, Vineyard Wind states that the project would consist of up to 100 offshore wind turbine generators (WTGs) and one or more electrical service platforms (ESPs), an onshore substation, offshore and onshore cabling, and onshore operations and maintenance facilities. Take of marine mammals may occur incidental to the construction of the project due to in-water noise exposure resulting from pile driving activities associated with installation of WTG and ESP foundations. BILLING CODE 3510-22-P EN25JN21.000 BILLING CODE 3510-22-C Vineyard Wind plans to install the WTGs and ESPs between May and November in the northeast portion of the 675 square kilometer (km 2 ) (166,886 acre) Lease Area, referred to as the Wind Development Area (WDA) (See Figure 1 in the IHA application). At its nearest point, the WDA is just over 23 km (14 mi) from the southeast corner of Martha's Vineyard and a similar distance from Nantucket. Water depths in the WDA range from approximately 37-49.5 meters (m) (121-162 feet (ft)). Construction of the project is planned to commence in May 2023. Up to 102 days of pile driving may occur between May 1 and November 30. Pile driving in December would only occur if unforeseen circumstances arise such that construction is not complete by November and the Bureau of Ocean Energy Management (BOEM) approves pile driving during December. No pile driving activities would occur from January 1 through April 30 under any circumstances. Two potential foundation types are proposed for the project: Monopiles and jackets. A monopile is a single, hollow cylinder fabricated from steel that is secured in the seabed while the jacket design concept consists of three to four steel piles, a large lattice jacket structure, and a transition piece. Piles for monopile foundations would be constructed for specific locations with maximum diameters ranging from ~8 m (26.2 ft) up to 10.3 m (33.8 ft) and an expected median diameter of ~9 m (29.5 ft). The piles for the monopile foundations are up to 95 m (311.7 ft) in length and will be driven to a penetration depth of 20-45 m (65.6-147.6 ft) (mean penetration depth 30 m (98.4 ft)). A schematic diagram showing potential heights and dimensions of the various components of a monopile foundation are shown in Figure 2 of the IHA application. Jacket foundations each require the installation of three to four jacket securing piles, known as jacket pin piles, of ~3 m (9.8 ft) diameter. The 3 m (9.8 ft) diameter jacket piles for the jacket foundations are up to ~65 m (213.3 ft) in length and would be driven to a penetration depth of 30-75 m (98.4-196.9 ft) (mean penetration depth of 45 m (147. ft)). A schematic diagram showing potential heights and dimensions of the various components of a jacket foundation are shown in Figure 3 of the IHA application. WTGs and ESPs may be placed on either type of foundation. Vineyard Wind has proposed that up to 100 WTG foundations may be constructed and that, of those 100 foundations, no more than 10 may be jackets. In addition, either one or two ESPs would be built on a jacket foundation (each foundation is comprised of four piles). Therefore up to 108 piles may be installed in the WDA. Vineyard Wind has incorporated more than one design scenario in their planning of the project. This approach, called the “design envelope” concept, allows for flexibility on the part of the developer, in recognition of the fact that offshore wind technology and installation techniques are constantly evolving and exact specifications of the project are not yet certain as of the publishing of this document. Variables that are not yet certain include the number, size, and configuration of WTGs and ESPs and their foundations, and the number of foundations that may be installed per day (a maximum of two foundations would be installed per day). The flexibility provided in the envelope concept is important because it precludes the need for numerous authorization modifications as infrastructure or construction techniques evolve after authorizations are granted but before construction commences. Under the maximum design scenario in Vineyard Wind's IHA application, where 100 WTGs are installed on monopiles, a total of as many as 108 piles may be driven ( i.e., 100 monopiles for WTG foundations and 8 pin piles for two ESPs). Specifications for both foundation types are shown in Table 1. Table 1—Foundation Types and Specifications for the Vineyard Wind Project Foundation type Pile diameter Pile length Penetration depth Maximum number that may be installed * Monopile ~8 to ~10.3 m (26.2 to 33.8 ft) ~60 m up to ~95 m (196.9-311.7 ft) 20-45 m (65.6-147.6 ft) 100 Jacket (4 piles each) 3 m (9.8 ft) ~65 m (213.3 ft) 30-75 m (98.4-196.9 ft) 2 * The total number of foundations installed would not exceed 102. For monopile installation, a typical pile driving operation is expected to take less than approximately three hours to achieve the target penetration depth. It is anticipated that a maximum of two monopiles could potentially be driven into the seabed per day. Concurrent driving ( i.e., the driving of more than one pile at the same time) would not occur. A detailed description of Vineyard Wind's planned construction activities is provided in the notice of proposed IHA (84 FR 18346; April 30, 2019). Since that time, Vineyard Wind has not proposed any changes to its construction activities through the IHA process. Therefore, a detailed description is not provided here. Please refer to that notice for the detailed description of the specified activity. Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting below). Modifications and additions to the mitigation and monitoring measures have occurred since the proposed IHA. All changes since the proposed IHA have been summarized in the Changes From Proposed IHA to Final IHA section and described in detail in their respective sections and/or the Comment Responses below. Comments and Responses A notice of proposed IHA was published in the Federal Register on April 30, 2019 (84 FR 18346). During the 30-day public comment period, NMFS received comment letters from the Atlantic Offshore Lobstermen's Association (AOLA), the Marine Mammal Commission (Commission), Gatzke Dillon & Ballance LLP representing ACK Residents Against Turbines, and a group of environmental non-governmental organizations (ENGOs) including Conservation Law Foundation, National Wildlife Federation, Natural Resources Defense Council, Defenders of Wildlife, Humane Society of the United States, Humane Society Legislative Fund, Whale and Dolphin Conservation, International Fund for Animal Welfare, Mass Audubon, NY4WHALES, and Inland Ocean Coalition. NMFS has posted the comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Please see those letters for full detail regarding the commenters' recommendations and underlying rationale. Comment 1: The Commission recommended that NMFS (1) authorize takes of the various marine mammal species that could occur during vibratory pile driving and (2) require Vineyard Wind conduct and report sound source and sound propagation measurements during vibratory pile driving and adjust the Level A and B harassment zones, as needed. Response: According to Vineyard Wind, vibratory driving is not planned and would only be used in extraordinary circumstances in the event that impact driving is not sufficient to ensure pile stability. Vineyard Wind is using a pile gripper to hold the pile in place during impact hammering. If that pile gripper fails (which is not anticipated), Vineyard Wind would either stand-down and fix the pile gripper or be forced to bring in a vibratory hammer to install the pile deep enough so that it is stable before moving to an impact hammer to finish installing the pile. This is an extremely unlikely scenario. As described in Vineyard Wind's application, if it becomes necessary to use a vibratory hammer, the average driving time to get the pile stabilized is anticipated to be 10 minutes (with a rare case of up to 30 minutes). Because use of a vibratory hammer would be extremely costly, this option would be utilized only if absolutely necessary and for the minimum amount of time possible (as necessary to repair the pile gripper). For those limited number of piles partially installed with a vibratory hammer, less strikes of the impact hammer would be required to fully install the pile. Because of stability issues, use of a vibratory hammer and impact hammer would occur on the same day. As vibratory driving is not considered likely to occur and, if it did occur, less impact driving would be necessary, we have determined that additional modelling specifically to generate an estimate of take for this unlikely, brief activity is not warranted. If this vibratory driving were to occur, and if any small number of marine mammals not already disturbed by the impact driving in the same day were taken, the existing conservative amount of take authorized is adequate to account for any take that may occur during vibratory pile driving. Likewise, we have determined that a requirement for vibratory driving sound source verification is not warranted given that it is unlikely that this activity will occur and, if it did, would occur only temporarily on a limited number of piles for a limited duration (approximately 10 minutes per pile). We anticipate that if Vineyard Wind determines that the unexpected use of a vibratory hammer is necessary, they will consult with NMFS upon making that decision. Comment 2: The Commission recommended that NMFS consult with external scientists and acousticians to determine the appropriate accumulation time that action proponents should use to determine the extent of the Level A harassment zones based on the associated [cumulative sound exposure level] SELcum thresholds for the various types of sound sources, including stationary sound sources and that NMFS make the issue a priority. Response: NMFS concurs with this recommendation and has prioritized the issue. As identified in the Commission's letter, NMFS has formed an internal committee to identify a more sophisticated approach for determining the extent of Level A harassment zones and is developing a proposal upon which additional internal and external review will be sought. Specific to this IHA, the Commission takes issue that the Level A harassment isopleth for jacket foundation installation (based on the installation of 4 piles in a 24-hour period) is greater than the Level B harassment isopleth and based on the extent of those zones, it is assumed that an animal would experience permanent threshold shift (PTS) before responding behaviorally and leaving or avoiding the area. However, the Commission simplifies application of the zone with such assumption in that they consider if an animal enters the Level A harassment zone, it would incur PTS upon entering, similar to how we consider the potential for Level B harassment to occur. This in fact is not the case, as the distance to the PTS isopleth represents the distance at which the animal would have to remain during installation of all four piles. NMFS recognizes calculating a zone based on work occurring over 24 hours is highly conservative; however, the zone does not represent the area in which PTS would occur simply if an animal enters the zone, as interpreted by the Commission. Further, Vineyard Wind conducted modeling using sophisticated sound propagation and animat modeling. The Commission identified in its letter that it supports the 24-hour approach if an action proponent is able to conduct more sophisticated sound propagation and animat modeling. Therefore, the Commission is contradictory in its comment specific to this action. NMFS has determined the modeling results represent likely zones by which we identify the potential for PTS and behavioral harassment to occur; however, NMFS appropriately considers the temporal component associated with the Level A harassment zone when considering the potential for PTS to occur. Comment 3: The Commission recommended that NMFS reassess the numbers of Level A harassment takes for low-frequency cetaceans and revise authorized take numbers such that the Level A harassment takes account for 77 percent of total takes for installation of monopiles and 100 percent of the total takes for jacket piles. Response: The Commission suggests that the ratio of authorized takes by Level A harassment to takes by Level B harassment for low-frequency cetaceans should exactly match the ratio of the Level A harassment to Level B harassment zone sizes. However, as noted in the Commission's comment, takes by Level A harassment and takes by Level B harassment are modeled differently, with the Level A harassment zones calculated with dual metrics ( i.e., SELcum and peak sound pressure level (SPL)). The Level A harassment zone cited by the Commission in their comment ( i.e., 3,191 m for impact driving for low-frequency cetaceans) is calculated with the SELcum metric and thereby incorporates a time component. As described in our response to comment 2 above, while this zone based on the SELcum metric is used as a conservative tool for modeling potential exposures above the Level A harassment threshold, an animal documented within that zone does not necessarily mean that animal was taken by Level A harassment when observed within that zone. In contrast, the takes by Level B harassment are based on an instantaneous step function wherein the animal could experience Level B harassment as soon as it is exposed to sound levels above the 160 dB re 1 microPascal (μPa) root mean square (rms) threshold. Therefore, directly comparing zone sizes is not an appropriate approach. Moreover, suggesting the amount of take allocated to Level A harassment and Level B harassment should be proportional to zone sizes is not reflective of what the zones represent and therefore would be a misrepresentation of potential effects on marine mammals. In addition, as noted in the proposed IHA and as described below, the authorized number of takes by Level A harassment are already considered conservative, as there were 0 takes by Level A harassment modeled for the majority of species (including with the SELcum metric) and, in some cases, we increased the authorized number of takes by Level A harassment from 0 to mean group size based on a conservative assumption that a group of each species may be taken despite the modeling results. Further, take estimate modeling does not account for mitigation and monitoring measures included in the IHA. Thus, we reject the Commission's recommendation as the authorized numbers of takes by Level A harassment are sufficient and do not warrant revision. Comment 4: The Commission recommends that NMFS reassess the numbers of Level B harassment takes for all species and authorize an appropriate number of takes relative to the extent of the Level B harassment zones, each species' occurrence in the area, and the 102 days that activities are proposed to occur. Response: The current numbers of takes by Level B harassment authorized are considered conservative for several reasons: Takes were modeled separately for each species through exposure modeling which was run for four separate construction scenarios and the largest resulting exposure number from the four scenarios was carried forward. Thus the number that was carried forward was from the “maximum case scenario” in terms of possible construction scenarios. All of the construction scenarios used in the modeling assumed 102 foundations would be installed when ultimately fewer foundations, resulting in fewer pile driving days, may be installed. For comparison, takes by Level B harassment were also calculated for each species using Vineyard Wind's observer data from site characterization surveys. Vineyard Wind reviewed monitoring data recorded during site characterization surveys in the WDA from 2016-2018 and calculated a daily sighting rate (individuals per day) for each species in each year, then multiplied the maximum sighting rate from the three years by the number of pile driving days under the Maximum Design scenario ( i.e., 102 days). This method assumes that the largest average group size for each species observed during the three years of surveys may be present during piling on each day. Then, the larger of the two take numbers calculated for each species ( i.e., through exposure modeling or calculated based on Vineyard Wind's monitoring data) was then carried forward as the authorized take number. For these reasons, the authorized take numbers by Level B harassment are sufficient, and we have determined that no revision to authorized numbers of takes by Level B harassment are warranted (aside from the minor revisions described in the Estimated Take section below). With respect to comparing the authorized amount of take here with HRG surveys, we find the Commission inappropriately compared the amount of take associated with HRG surveys to pile driving activities. The Commission made this recommendation based on the number of days without considering the daily amount of hours during which the activities occur. For example, 40 days of HRG surveys occur over a 24-hour period daily while pile driving associated with the Vineyard Wind project is limited to the installation of one to two piles per day (approximately 3 hours of pile driving per pile which is significantly less than 24 hours). While the number of hours of work per day is not part of the take calculation, it does play a role in making a direct comparison between take allocated for the two activities ( i.e., site characterization versus pile driving). Moreover, many delphinid species ( e.g., bottlenose dolphins) are attracted to HRG vessels, resulting in unavoidable take during the surveys. Impact pile driving; however, is not an activity expected to attract marine mammals. To compare the amount of take authorized from the proposed project to HRG surveys is inappropriate. Finally, while the Commission identifies the amount of take authorized to Bay State Wind for HRG surveys for some species ( e.g., bottlenose dolphins), the subsequent monitoring report required under Bay State Wind's IHA showed detections of only a small fraction of the number of marine mammals authorized for Level B harassment take (Bay State Wind, 2019). For the reasons stated above, we find the authorized amount of take to Vineyard Wind, by Level B harassment, is sufficient considering the scope of the project. Comment 5: The Commission recommended that NMFS require Vineyard Wind to (1) submit the results of the sound source measurements taken during installation of the first monopile for which sound attenuation devices are used and adjust the Level A and B harassment zones accordingly prior to proceeding with installation of any additional monopiles and (2) conduct sound source measurements at least monthly to ensure that the sound attenuation device continues to provide at least a 6-dB reduction in sound levels. Response: The IHA includes extensive acoustic monitoring requirements. The IHA requires that sound field measurements must be conducted during pile driving of the first monopile and first jacket foundation installed over the course of the project and that Vineyard Wind must provide the initial results of the field measurements to NMFS as soon as they are available. In the event that subsequently driven piles are installed that have a larger diameter, or, are installed with a larger hammer or greater hammer energy than the first monopile and jacket pile, sound field measurements must be conducted for those subsequent piles. If initial acoustic field measurements indicate distances to the isopleths corresponding to Level A and/or Level B harassment thresholds are greater than the distances predicted by modeling (as presented in the IHA application), Vineyard Wind must implement additional sound attenuation measures prior to conducting additional pile driving. Additionally, in the event that field measurements indicate distances the isopleths corresponding to Level A harassment and Level B harassment thresholds are greater than the distances predicted by modeling, Vineyard Wind must implement additional attenuation devices such that modeled harassment threshold distances (or smaller) based on a 6 dB reduction are realized in the field. If an additional device(s) still does not achieve the model results and Vineyard Wind has no other means to reduce noise levels ( e.g., reduced hammer energy), Vineyard Wind must expand the harassment zones to reflect field measurements, in consultation with NMFS. Regarding the Commission's recommendation to require Vineyard Wind to conduct sound source measurements at least monthly to ensure that the sound attenuation device continues to provide at least a 6-dB reduction in sound levels, we do not agree this is warranted. Vineyard Wind is required to conduct acoustic monitoring upon commencement of installing each foundation type and demonstrate that the piles monitored are done so under conditions that are reflective of conditions for other piles installed across the WDA ( e.g., similar substrate, hammer energy, etc.). If Vineyard Wind finds noise levels associated with the project are higher than modeled (assuming 6 dB attenuation), mitigative action is required and acoustic monitoring must continue. If noise levels are less than those predicted, Vineyard Wind must conduct monitoring on at least 3 monopiles and again demonstrate the pile monitored are installed under conditions representative of future piles to ensure any variability is captured. These measures are sufficient to ensure the sound field produced during pile driving is well understood throughout construction. Comment 6: The Commission recommended that NMFS require Vineyard Wind to conduct passive acoustic monitoring (PAM) at all times during which pile-driving activities occur and implement shutdowns when NARWs are detected within Level A harassment zones. Response: Vineyard Wind is required to conduct passive acoustic monitoring before, during and after all pile driving events. Pile driving must be delayed upon a confirmed PAM detection of a NARW, if the detection is confirmed to have been located within the relevant PAM clearance zones (Table 16a). Vineyard Wind is also required, in consideration of safety and pile integrity, that pile driving for both monopile and jacket foundation piles be shut down should a NARW be observed within 3.2 kms of the pile being driven; this distance represents the Level A harassment zone for monopiles (Table 16b). Because the Level A harassment zone for a jacket foundation represents the energy needed to incur PTS from the installation of four piles, implementing a shutdown zone based on this amount of work over the amount of time it takes to install four piles is unreasonable and not appropriate. Comment 7: The Commission recommended that NMFS require Vineyard Wind to cease activities if any marine mammal comes within 10 m of the equipment, particularly during pile placement; implement delay and shutdown procedures, if a species for which authorization has not been granted or if a species for which authorization has been granted but the authorized takes are met, approaches or is observed within the Level A and/or B harassment zone; and extrapolate the total number of marine mammals taken based on the distance to which visual observations can be made accurately and the extents of the Level A and B harassment zones. Response: Regarding the recommendation that NMFS require Vineyard Wind to cease activities if any marine mammal comes within 10 m of the equipment, we agree and have implemented this requirement in the IHA. The Commission provided a footnote (14) that this distance should be increased due to the size of Vineyard Wind piles; however, given the large clearance and shutdown zones in addition to the large bubble curtain encompassing the piles at distances greater than 10 m, we do not believe this recommendation is warranted simply because the piles are large. Regarding the recommendation that NMFS require Vineyard Wind to delay or shutdown pile driving if a species for which authorization has not been granted or if a species for which authorization has been granted but the authorized takes are met, approaches or is observed within the Level A harassment and/or B harassment zones, we have included a measure that Vineyard Wind must shutdown pile driving (as technically feasible) if such circumstances arise. Regarding the recommendation that NMFS require Vineyard Wind to extrapolate the total number of marine mammals taken based on the distance to which visual observations can be made accurately and the extents of the Level A and B harassment zones, we do not concur with the Commission's recommendation and do not adopt it as stated. The Commission does not explain why it believes Vineyard Wind should be required to extrapolate the total number of marine mammals taken other than it is “standard” which it is not. While NMFS previously included a requirement to report estimated takes based on an undefined extrapolation method in some inshore, estuarine construction project IHAs, we realized the assumptions and uncertainty surrounding this requirement preclude any meaningful analysis. Further, in those IHAs, NMFS did not consider those estimated takes to count against the total take authorized given the high degree of uncertainty surrounding the simplistic approach of estimating take based on the visible area compared to the estimated harassment area. The Commission does not provide recommendations for methods of generating such estimates in a manner that would lead to credible results. NMFS does believe that Vineyard Wind should report visibility and has included this requirement in the final authorization. NMFS is also requiring Vineyard Wind to report several details related to all observations of marine mammals, including if observed animals occurred within the Level B harassment zone during pile driving. These pieces of information—numbers of individuals of each species detected within the harassment zones and the estimated visibility—may be used to glean an approximate understanding of whether Vineyard Wind may have exceeded the amount of take authorized. Although the Commission does not explain its reasoning for offering these recommendations, NMFS recognizes the basic need to understand whether an IHA-holder may have exceeded its authorized take. The need to accomplish this basic function of reporting does not necessitate that NMFS require applicants to use methods we do not have confidence in to generate estimates of “total take” that cannot be considered reliable. To do so would require a number of assumptions resulting in a high degree of uncertainty regarding take and there would be very limited circumstances in which one could assume take occurred. Comment 8: The Commission recommended that NMFS refrain from using the proposed renewal process for Vineyard Wind's authorization and that NMFS provide the Commission and other reviewers the full 30-day comment opportunity. NMFS Response: Regarding renewals, NMFS issued a one-year IHA with the understanding that Vineyard Wind can complete the planned work for which the IHA authorizes take within the one-year period. As necessary, NMFS makes the decision of whether or not to issue a Renewal after one is requested based on current information, the best available science, and the renewal criteria described in the notice of the proposed IHA (84 FR 18346; April 30, 2019). NMFS may issue a one-time, one-year Renewal IHA if, upon review of the request for Renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid. If and when Vineyard Wind were to request a Renewal, NMFS would fully consider the best available information available at the time of the request (2023 or 2024) and whether the Renewal criteria could be met. NMFS did not include language in the final IHA related to Renewal. While this does not necessarily preclude a Renewal, we think a Renewal is unlikely in this case, given the potential for changes over the next three years that could affect our analyses. The Commission expressed concern that a renewal for complex projects would hinder the ability for the public to comment within the 15-day public comment period if a renewal is sought by the initial IHA Holder. NMFS maintains that the public has at least 30 days to comment on all proposed IHAs, with a cumulative total of 45 days for IHA Renewals. The Request for Public Comments section in the proposed IHA made clear that the agency was seeking comment on both the initial proposed IHA and the potential issuance of a Renewal for this project. Because any Renewal (as explained in the Request for Public Comments section) is limited to another year of identical or nearly identical activities in the same location (as described in the Description of Proposed Activity section) or the same activities that were not completed within the one-year period of the initial IHA, reviewers have the information needed to effectively comment on both the immediate proposed IHA and a possible one-year Renewal, should the IHA Holder choose to request one. While additional documents would be required should any such Renewal request be submitted, 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 confirm, among other things, that the activities will occur in the same location; involve the same species and stocks; provide for continuation of the same mitigation, monitoring, and reporting requirements; and that no new information has been received that would alter the prior analysis. The Renewal request would also need to contain a preliminary monitoring report, specifically 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. In addition to the IHA Renewal process being consistent with all requirements under section 101(a)(5)(D), it is also consistent with Congress' intent for issuance of IHAs to the extent reflected in statements in the legislative history of the MMPA. Through the provision for Renewals in the regulations, description of the process and express invitation to comment on specific potential Renewals in the Request for Public Comments section of each proposed IHA, the description of the process on NMFS' website, further elaboration on the process through responses to comments such as these, posting of substantive documents on the agency's website, and provision of 30 or 45 days for public review and comment on all proposed initial IHAs and Renewals respectively, NMFS has ensured that the public is “invited and encouraged to participate fully in the agency decision-making process.” Lastly, 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. Comment 9: ACK Residents Against Turbines (represented by Gatzke Dillon & Ballance LLP) stated that NMFS' analysis focused solely on construction-related impacts on marine mammals ( e.g., noise effects from pile-driving) and failed to evaluate the extent to which the operation of the project could affect marine mammals. Response: Vineyard Wind's request for authorization to take marine mammals was specific to one-year during construction of the project. The activities considered under this request are those associated with pile driving, which includes the use of vessels necessary to support pile installation. As required under 101(a)(5)(D) of the MMPA, NMFS assessed the impacts of the construction in supporting the issuance of an incidental take authorization for the construction phase. Vineyard Wind has not submitted a request for authorization to take marine mammals incidental to the operational phase of their project. Further, the IHA is valid for one-year, during which time operations would not occur. The MMPA is specific in that upon request, NMFS shall authorize, for periods of not more than one year, the incidental taking of marine mammals while engaging in a specified activity (in this case construction of the project) provided NMFS makes the necessary findings. NMFS has made the necessary findings (see Negligible Impact Analysis and Determination section) and therefore, in accordance with the MMPA, and upon request by Vineyard Wind, NMFS has issued a 1-year IHA for the take of marine mammals incidental to construction of the Vineyard Wind Project. In addition to our analysis under the MMPA related to the specified activity ( i.e., construction of the project), NMFS Greater Atlantic Regional Fisheries Office (GARFO) issued a Biological Opinion on September 11, 2020 that fully evaluated the effects of the construction, operation, maintenance, and decommissioning of the Vineyard Wind Project on ESA-listed species, including marine mammals. The Biological Opinion includes an assessment of the potential effects from WTG operations and concluded that noise from turbines operations is expected to be at or below ambient levels at relatively short distances from the foundations and that if ESA-listed marine mammals are exposed to operational noise, the effects on ESA-listed whales are considered insignificant ( i.e., so minor that the effect cannot be meaningfully evaluated or detected). Supporting activities such as vessel and aircraft operation would also occur during operation. The 2020 Biological Opinion concluded that ESA-listed marine mammals are either not likely to respond to vessel noise or are not likely to measurably respond in ways that would significantly disrupt normal behavior patterns that include, but are not limited to, breeding, feeding or sheltering. Therefore, the effects of vessel noise on ESA-listed marine mammals were also deemed to be insignificant. A similar finding was made for exposure to aircraft noise. In addition, NMFS is a cooperating agency on BOEM's EIS for the project and a co-signatory to the associated Record of Decision (ROD), issued on May 10, 2021. Under the National Environmental Policy Act (NEPA), BOEM, in coordination with NMFS, evaluated the direct, indirect, and cumulative effects of the proposed action which include construction, operation and decommissioning. See National Environmental Policy Act section below. Comment 10: ACK Residents Against Turbines stated that NMFS' analysis does not assess cumulative impacts on marine mammals, when considered in conjunction with other threats to marine mammals, including those posed by the other proposed wind farms adjacent to the Vineyard Wind leasehold. Response: Neither the MMPA nor NMFS' codified implementing regulations specifically call for consideration of other unrelated activities and their impacts on marine mammal populations. The preamble for NMFS' implementing regulations (54 FR 40338; September 29, 1989) states in response to comments that the impacts from other past and ongoing anthropogenic activities are to be incorporated into the negligible impact analysis via their impacts on the baseline. Consistent with that direction, NMFS has factored into its negligible impact analysis the impacts of other past and ongoing anthropogenic activities via their impacts on the baseline, e.g., as reflected in the density/distribution and status of the species, population size and growth rate, and other relevant stressors. Section 101(a)(5)(D) of the MMPA requires NMFS to modify, suspend, or revoke the IHA if it finds that the activity is having more than a negligible impact on the affected species or stocks of marine mammals. NMFS will closely monitor baseline conditions before and during the period when the IHA is effective and will exercise this authority if appropriate. Section 101(a)(5)(D) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity,” as opposed to other activities not specified in the request, 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 was the applicant for the IHA, and we are responding to the specified activity as described in their 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 through the section 7 consultation for ESA-listed species. In this case, cumulative impacts have been adequately addressed under NEPA in BOEM's Environmental Impact Statement regarding Vineyard Wind's proposed project. NMFS is a cooperating agency under NEPA on that EIS and has adopted the Final Environmental Impact Statement (FEIS) for purposes of issuing the IHA to Vineyard Wind. In addition, NMFS was a signatory to the associated Record of Decision issued on May 10, 2021. Separately, NMFS engaged in intra-agency consultation under section 7 of the ESA, which determined that NMFS' action of issuing the IHA is not likely to adversely affect listed marine mammals or their critical habitat. The resulting Biological Opinion considered activities both within and outside the scope of NMFS' IHA ( e.g., operation and decommissioning) and included Terms and Conditions aimed at reducing the potential impacts of the project on marine mammals, including NARWs. Comment 11: ACK Residents Against Turbines stated that the analysis of impacts to marine mammals from vessel strikes is inadequate and is based on an assumption that mitigation to prevent vessel strikes will be 100 percent effective. Response: Vineyard Wind did not request authorization for takes from vessel strikes and NMFS has not authorized any. NMFS analyzed the potential for vessel strikes to occur during construction and determined that vessel strike is unlikely to occur (not that there is no collision threat at all, as suggested by AKC), based on a combination of the low probability of a ship strike generally, and the extensive mitigation and monitoring included. The IHA also includes a provision that NMFS may modify, suspend or revoke the IHA if the holder fails to abide by the conditions prescribed herein (including, but not limited to, failure to comply with monitoring or reporting requirements), or if NMFS determines: (1) The authorized taking is likely to have or is having more than a negligible impact on the species or stocks of affected marine mammals or (2) the prescribed measures are likely not or are not effecting the least practicable adverse impact on the affected species or stocks and their habitat. We find that the prescribed measures are effecting the least practicable adverse impact on marine mammals; however, should an unanticipated ship strike occur (to any marine mammal), the IHA could be modified, suspended, or revoked. Vineyard Wind is planning on running a limited number of crew transfer vessels during construction and proposed a very conservative suite of mitigation measures related to vessel strike avoidance, including measures specifically designed to avoid impacts to right whales. Section 4(l) in the IHA contains a suite of non-discretionary requirements pertaining to ship strike avoidance, including vessel operational protocols and monitoring. Construction of the project will be based out of New Bedford, Massachusetts, which is a 50 to 60-mile (80 to 97 kilometers (km)) trip by vessel to the WDA. Vineyard Wind has indicated that during construction, the number of crew transfer vessels will be limited to two and that each of those vessels will make only one round trip per day (for a total of two round trips). To date, NMFS is not aware of a wind industry vessel ( e.g., marine site characterization survey vessel or wind energy vessels used in European wind project construction and operation) reporting a ship strike. When considered in the context of the low overall probability of any vessel strike given the limited additional vessel traffic, the comprehensive visual and PAM monitoring required in transit lanes, and that construction would occur during the time of year when NARW density is lowest, NMFS believes these measures are adequately protective to avoid ship strike; thus, we did not authorize take from ship strike. These measures are described fully in the Mitigation section below, and include, but are not limited to training for all vessel observers and captains, daily monitoring of the NARW Sighting Advisory System, WhaleAlert app, and USCG Channel 16 for whale presence awareness, communications protocols if whales are observed by any Vineyard Wind personnel, vessel speed restrictions at certain times of year or if certain monitoring requirements are not met, vessel operational protocols should any marine mammal be observed, and visual and passive acoustic monitoring to clear transit routes and WDA of NARWs. We have determined the mitigation measures in the IHA provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses. Comment 12: ACK Residents Against Turbines stated that the proposed mitigation measures are “inadequate and unenforceable” and that the proposed seasonal moratorium on pile driving ( i.e., from January through April) is “far too short.” Response: The mitigation measures included in the final IHA, including seasonal closures, are adequate and appropriate for the protection of NARWs and are enforceable. Despite the commenters' suggestion, NMFS does not intend to rely on the wind energy industry to police itself. If Vineyard Wind fails to implement any mitigation measure in the IHA and an unauthorized take occurs, Vineyard Wind will be in violation of the MMPA. NOAA's Office of Law Enforcement is responsible for investigating all violations of the MMPA, including any unauthorized takes that may occur during this project. In concluding the proposed seasonal pile driving moratorium of January through April is “far too short” the commenters incorrectly state that NARW densities are higher in May, June, and December than in January. However, as shown in Table 9, NARW densities during the months of the seasonal closure identified in the IHA (January: 0.510 per 100 km 2 ; February: 0.646 per 100 km 2 ; March: 0.666 per 100 km 2 ; April: 0.599 per 100 km 2 ) are higher than in May (0.204 per 100 km 2 ), June (0.016 per 100 km 2 ) and December (0.274 per 100 km 2 )) and, in fact, are by far the highest in those four months compared to any other months of the year (December has the next highest density at 0.274 per 100 km 2 ). In addition, Vineyard Wind has agreed to not pile drive in December unless extraordinary circumstances arise necessitating pile driving in December, and this is notified to and approved by BOEM. This measure is included in the IHA. Thus, the seasonal moratorium in the IHA minimizes the exposure of right whales to pile driving noise while allowing the project to move forward ( i.e., is practicable). In addition to the seasonal moratorium, enhanced mitigation measures for right whales (which are fully described in the Mitigation section below) include, but are not limited to, the following for times of year when pile driving may occur: • Pile driving must be delayed upon visual observation of a NARW by protected species observers (PSOs) on the pile driving vessel at any distance from the pile; • Pile driving must be delayed upon a confirmed PAM detection of a NARW, if the detection is confirmed to have been located within the relevant PAM clearance zone; • From May 1 through May 14 and November 1 through December 31 an extended clearance zone of 10 km is established for NARWs, monitored using real-time PAM, and an aerial or vessel-based survey must also be conducted that covers the 10 km extended clearance zone; • From May 1 through May 14 and November 1 through December 31, if a NARW is confirmed via visual observation or PAM within the 10 km extended clearance zone, pile driving must be delayed or shut down until the following day; and • Pile driving must shut down, if feasible, if a marine mammal enters a designated shut down zone. The commenters do not provide any recommendations regarding additional or different mitigation measures, or specifically explain why they believe the measures are unenforceable. NMFS has determined the mitigation measures in the IHA provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses (see Mitigation section below). Comment 13: AOLA commented that the IHA should consider the entire life cycle of the wind turbine generators (WTGs) and all potential sources of take ( i.e., acoustics, vessel strike, habitat changes, etc.) applicable to those phases. Response: As described above (Comment 9), we analyzed the potential for the take of marine mammals to occur during pile driving activities associated with the construction phase of the project, as identified in Vineyard Wind's application. We have therefore authorized the requested take as a result of the construction phase of the project, specifically pile driving activities. However, we note that the potential impacts of other phases of the project are fully analyzed in BOEM' Final EIS, which NMFS has adopted to satisfy our obligations under NEPA (see National Environmental Policy Act section, above) as well as NMFS 2020 Biological Opinion associated with this action for ESA-listed species. Vineyard Wind has the opportunity to submit an IHA application for operation or decommissioning activities, if appropriate. Comment 14: AOLA requested that NMFS consider recent survey data and any pre-construction data being collected in the analysis of risk to marine mammals. Response: We have relied on the best available scientific evidence in our analysis of potential impacts of the project on marine mammals and the development of take estimates, including recent survey data. For example, where survey data indicated take estimates may be higher than those modeled, we adjusted to represent the higher potential for take. We note that after the proposed IHA was published, updated NARW density data (Roberts et al., 2020) became available that incorporated more recent survey data (through 2018) and that for the first time included data from the 2011-2015 surveys of the Massachusetts and Rhode Island (M/RI) Wind Energy Areas (WEA) (Kraus et al. 2016) as well as the 2017-2018 continuation of those surveys, known as the Marine Mammal Surveys of the Wind Energy Areas (MMS-WEA) (Quintana et al., 2018). As this data represented new information that was deemed the best available information on NARW density in the project area, we based the exposure modeling for right whales in the final IHA on this new density data, for all possible construction scenarios, to confirm whether the incorporation of the new density data would result in a change to modeled exposure numbers. This is described in more detail in the Estimated Take section below. In addition, Pace et al. (2021) describes that the stock abundance of NARW is lower than that considered when the proposed IHA was published and we have evaluated that new information. In developing the final IHA, NMFS also consulted the NARW sighting database, WhaleMap, which aggregates both visual and acoustic sighting information from 2010 to present day. Contributors to the database include the Department of Fisheries and Oceans Canada, Transport Canada, NOAA's Protected Species Branch, Woods Hole Oceanographic Institution/robots4whales, New England Aquarium, Center for Coastal Studies, Candadian Whale Institute, Mingan Island Cetacean Study, Ocean Tracking Network, Dalhouise University, University of New Brunswick, and Nike Hawkins Photography, making it an extensive database and useful tool in identifying spatial and temporal occurrence of whales as well as locations and timing of management actions such as implementation of Dynamic Management Areas (DMAs). NMFS invests heavily in conserving NARWs and, in analyzing the impacts to NARWs from project construction, has considered and leveraged the wealth of data collected by NOAA and partners to make conservative management decisions in consideration of our statutory authority under the MMPA. Despite the changes in density and population numbers noted above, when the proposed IHA was issued, the status of NARWs was critically endangered and this remains true today. We have applied the best available (and most recent) science and have made the determinations necessary to issue the IHA. Comment 15: AOLA commented that it was concerned that the real-time PAM system has not yet been developed and will only be “used to inform visual monitoring during construction; no mitigation actions would be required on PAM detection alone” and asked whether the IHA would be contingent on vetting the design and operation of the currently hypothetical system by experts in the field. Response: As described in the Mitigation section, the real-time PAM system will not only be used to inform visual monitoring, but will also trigger required mitigation actions under certain circumstances. For instance, as described above and as described more fully under the Mitigation section below, from May 1 through May 14, an extended clearance zone of 10 km must be established for NARWs using real-time PAM, and any detection of a NARW via real-time PAM within that 10 km clearance zone would trigger immediate delay or shutdown of pile driving. Regarding the request that the design of the real-time PAM system be vetted by experts in the field, while the commenters do not provide any specific recommendations regarding who should be consulted on the design and operation, we note that the IHA requires that a Passive Acoustic Monitoring Plan, which must describe all proposed PAM equipment, procedures, and protocols including those related to real-time PAM, must be submitted to NMFS for review and approval at least 90 days prior to the planned start of pile driving. Comment 16: AOLA recommended NOAA or BOEM create a third-party certification program for PSOs, similar to the system used for fishery observers, which sets universal standards for all wind projects and requires reporting after each construction activity/trip. Response: At this time, NMFS is not creating a third-party certification program for PSOs. Each IHA requires all PSOs must be approved by NMFS, and that Vineyard Wind must submit PSO resumes to NMFS for approval at least 60 days prior to commencing pile driving activity. A full list of qualifications required of PSOs is included in Vineyard Wind's IHA. For example, PSO must have a degree in biological sciences and experience and/or training working as a PSO. The lead PSO must have experience as a PSO in an offshore environment. All PSO qualification requirements can be found in the Monitoring and Reporting section and the issued IHA. BOEM and NMFS are also working on developing consistent data reporting requirements for the offshore wind industry. Comment 17: AOLA recommended that all pile driving activity should cease when a NARW is observed within 5 miles (8 km) of a pile being driven, and that all shutdowns called for by a PSO should be reported to NOAA daily with detailed explanation when shutdowns were not deemed feasible. AOLA also recommended that further mitigation should be immediately required if NMFS finds continued pile driving to cause unauthorized risk to marine mammals. Response: The commenters' recommendation for a 5 mile (8 km) shutdown zone is not supported or warranted. First, we have already included a requirement in the IHA that pile driving be delayed upon a visual detection of a NARW by PSOs on the pile driving platform at any distance from the pile, at any time of year. In addition, as noted above and as described fully in the Mitigation section below, the IHA also requires a 10 km clearance zone (larger than the zone recommended by the commenters) during the seasons when NARW abundance is greatest (November-December (although VW would avoid pile driving in December except in unforeseen, extraordinary circumstances) and May 1 through May 14). Further, during these periods, if a NARW is detected within the 10 km extended clearance zone (via visual observation or PAM), pile driving must be delayed. Pile driving must not resume until the following day, or, until a follow-up aerial or vessel-based survey is able to confirm all right whale(s) have departed the 10 km extended clearance zone, as determined by the lead PSO. NMFS also added a minimum shutdown distance of 3.2 km, which is a conservative estimate to the Level A harassment isopleth, more than half the distance to the Level B harassment isopleth for NARWs, and is a practicable shutdown zone. Regarding the recommendation that all shutdowns called for by a PSO should be reported to NOAA daily with detailed explanation when shutdowns were not deemed feasible, we have determined that this is not necessary as the IHA requires weekly and monthly monitoring reports which will include a summary of any mitigation-related actions ( e.g., delay, shutdown, etc.) called for by PSOs but not implemented, and the reason why the mitigation-related action was not implemented. Regarding the recommendation that further mitigation should be immediately required if NMFS finds continued pile driving to cause unauthorized risk to marine mammals, we note that the IHA explicitly identifies that the taking by serious injury or death of any of the species for which take is authorized or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of the IHA. If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the Level B harassment zone, Vineyard Wind is required to delay or shutdown pile driving activities (when technically feasible) to avoid unauthorized take. Further, the IHA may be modified, suspended, or withdrawn if Vineyard Wind fails to abide by the conditions prescribed in the IHA, or, if NMFS determines that the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals. Comment 18: AOLA recommended that the IHA require a mandatory 10 nautical miles per hour (knots; kts) (18.52 nautical km per hour) speed restriction on all vessels in all leased areas of the RI/MA WEA when right whales are present. Response: As noted above (see Comment 11) and as described fully in the Mitigation section below, we have included a suite of mitigation measures related to vessel speed to minimize potential impacts to marine mammals and to NARWs in particular. The mitigation measures in the IHA prescribe the means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Comment 19: The ENGOs recommended that NMFS: (1) Fund analyses of recently collected sighting and acoustic data for all data-holders; and (2) continue to fund and expand surveys and studies to improve our understanding of distribution and habitat use of marine mammals off Rhode Island and Massachusetts, including the Project area, as well as the broader region, in the very near future. Response: We note that this is a general comment not specific to Vineyard Wind's IHA. NMFS executes, funds, and coordinates several marine mammal studies throughout the Northeast to improve our understanding of marine mammals distribution and habitat use. The primary entity charged with doing so is the Northeast Fisheries Science Center; however, NMFS Office of Protected Resources and GARFO also contribute to studies on marine mammals. These are continuing ongoing efforts. For example, through the Atlantic Marine Assessment Program for Protected Species (AMAPPS), the NEFSC is developing models and tools to provide seasonal abundance estimates that incorporate environmental habitat characteristics for marine mammals and other protected species in the western North Atlantic Ocean, including Rhode Island and Massachusetts. With respect to funding analyses of recently collected sighting and acoustic data for all data-holders, the ENGOS did not identify which data holders or which data they are referring to. Because data on marine mammals in the project area are collected in different ways ( e.g., from PSOs, systematic aerial surveys, anecdotal sightings, stranding reports); it is not possible to integrate all the data on marine mammals. Therefore, it is unclear what type of analyses the ENGOs are referring to. However, NMFS is committed to improving our understanding of distribution and habitat use of marine mammals. NMFS and its many partners (including the government of Canada) already, and continue to, submit all survey reports (effort and sightings) to the NARW Consortium Database maintained by the University of Rhode Island for inclusion in the sightings database and those with photographs are also submitted to the New England Aquarium for integration into a unified photo-identification catalog. Most field research teams match their photographs to this catalog during their field efforts. In addition, NMFS is developing systematic data collection methods, where possible, to maximize the use of those data in conservation and management decisions. For example, with funding from the Marine Mammal Commission, NMFS is currently working with the New England Aquarium to analyze offshore wind site characterization survey PSO data and how those data compare to more systematic, line transect surveys. The results of this project will include recommendations about how PSO data can be collected to provide the greatest conservation value for protected species and recommendations about how PSO data can be utilized for regulatory/ management and scientific purposes. More information on this project can be found at https://www.mmc.gov/grants-and-research-survey/grant-awards/2020-grant-awards/ . Comment 20: Regarding NMFS' requirement that pile driving be postponed until the following day if a NARW is detected by real-time PAM or a vessel-based or aerial survey within 10 km of the pile driving location from May 1-May 14, the ENGOs recommended NMFS remove the exception that allows the activity to resume the same day if an aerial or vessel-based survey could confirm that the extended clearance zone is free of right whales. They assert that as many NARW sightings go unseen, resuming the same day is too risky. Response: NMFS disagrees that PAM and a visual survey (either vessel or aerial) would not result in adequate protections for NARWs. First, the ENGOs do not acknowledge there will be additional monitoring efforts. PSOs at the pile driving vessel will monitor for NARWs, Vineyard Wind is required to monitor the NARW sighting network, USCG Channel 16, etc., and all Vineyard Wind vessels will have observers. The project area is a known foraging area but it is also a migratory corridor and we anticipate NARWs may remain in the area or pass through rather quickly. If a whale(s) remains, it is likely to be detected by PAM, vessel or aerial surveys, or the pile driving PSO in which case pile driving would not commence. If it is migrating, there is no reason for pile driving to be delayed an additional day as animals may move quickly through the area. For example, in 2000, one whale was photographed in Florida waters on January 12th, then again 11 days later (January 23rd) in Cape Cod Bay, less than a month later off Georgia (February 16th), and back in Cape Cod Bay on March 23rd, effectively making the round-trip migration to the Southeast and back at least twice during the winter season (Brown and Marx 2000). Further, if any animal is missed and pile driving does begin while the NARW is within the Level B harassment zone, we have analyzed the impacts to that individual and have concluded any impacts would be minor in that no fitness consequences are likely (see Negligible Impact Analysis and Determination section). We have also identified that pushing any pile driving to times when NARWs are more likely to be present in greater numbers would result in unnecessary impacts as the potential for take is higher and pile driving could occur over a longer timeframe. Comment 21: The ENGOs recommended that PAM be required for 60 minutes prior to commencement of pile driving. Response: We agree with the recommendation and have incorporated this requirement in the IHA. The IHA requires that acoustic monitoring begin at least 60 minutes prior to initiation of pile driving. See the Mitigation section below for details. Comment 22: The ENGOs recommended that the mitigation requirements include NARW acoustic detections as a shutdown trigger. Response: We agree with the recommendation and have incorporated this requirement in the IHA. The IHA requires that pile driving be delayed or shut down upon a confirmed acoustic detection of a NARW within the relevant exclusion zone. See the Mitigation section and Table 16 for details. Comment 23: The ENGOs recommended that between November 1 and May 14, upon a confirmed sighting of a NARW, vessels should be required to reduce their speed to 10 kts or less for the remainder of the day, and to use real-time PAM in order to more accurately detect the presence of right whales. They also recommended PAM be used in transit corridors. Response: The IHA includes several scenarios under which vessels are required to travel at 10 kts or less and requires use of real-time PAM at all times. The IHA requires that from November 1 through May 14, all vessels, regardless of size, must travel at less than 10 kts within the WDA. In the transit corridor, crew transfer vessels must reduce speed to 10kts if the PAM system within the corridor detects a NARW or one is sighted from the vessel. Further, any vessel traveling over 10 kts is required to have a dedicated observer(s) on board at all times. Crew transfer vessels traveling within any designated DMA must travel at 10 kts or less, unless NARWs are clear of the transit route and WDA for two consecutive days, as confirmed by vessel based surveys conducted during daylight hours and real-time PAM, or, by an aerial survey, conducted once the lead aerial observer determines adequate visibility. If confirmed clear by one of the measures above, vessels transiting within a DMA must employ at least two visual observers to monitor for NARWs. Vineyard Wind is required to submit a Vessel Strike Avoidance Plan to NMFS for approval no later than 90 days prior to utilizing vessels which will include details regarding monitoring and the PAM systems in both the WDA and transit corridors. We note submission of such a plan was not included in the proposed IHA. Comment 25: The ENGOs recommended that the IHA require reporting of NARW sightings to NMFS within 2 hours of the sighting. Response: We agree with the recommendation that NARW sightings be reported as soon as possible to NMFS. The IHA requires that if a NARW is observed at any time by PSOs or personnel on any project vessels, during any project-related activity or during vessel transit, Vineyard Wind must report sighting information to the NMFS NARW Sighting Advisory System, the U.S. Coast Guard via channel 16, and WhaleAlert app as soon as feasible but no longer than 24 hours after the sighting. We anticipate that most sightings will be reported within the 2 hour timeframe recommended by the ENGOs; however, we also recognize that communications at sea can sometimes be interrupted ( e.g., poor cellular or satellite service); therefore, we are allowing 24 hours maximum (with the caveat they report a sighting as soon as feasible) in case such. We note that given the gravity of a situation associated with an unauthorized take from a ship strike, the IHA requires Vineyard Wind to report any such taking to NMFS immediately, dedicating all resources to ensure that incident is reported. Such dedication, including immediately ceasing activities (as required if a ship strike occurs) is not necessary for a sighting report. See the Mitigation section below for details. Comment 26: The ENGOs recommended that the take analysis be updated to reflect the best available scientific information to account for evidence supporting the importance of the waters off Massachusetts and Rhode Island as NARW foraging habitat, and to more accurately reflect times that right whales are likely to be present in the area. The ENGOs further recommended that NMFS consider any initial data from state monitoring efforts, passive acoustic monitoring data, opportunistic marine mammal sightings data, and other data sources, and to take steps to develop a dataset that more accurately reflects marine mammal presence so it is in hand for future authorizations. Response: As noted above, updated NARW density data (Roberts et al., 2020) that incorporated more recent survey data and that for the first time included survey data from the MA and RI/MA WEAs (Kraus et al. 2016; Quintana et al., 2018) became available after the proposed IHA was published. The exposure modeling for NARWs in the final IHA was updated to incorporate this more recent and more accurate density data which reflects year-round presence in the project area (albeit highest densities are when pile driving would not occur). Habitat use is indirectly considered in density estimates as the estimates are based on sighting data and those data would reflect if animals are remaining ( i.e., present) within an area for prolonged periods; thereby, increasing density. If animals are remaining in the area, it can be assumed they are engaging in critical behaviors such as foraging. We note; however, habitat use is directly considered in our Negligible Impact Analysis and Determination section. We have used the best scientific information available as the basis for generating take numbers for all marine mammal species. This is described in more detail in the Estimated Take section below. In our negligible impact analysis (see Negligible Impact Analysis and Determinations section), we identify how habitat use is factored into our determinations given the type and amount of take authorized. Regarding the recommendation to consider initial data from other monitoring efforts and to take steps to develop a dataset that more accurately reflects marine mammal presence so it is in hand for future authorizations, we considered all data sources and did not solely rely upon density data when estimating take as the ENGOs suggested we did. For example, we increased the amount of take authorized for some species from the modelling results in consideration of HRG survey monitoring data previously collected by Vineyard Wind. In other cases, when model results suggested take was less than average group size, take was increased. NMFS will continue to rely on the best available scientific information in both the analysis of potential impacts to marine mammals and in the development of exposure estimates and our findings. Comment 27: The ENGOs recommended that vessel strikes be incorporated into the take analysis. The ENGOs also recommended that the potential for vessel strike resulting from displacement as a result of project-related noise be considered. Response: NMFS analyzed the potential for vessel strikes to occur during Vineyard Wind's construction and determined that it is not likely to occur. We do not authorize any take of marine mammals by vessel strike incidental to Vineyard Wind's planned construction activities under this IHA. Also as described under Comment 10 above, we have included a conservative suite of mitigation measures related to vessel strike avoidance, including measures specifically designed to avoid impacts to NARWs. These measures ( e.g., reduced vessel speed) also provide protection for other marine mammals. All ship strike avoidance measures are described fully in the Mitigation section below. Regarding the commenters' recommendation to consider displacement as a result of project-related noise to result in vessel strike, we have considered this possibility and have concluded that while short-term displacement from the project area is a possibility, there is no evidence to suggest that any short-term displacement would result in a change to the likelihood of vessel strike occurring for any marine mammal species. The amount of vessels utilized by Vineyard Wind during the effective period of the IHA results in only a small increase in vessel traffic over baseline ( e.g., two crew transfer vessels making one round trip per day). Comment 28: The ENGOs recommended that NMFS avoid describing potential changes resulting from offshore wind development as “beneficial,” as it is unclear what implications these changes may have on the wider ecosystem, and instead use terminology such as “increase,” “decrease,” and “change.” Response: In the proposed IHA notice, NMFS identified that impacts from the permanent structures ( i.e., WTGs) on marine mammal habitat may be beneficial as a result of increased presence of prey due to the WTGs acting as artificial reefs (Russell et al., 2014). However, we recognize, the long-term impact from foundation presence is outside the scope of the effective period of the IHA and that this analysis is more appropriate in the context of the ESA consultation and NEPA analysis as it relates to marine mammal habitat. Regarding the EIS, we agree that the long term ecosystem effects from offshore wind development in the Northwest Atlantic are still being evaluated and that those ecosystem effects are likely to be complex. Accordingly, we acknowledge that documentation of a change that may appear “beneficial” ( i.e., an increased number of a particular species documented within a wind development area) does not necessarily equate to overall beneficial impacts to a species or ecosystem. BOEM's FEIS describes impacts to coastal and benthic habitats as being adversely negligible to moderate, as defined in the FEIS. That said, just as there are potential negative impacts to marine mammals from noise associated with offshore wind construction, there are also potential benefits that may result from the presence of wind turbine foundations in marine mammal habitat. Thus, BOEM also concluded that some impacts from the Project can be moderately beneficial for those habitats. Thus, while we acknowledge that there is currently insufficient information to draw a conclusion regarding longer term impacts to marine mammals, we disagree with the commenters that the term “beneficial” should be avoided altogether when describing potential outcomes of offshore wind for marine mammals. Comment 29: The ENGOs recommended that NMFS' negligible impact determination consider potential cumulative impacts arising from the construction of the proposed project and additional offshore wind projects that are expected to be installed in the future. Specifically, they recommended a cumulative effects analysis include consideration of repeated disturbance from the same activity over time and space, interactions between different types of potential impacts, multiple wind energy development projects, and the broader context of other ocean uses within the leasing area and that may be encountered by transboundary and migratory species during their life cycles. Response: NMFS agrees that consideration of repeated disturbance from the same activity (as identified in the application) over time and space should be incorporated into a negligible impact determination and we have done so as the impact of the specified activity on marine mammals must be considered in accordance with 101(a)(5)(D) of the MMPA. However, neither the MMPA nor NMFS' codified implementing regulations require NMFS to consider impacts from other unrelated activities (such as the construction and operation of additional wind farms) 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 current stressors. In addition, we consider these factors as relevant contextual elements of the analysis. See the Negligible Impact Analysis and Determinations section of this notice for full detail. Section 101(a)(5)(A) 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, and will not result in an unmitigable adverse impact on the availability of marine mammals for taking for subsistence uses. NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity 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 is the applicant and we are responding to the specified activity as described in their petition (and making the necessary findings on that basis). Our 1989 final rule for the MMPA implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There we stated that such effects are not considered in making findings under section 101(a)(5) concerning negligible impact. We 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 addition to above considerations, BOEM's 2021 FEIS, of which NMFS was a cooperating agency, NMFS adopted, and was a co-signatory to the joint Record of Decision, analyzes cumulative impacts from the construction and operation of the Vineyard Wind Project when combined with other past, present and reasonably foreseeable future actions, including development of other wind energy areas and other stressors ( e.g., ship strike, entanglement, climate change). That analysis included an assessment of whether the predicted level and amount of take from construction would have meaningful biological consequences at a species or population level. NMFS, therefore, assessed and integrated other contextual factors ( e.g., species' life history and biology, distribution, abundance, and status of the stock; mitigation and monitoring; characteristics of the surveys and sound sources) in determining the overall impact of issuance of the IHA to Vineyard Wind. While exposure to noise during construction could temporarily affect marine mammals, the extensive mitigation (including those measures designed to avoid vessel strike) would minimize the severity and amount of harassment such that no meaningful biological consequences would occur. Similar findings were made in NMFS' 2020 Biological Opinion related to this action. The effects of the action analyzed in the 2020 Biological Opinion reflect all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. It considered whether the action will result in reductions in reproduction, numbers or distribution of these species and then considered whether any reductions in reproduction, numbers or distribution resulting from the action would reduce appreciably the likelihood of both the survival and recovery of these species. The Biological Opinion concluded the proposed action, which included NMFS' action of issuing an IHA to Vineyard Wind, may adversely affect ESA-listed marine mammals but would not likely jeopardize the continued existence of those species or adversely modify or destroy their critical habitat. We note the analysis in BOEM's FEIS and Biological Opinion extends over the duration of the project while our IHA is limited to one year, and to harassment during construction of the project. Comment 30: The ENGOs recommended NMFS expand its analysis to better consider repeated exposure to the same stressor over multiple days, as well as masking and acoustic habitat impacts. Response: As described above, the potential impacts from repeat exposures are incorporated into our negligible impact analysis. As described in the Negligible Impact Determination and Analysis section below, although some animals may be disturbed repeatedly from pile driving over multiple days, we anticipate the impact on marine mammals from resulting behavioral reactions such as temporary avoidance of the ensonified area during pile driving would not result in impacts to reproductive success of any individual marine mammal, much less annual rates of recruitment and survival. For large whales, including the NARW, we authorize only a small number of Level B harassment takes. For example, Vineyard Wind is authorized for 20 takes by Level B harassment of NARW. Each take represents exposure of one NARW above NMFS behavioral harassment threshold (and the expected associated behavioral disturbance) occurring within one day. While 20 instances of take is the maximum anticipated and authorized, we do not know whether these 20 takes occur to 20 different individual NARWs (each taken on one day) or if some individuals might be taken on more than one day, but we do know that the product of individual whales times days of disturbance cannot exceed 20 ( e.g., 20 different whales disturbed on 1 day each, 10 different whales disturbed on two days each, etc.), and given the number, it is unlikely that any single whale would be disturbed on more than a few days. Given Vineyard Wind would be pile driving primarily June through October (with limited pile driving in May and November) it is highly unlikely that any single whale would be taken 20 times. Thus any instances of repeated disturbance would be minimal. For smaller cetaceans, their populations are relatively large compared to baleen whales and they have large habitat ranges; therefore, repeated disturbance to a degree that would cause impacts to annual rates and survival to those populations is also unlikely. The impacts of masking and impacts to marine mammal acoustic habitat from the specified activity were fully considered in the Federal Register notice announcing the proposed IHA (see sections entitled Auditory Masking and Potential Effects of the Specified Activity for discussions on masking; see section entitled Anticipated Effects on Marine Mammal Habitat for discussion on potential impacts to acoustic habitat). That analysis was integrated into our negligible impact finding decision-making. For example, we found that impacts from masking would be insignificant and any masking event that could possibly rise to Level B harassment under the MMPA would occur concurrently within the zones of behavioral harassment already estimated for impact pile driving, and which have already been taken into account in the exposure analysis. The temporary elevated noise levels caused by the project would impact acoustic habitat; however, similar to masking, these elevated noise areas are captured in the behavioral harassment zones established in our analysis. Comment 31: The ENGOs believe that NMFS' use of a Renewal IHA process does not allow for adequate public comment because NMFS supplies no legal rationale for why it is authorized to issue an identical IHA for a second year while cutting in half the comment period the statute requires. They state that should the agency wish to establish its new IHA renewal process as a reasonable interpretation of an ambiguous statutory provision, it should do so through notice-and-comment rulemaking or comparable process with the appropriate indicia of formality. NMFS must also explain why applicants whose activities may result in the incidental harassment of marine mammals over more than one year should not be required to apply for authorization to do so through the incidental take regulation procedure established by sec. 101(a)(5)(A)(i), and justify how its extension process, with a curtailed comment period, is consistent with both statutorily-established processes. Response: In prior responses to comments about IHA Renewals ( e.g., 84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS has explained how the Renewal process, as implemented, is consistent with the statutory requirements contained in section 101(a)(5)(D) of the MMPA and promotes NMFS' goals of improving conservation of marine mammals and increasing efficiency in the MMPA compliance process. Also, please see our response to Comment 8 for additional information. The ENGOs recommended we utilize a stand-alone rulemaking process to solicit input on the renewal process so that it is open to public comment. However, using the 30-day public comment period for an IHA to provide relevant explanations of the Renewal process and also announce the option to issue a Renewal to an applicant for a specific project is an effective and efficient way for NMFS to provide information to the reader, solicit focused input from the public, and ultimately affords the same opportunities for public comment as a stand-alone rulemaking would. The ENGOs have the opportunity to comment on the potential Renewal, and, by default, the process during the proposed IHA phase. There is no reason to undertake a rulemaking process to carry out a process that is afforded under the MMPA and for which NMFS has discretion to carry out. The eNGOs have not provided reason why the 30 day public comment period during the proposed IHA phase plus the additional 15-day public comment during a proposed Renewal IHA phase (which generally occurs less than one year after the initial 30-day public comment period) for a total public comment period of 45 days does not meet the requirements of the MMPA. The Renewal process does not allow for an IHA to cover applicants intending on conducting activities for more than one year, as mistakenly interpreted by the eNGOs. Rather, the FR notice for the initial 30-day comment period for the proposed IHA asks the public to review and provide input on both the initial proposed IHA, as well as the potential for a Renewal should the Renewal conditions be met, following an additional 15-day comment period. It would be unnecessary and inefficient for both the applicant and NMFS to require them to go through a rulemaking process in case their project extended beyond the expiration date of their IHA. The most common cases of issuing a Renewal IHA is when there are unforeseen circumstances that prevent the applicant from completing the analyzed activity from being completed before the expiration date of the original IHA. As noted in the response to Comment 8 above, there are strict criteria NMFS has set forth that an applicant must meet prior to being granted a Renewal IHA. Specific to the Vineyard Wind IHA, any request for a Renewal by Vineyard Wind, will be considered against established and transparent Renewal criteria, including the careful consideration of any changes in the status of the affected species or stocks and whether they would change our findings. Changes From Proposed IHA to Final IHA Since publication of the Proposed IHA (83 FR 18346, April 30, 2019), Vineyard Wind has split into separate corporate entities, Vineyard Wind, LLC (the applicant identified in the IHA application), and Vineyard Wind 1, which now holds assets associated with the project. While the application and the proposed IHA identify Vineyard Wind, LLC as the potential IHA Holder, NMFS has issued, upon request from Vineyard Wind, LLC, the IHA to Vineyard Wind 1. In the final IHA, NMFS Office of Protected Resources adopted the Terms and Conditions of the November 2020 Biological Opinion for the Vineyard Wind Project and made other modifications as a result of public input on the proposed IHA, which resulted in several changes to mitigation and monitoring measures from proposed to final. We provide a summary here, and the changes are also described in the specific applicable sections below ( e.g., Mitigation). A complete list of final measures may be found in the issued IHA (available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable ). Vineyard Wind has committed to adding December to the seasonal pile driving moratorium window. However, to be practicable, in the case of unanticipated delays due to weather or technical problems that require extension of pile-driving activities, pile driving may occur in December if BOEM is notified and approves. In consideration of the best available science and public input, NMFS has increased clearance zone sizes from the proposed IHA to ensure Level A take of NARWs is avoided and that any Level B harassment is minimized to the maximum extent practicable. During all times of the year, if a PSO on the pile driving vessel observes a NARW, at any distance, pile driving will be delayed. However, we recognize in certain circumstances, weather may impede visibility. From June 1 through October 31, we increased the minimum clearance zone ( i.e., the zone that must be visibly clear of NARWs for 30 minutes prior to commencing pile driving) from 1 km (which Vineyard Wind had proposed as a result of their Agreement with NGOs) to 2 km. In addition, we have imposed a 5 km PAM clearance zone during the same time of year. In addition to modifications to the clearance zone, we have extended the shutdown zone ( i.e., the zone in which Vineyard Wind must shut down pile driving if a NARW approaches or enters, except if not deemed feasible for human safety or structural integrity) for NARW from 1 km to 3.2 kms. The 3.2 km shutdown zone represents the modeled Level A harassment zone assuming a 6 dB of attenuation from the sound attenuation systems. That is, this distance represents where a NARW could incur PTS if it remains at that distance for the number of strikes considered in the model ( i.e., the maximum number of strikes for installing a pile). To be conservative, we have identified this distance as the initial shutdown zone; however, should sound source verification (SSV) monitoring determine the Level A harassment isopleth is less than 3.2 km, NMFS may modify the shutdown zone upon receipt of a SSV report detailing measurements from, at minimum, three piles representing conditions reflective of future piles driving scenarios ( e.g., similar substrate, hammer energy, etc.). The final IHA also incorporates all Terms and Conditions of the 2021 Vineyard Wind Biological Opinion. These include not starting to install a new pile less than 1.5 hours prior to civil sunset and that pile driving may only occur at night if pile driving began during daylight hours and the relevant visual and PAM clearance zone were clear of NARWs. We also carried over the suite of vessel strike avoidance measures considered part of the proposed action in the Biological Opinion. These include mandatory ship speeds and separation distances, use of trained dedicated observers, PAM in the transit corridors, and monitoring of the NARW Sighting Network. From proposed to final IHA, we modified take numbers for sperm whales. The proposed IHA allocated two takes, by Level A harassment ( i.e., PTS) of sperm whales incidental to pile driving, as it was requested by Vineyard Wind. However, after further examination, we have determined the potential for Level A harassment (PTS) for this species is de minimis and we have not authorized take by Level A harassment. The area is not a preferred sperm whale habitat as they prefer deeper waters and bathymetric features such as canyons. The monopile and jacket foundation Level A harassment distance for sperm whales is very small (less than 75 m). It is highly unlikely that a sperm whale would remain within this area during the entire duration of pile driving necessary to incur PTS and we have required clearance and shut down zones greater than 75 m. In addition, in the 2020 Biological Opinion, NMFS concluded take of sperm whales by Level A harassment was not reasonably certain to occur and determined no take by injury (PTS) will be exempted in the corresponding Incidental Take Statement issued under the ESA. The final IHA identifies the amount of take authorized for non-listed marine mammals should Vineyard Wind install 100 WTG monopile foundations and two jacket foundations for the ESPs (the maximum design envelope), though fewer WTG foundations will be installed. The ESA incidental take statement (ITS), which NMFS Office of Protected Resources is required to implement, will be scaled so that the amount of ESA-listed marine mammal take authorized will correspond with the actual amount of piles planned to be installed. Thus, if Vineyard Wind installs fewer piles, it will be exempted from the ESA section 9 prohibition on take for a fewer number of ESA-listed marine mammals (see Endangered Species Act section below). The amount of take authorized for non-listed marine mammals is not scaled. NMFS did not include language in the final IHA related to a Renewal. This does not necessarily preclude a Renewal, but as described above, we think a Renewal is unlikely in this case, given the potential for changes over the next three years that could affect our analyses. Description of Marine Mammals in the Area of Specified Activities Sections 3 and 4 of the IHA 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' Stock Assessment Reports (SARs; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS' website ( www.fisheries.noaa.gov/find-species ). There are 26 marine mammal species that could potentially occur in the project area and that are included in Table 3 of the IHA application. However, the temporal and/or spatial occurrence of several species listed in Table 3 of the IHA application is such that take of these species is not expected to occur nor authorized, and they are therefore not discussed further beyond the explanation provided here. Take of these species is not anticipated either because they have very low densities in the project area, or because they are not expected to occur in the project area due to their more likely occurrence in habitat that is outside the WDA, based on the best available information. There are two pilot whale species (long-finned and short-finned ( Globicephala macrorhynchus )) with distributions that overlap in the latitudinal range of the WDA (Hayes et al., 2020). Because it is difficult to discriminate between the two species at sea, sightings, and thus the densities calculated from them, are generally reported together as Globicephala spp. (Hayes et al., 2020; Roberts et al., 2016). However, based on the best available information, short-finned pilot whales occur in habitat that is both further offshore on the shelf break and further south than the project area (Hayes et al., 2018). Therefore, we assume that any take of pilot whales would be of long-finned pilot whales. Blue whales ( Balaenoptera musculus musculus ), dwarf and pygmy sperm whales ( Kogia sima and K. breviceps ), Cuvier's beaked whale ( Ziphius cavirostris ), striped dolphins ( Stenella coeruleoalba ) and four species of Mesoplodont beaked whale ( Mesoplodon spp.), also occur in deepwater habitat that is further offshore than the project area (Hayes et al., 2020, Roberts et al., 2016). Likewise, Atlantic spotted dolphins ( Stenella frontalis ) primarily occur near the continental shelf edge and continental slope, in waters that are further offshore than the project area (Hayes et al., 2019). Between October 2011 and June 2015 a total of 76 aerial surveys were conducted throughout the MA and RI/MA Wind Energy Areas (WEAs) (the WDA is contained within the MA WEA along with several other offshore renewable energy lease areas). Between November 2011 and March 2015, Marine Autonomous Recording Units (MARU; a type of static PAM recorder) were deployed at nine sites in the MA and RI/MA WEAs. The goal of the study was to collect visual and acoustic baseline data on distribution, abundance, and temporal occurrence patterns of marine mammals (Kraus et al., 2016). Further, between 2004-2014, acoustic detections of four species of baleen whales were examined that show important distributional changes over the range of baleen whales (Davis et al., 2020). That study showed blue whales were more frequently detected in the northern latitudes of the study area after 2010 and no detections occurred in the project area in spring, summer, and fall when pile driving would occur (Davis et al., 2020). In addition, during recent Vineyard Wind marine site characterization surveys, none of the aforementioned species were observed during marine mammal monitoring (Vineyard Wind, 2021). The lack of sightings of any of the species listed above reinforces the fact that these species are not expected to occur in the project area. As these species are not expected to occur in the project area during the planned activities, they are not discussed further in this document. We expect that the species listed in Table 2 will potentially occur in the project area and will potentially be taken as a result of the project. Table 2 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 (2018). 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' SARs). While no mortality is anticipated or authorized here, PBR is included here as a gross indicator of the status of the species and other threats. Four marine mammal species that are listed under the Endangered Species Act (ESA) may be present in the project area and may be taken incidental to the planned activity: The NARW, fin whale, sei whale, and sperm whale. 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' 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' U.S. Atlantic SARs. All values presented in Table 2 are the most recent available at the time of publication and, except as otherwise noted, are available in the 2019 Atlantic SARs (Hayes et al., 2019), available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. Table 2—Marine Mammals Known To Occur in the Project Area That May Be Affected by Vineyard Wind's Activity Common name (scientific name) Stock MMPA and ESA status; strategic (Y/N) 1 Stock abundance (CV, N min , most recent abundance survey) 2 Predicted abundance (CV) 3 PBR 4 Annual M/SI 4 Occurrence and seasonality in project area Toothed whales (Odontoceti) Sperm whale ( Physeter macrocephalus ) North Atlantic E; Y 4,349 (0.28; 3,451; 2019) 5,353 (0.12) 3.9 0 Rare. Long-finned pilot whale ( Globicephala melas ) W North Atlantic -; N 39,219 (0.3; 30,627; n/a) 5 18,977 (0.11) 306 21 Rare. Atlantic white-sided dolphin ( Lagenorhynchus acutus ) W North Atlantic -; N 93,233 (0.71; 54,443; 2019) 37,180 (0.07) 544 26 Common year round. Bottlenose dolphin ( Tursiops truncatus ) W North Atlantic, Offshore -; N 62,851 (0.23; 51,914; 2019) 5 97,476 (0.06) 519 28 Common year round. Common dolphin ( Delphinus delphis ) W North Atlantic -; N 172,974 (0.21; 145,216; 2019) 86,098 (0.12) 1,452 399 Common year round. Risso's dolphin ( Grampus griseus ) W North Atlantic -; N 35,493 (0.19; 30,298; 2019) 7,732 (0.09) 303 54.3 Rare. Harbor porpoise ( Phocoena phocoena ) Gulf of Maine/Bay of Fundy -; N 95,543 (0.31; 74,034; 2019) * 45,089 (0.12) 851 217 Common year round. Baleen whales (Mysticeti) NARW ( Eubalaena glacialis ) W North Atlantic E; Y 368 (0; 356; 2020) 6 * 535 (0.45) 6 0.8 6 18.6 Year round in continental shelf and slope waters, seasonally. Humpback whale ( Megaptera novaeangliae ) Gulf of Maine -; N 1,393 (0.15; 1,375; 2019) * 1,637 (0.07) 22 58 Common year round. Fin whale ( Balaenoptera physalus ) W North Atlantic E; Y 6,802 (0.24; 5,573; 2019) 4,633 (0.08) 11 2.35 Year round in continental shelf and slope waters, occur seasonally. Sei whale ( Balaenoptera borealis ) Nova Scotia E; Y 6,292 (1.02; 3,098; 2019) * 717 (0.30) 6.2 1.2 Year round in continental shelf and slope waters, occur seasonally. Minke whale ( Balaenoptera acutorostrata ) Canadian East Coast -; N 21,968 (0.31; 17,002; n/a) * 2,112 (0.05) 170 10.6 Year round in continental shelf and slope waters, occur seasonally. Earless seals (Phocidae) Gray seal 7 ( Halichoerus grypus ) W North Atlantic -; N 27,131 (0.19; 23,158; 2019) n/a 1,389 4,729 Common year round. Harbor seal ( Phoca vitulina ) W North Atlantic -; N 75,834 (0.15; 66,884; 2019) n/a 2,006 350 Common year round. Harp seal ( Pagophilus groenlandicus ) W North Atlantic -; N 7,411,000 8 (unk.; unk; 2019) n/a unk 232,422 Rare. 1 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 (see footnote 3) 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 Stock abundance as reported in NMFS marine mammal stock assessment reports (SAR) except where otherwise noted. SARs available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; N min is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented are from the 2019 Atlantic SARs. 3 This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016, 2017, 2018, 2020). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic Ocean, and we provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance. 4 Potential biological removal, 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 size (OSP). Annual mortality or serious injury (M/SI), found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined ( e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented in the draft 2019 Atlantic SARs. 5 Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly, the habitat-based cetacean density models produced by Roberts et al. (2016) are based in part on available observational data which, in some cases, is limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016) produced density models to genus level for Globicephala spp. and produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks. 6 Abundance source is Pace et al. (2021). PBR and annual M/SI source is draft 2020 SAR (Hayes et al. 2020). Because PBR is based on the minimum population estimate, we anticipate it will be slightly lower than what is presented here given the Pace et al. (2021) abundance; however, the 2020 SARs are not yet finalized. Regardless of final numbers, NMFS recognizes the NARW stock is critically endangered with a low PRB and high annual M/SI rate due primarily to ship strikes and entanglement. 7 NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000. 8 The stock abundance of harp seal is considered unknown in the draft 2020 SAR; however, the abundance reflected here is the most recent available. A detailed description of the species for which take has been authorized, including brief introductions to the relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (84 FR 18346; April 30, 2019). Since that time, the status of some species and stocks have been updated, most notably for large whales. Table 2 includes the most recent population, PBR and annual mortality and serious injury (M/SI) rates for all species. We refer the reader to the proposed IHA Federal Register notice for basic descriptions on each species status and provide a summary of updates below where necessary. Please also refer to NMFS' website ( https://www.fisheries.noaa.gov/find-species ) for generalized species accounts. As described in the proposed IHA notice, beginning in 2017, elevated mortalities in the NARW population have been documented, primarily in Canada but some in the U.S., and were collectively declared an Unusual Mortality Event (UME). As of May 2021, 34 NARWs have been confirmed dead and an additional 15 have been determined to be seriously injured. Entanglement and vessel strikes are the primary causes of M/SI. In addition, Pace et al. (2021) has identified a reduction in NARW abundance since the proposed IHA (451 to 368) and Oleson et al. (2020) have established the project area as year-round foraging habitat. Since the proposed IHA, the annual rate of mortality and serious injury for humpback whales belonging to the Gulf of Maine stock increased from 12.5 to 58. This dramatic increase is a result of changing how the rate is modeled; 12.5 was observed M/SI while 58 represents a model approach considering the observed rate. The draft 2020 SAR applies a new hierarchical Bayesian, state-space model used to estimate mortality (Hayes et al., 2020). The estimated rate is based on the observed rate of serious injury and mortality and an estimated detection rate. The estimated annual rate of total mortality using this modeling approach is 57.6 animals for the period 2011-2015. The IHA does not authorize serious injury or mortality of humpback whales. 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, 2019) 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 low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. Marine mammal hearing groups and their associated hearing ranges are provided in Table 3. Table 3—Marine Mammal Hearing 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 (Hemilä 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. Fifteen marine mammal species (twelve cetacean and three pinniped (all phocid species)) have the reasonable potential to co-occur with the planned activities. Please refer to Table 2. Of the cetacean species that may be present, five are classified as low-frequency cetaceans ( i.e., all mysticete species), six are classified as mid-frequency cetaceans ( i.e., all delphinid species and the sperm whale), and one is classified as a high-frequency cetacean ( i.e., harbor porpoise). Potential Effects of Specified Activities on Marine Mammals and Their Habitat The effects of underwater noise from Vineyard Wind's construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the project area. The notice of proposed IHA (84 FR 18346; April 30, 2019) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from Vineyard Wind's construction activities on marine mammals and their habitat. That information and analysis is incorporated by reference into this final IHA determination and is not repeated here; please refer to the notice of proposed IHA (84 FR 18346; April 30, 2019). Estimated Take This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination. As noted in the Summary of Changes from Proposed to Final, a small change was made for Level A harassment for fin whales and sperm whales. 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 primarily by Level B harassment, as noise from pile driving has the potential to result in disruption of behavioral patterns for individual marine mammals, either directly or as a result of masking or temporary hearing impairment (also referred to as temporary threshold shift (TTS), as described in the notice of proposed IHA (83 FR 18346, April 30, 2019)). There is also some potential for auditory injury (Level A harassment) to result for select marine mammals. Mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable. No marine mammal 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 Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Level B Harassment—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source ( e.g., frequency, predictability, duty cycle), the environment ( e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2012). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 160 dB re 1 μPa (rms) for impulsive and/or intermittent sources ( e.g., impact pile driving). Quantifying Level B harassment in this manner is also expected to capture any qualifying changes in behavioral patterns that may result from TTS. Level A harassment—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The components of Vineyard Wind's planned activity that may result in the take of marine mammals include the use of impulsive sources. These thresholds are provided [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2021-13501. Public record. Not legal advice.