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, regulations are promulgated (when applicable), and public notice and an opportunity for public comment are provided.

An authorization for incidental taking 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). If such findings are made, NMFS must prescribe the permissible methods of taking; “other means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the monitoring and reporting of such takings. The MMPA defines “take” to mean harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13); 50 CFR 216.103). Level A harassment is defined as any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild (16 U.S.C. 1362(18); 50 CFR 216.3). Level B harassment is defined as any act of pursuit, torment, or annoyance which 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 (16 U.S.C. 1362(18); 50 CFR 216.3). Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I authorize NMFS to propose and, if appropriate, promulgate regulations and issue associated LOA(s).

On June 21, 2024, NMFS promulgated a final rule (89 FR 52222) responding to a request from the applicant for authorization to take small numbers of marine mammals (39 species comprising 39 stocks). After reviewing the request and making the required findings, NMFS is authorizing the take, by harassment only, of 38 species, representing 38 stocks (19 species by Level A harassment and all 38 species by Level B harassment) incidental to select construction activities occurring in Federal and State waters off of Massachusetts, specifically within and around the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0534, OCS-A 0561, the southwest (SW) portion of Lease Area OCS-A 0501 (collectively referred to as the Lease Area), and along an export cable routes to sea-to-shore transition points (collectively, the Project Area) over the course of 5 years (March 27, 2025 through March 26, 2030). The specified activities are impact pile driving, vibratory pile driving, and drilling of wind turbine generator (WTG) and electrical service platform (ESP) foundations; high-resolution geophysical (HRG) site characterization surveys; detonation of unexploded ordnances (UXOs) or munitions and explosives of concern (MECs); fisheries and benthic monitoring surveys; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable from the ESP(s) to shore based converter stations and inter-array cables between WTG foundations; vessel transit within the specified geographical region to transport crew, supplies, and materials; and WTG operations.

Marine mammals exposed to elevated noise levels during foundation pile driving and/or UXO/MEC detonation, may be taken by Level A harassment (limited to blue whales, fin whales, humpback whales, minke whales, sei whales, sperm whales, dwarf sperm whale, pygmy sperm whale, Atlantic spotted dolphin, Atlantic white-sided dolphin, common bottlenose dolphin, common dolphin, long-finned pilot whales, short-finned pilot whale, Risso's dolphin, harbor porpoise, gray seal, harbor seal, and harp seal). Marine mammals exposed to elevated noise levels during impact pile driving, vibratory pile driving, and drilling during foundation installation, UXO/MEC detonation, and site characterization surveys may be taken by Level B harassment (all 38 stocks). For reasons described in the final rule, no mortality or serious injury of any marine mammal is anticipated to occur or authorized. Further, for reasons described in the final rule, no take by Level A harassment of several species, including the North Atlantic right whale, is expected to occur or authorized.

Authorization

In accordance with the final rule (89 FR 52222, June 21, 2024; see 50 CFR 217.326), we have issued a LOA to Avangrid authorizing the take, by harassment, of marine mammals incidental to specified activities within the specified geographical region. As previously stated, no mortality or serious injury of any marine mammal species is anticipated to occur or authorized. The incidental takes authorized herein are the same as those analyzed in the final rule (89 FR 52222, June 21, 2024). Takes of marine mammals will be minimized through the following planned mitigation and monitoring measures, as applicable for each specified activity: (1) implementation of spatio-temporal work restrictions; (2) use of multiple NMFS-approved Protected Species Observers (PSOs) to visually observe for marine mammals (with any detection within specifically designated zones triggering a delay or shutdown, as applicable); (3) use of NMFS-approved passive acoustic monitoring (PAM) operators to acoustically detect marine mammals during foundation installation activities, with a focus on detecting baleen whales (with any detection within designated zones triggering a delay or shutdown, as applicable); (4) implementation of clearance and shutdown zones; (5) use of soft-start prior to the start of foundation impact pile driving; (6) use of noise attenuation technology; (7) use of situational awareness monitoring for marine mammal presence; (8) conducting sound field verification during foundation installation and UXO/MEC detonation; (9) use of ramp-up acoustic sources during HRG surveys; and (10) implementation of several vessel strike avoidance measures ( e.g., speed and separation distance measures) to reduce the risk of a vessel interaction with a marine mammal. Additionally, Avangrid is required to submit reports frequently to NMFS. Through adaptive management, NMFS may modify the LOA's mitigation, monitoring, or reporting measures, based on new information, when appropriate.

As described in the preamble of the final rule, NMFS has determined that the take authorized in the LOA is of small numbers of marine mammals, will ( printed page 60358) have a negligible impact on marine mammal stocks, will not have an unmitigable adverse impact on the availability of the affected marine mammal stock for subsistence uses, and the mitigation measures provide a means of affecting the least practicable adverse impact on the affected stocks and their habitat.