Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of New Jersey, 17783-17799 [2021-07014]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 64 (Tuesday, April 6, 2021)]
[Notices]
[Pages 17783-17799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07014]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA948]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys Off of New Jersey

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from Ocean Wind, LLC (Ocean Wind) 
for authorization to take marine mammals incidental to marine site 
characterization surveys off of New Jersey in the area of Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Area OCS-A 0498 and potential export cable 
routes to landfall locations in New Jersey. Pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an incidental harassment authorization (IHA) to 
incidentally take marine mammals during the specified activities. NMFS 
is also requesting comments on a possible one-year renewal that could 
be issued under certain circumstances and if all requirements are met, 
as described in Request for Public Comments at the end of this notice. 
NMFS will consider public comments prior to making any final decision 
on the issuance of the requested MMPA authorizations and agency 
responses will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than May 6, 
2021.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, and should be submitted via email to 
[email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments received are a part of 
the public record and will generally be posted online at 
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-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 the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for 
significant impacts on the quality of the human environment and for 
which NMFS have not identified any extraordinary circumstances that 
would preclude this categorical exclusion. Accordingly, NMFS has 
preliminarily determined that the issuance of the proposed IHA 
qualifies to be categorically excluded from further NEPA review.
    NMFS will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On December 11, 2020, NMFS received a request from Ocean Wind for 
an IHA to take marine mammals incidental to marine site 
characterization surveys off of New Jersey in the area of Commercial 
Lease of Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf Lease Area OCS-A 0498 (Lease Area) and potential 
export cable routes (ECRs) to landfall locations in New Jersey. 
Following NMFS review of the draft application, a revised version was 
submitted on February 23, 2021. That revised version was deemed 
adequate and complete on March 9, 2020. Ocean Wind's request is for 
take

[[Page 17784]]

of 16 species of marine mammals, by Level B harassment only. Neither 
Ocean Wind nor NMFS expects serious injury or mortality to result from 
this activity and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to Ocean Wind for similar work in the 
same geographic area on June 8, 2017 (82 FR 31562; July 7, 2017) with 
effective dates from June 8, 2017, through June 7, 2018. Ocean Wind 
complied with all the requirements (e.g., mitigation, monitoring, and 
reporting) of the previous IHA.

Description of Proposed Activity

Overview

    As part of its overall marine site characterization survey 
operations, Ocean Wind proposes to conduct high-resolution geophysical 
(HRG) surveys in the Lease Area and along potential ECRs to landfall 
locations in New Jersey.
    The purpose of the marine site characterization surveys are to 
obtain an assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of a planned offshore wind facility development. Surveys are 
also conducted to support engineering design and to map unexploded 
ordnance. Underwater sound resulting from Ocean Wind's proposed site 
characterization survey activities, specifically HRG surveys, has the 
potential to result in incidental take of marine mammals in the form of 
Level B behavioral harassment.

Dates and Duration

    The estimated duration of HRG survey activity is expected to be up 
to 275 survey days over the course of a single year, with a ``survey 
day'' defined as a 24-hour (hr) activity period. Ocean Wind proposes to 
start survey activity as soon as possible in spring 2021. The IHA would 
be effective for one year from the date of issuance.
    This schedule is based on 24-hr operations and includes potential 
down time due to inclement weather. Although some shallow-water 
locations may be surveyed by smaller vessels that would operate during 
daylight hours only, the estimated total number of survey days assumes 
uniform 24-hr operations. The number of estimated survey days varies 
between the Lease Area and ECR area, with 142 vessel survey days 
expected in the Lease Area and 133 vessel survey days in the ECR area.

Specific Geographic Region

    The proposed survey activities will occur within the Project Area 
which includes the Lease Area and potential ECRs, as shown in Figure 1. 
The Lease Area is approximately 649 square kilometers (km\2\) and is 
within the Bureau of Ocean Energy Management's New Jersey Wind Energy 
Area (WEA). Water depths in the Lease Area range from 15 meters (m) to 
35 m, and the potential ECRs extend from the shoreline to approximately 
40 m depth.
BILLING CODE 3510-22-P

[[Page 17785]]

[GRAPHIC] [TIFF OMITTED] TN06AP21.012

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    Ocean Wind proposes to conduct HRG survey operations, including 
multibeam depth sounding, seafloor imaging, and shallow and medium 
penetration sub-bottom profiling. The HRG surveys may be conducted 
using any or all of the following equipment types: Side scan sonar, 
multibeam echosounder, magnetometers and gradiometers, parametric sub-
bottom profiler (SBP), CHIRP SBP, boomers, or sparkers. Ocean Wind 
assumes that

[[Page 17786]]

HRG survey operations would be conducted 24 hours per day, with an 
assumed daily survey distance of 70 km. Vessels would generally conduct 
survey effort at a transit speed of approximately 4 knots (kn), which 
equates to 110 km per 24-hr period. However, based on past survey 
experience (i.e., knowledge of typical daily downtime due to weather, 
system malfunctions, etc.) Ocean Wind assumes 70 km as the average 
daily distance. On this basis, a total of 275 survey days (142 survey 
days in the Lease Area and 133 survey days in the ECR area) are 
expected. In certain shallow-water areas, vessels may conduct survey 
effort during daylight hours only, with a corresponding assumption that 
the daily survey distance would be halved (35 km). However, for 
purposes of analysis all survey days are assumed to cover the maximum 
70 km. A maximum of two vessels would operate concurrently in areas 
where 24-hr operations would be conducted, with an additional third 
vessel potentially conducting daylight-only survey effort in shallow-
water areas.
    Acoustic sources planned for use during HRG survey activities 
proposed by Ocean Wind include the following:
     Shallow penetration, non-impulsive, non-parametric SBPs 
(i.e., CHIRP SBPs) are used to map the near-surface stratigraphy (top 0 
to 10 m) of sediment below seabed. A CHIRP system emits signals 
covering a frequency sweep from approximately 2 to 20 kHz over time. 
The frequency range can be adjusted to meet project variables. These 
sources are typically mounted on a pole rather than towed, reducing the 
likelihood that an animal would be exposed to the signal.
     Medium penetration, impulsive sources (i.e., boomers and 
sparkers) are used to map deeper subsurface stratigraphy. A boomer is a 
broadband source operating in the 3.5 Hz to 10 kHz frequency range. 
Sparkers create omnidirectional acoustic pulses from 50 Hz to 4 kHz. 
These sources are typically towed behind the vessel.
    Operation of the following survey equipment types is not expected 
to present reasonable risk of marine mammal take, and will not be 
discussed further beyond the brief summaries provided below.
     Non-impulsive, parametric SBPs are used for providing high 
data density in sub-bottom profiles that are typically required for 
cable routes, very shallow water, and archaeological surveys. These 
sources generate short, very narrow-beam (1[deg] to 3.5[deg]) signals 
at high frequencies (generally around 85-100 kHz). The narrow beamwidth 
significantly reduces the potential that a marine mammal could be 
exposed to the signal, while the high frequency of operation means that 
the signal is rapidly attenuated in seawater. These sources are 
typically deployed on a pole rather than towed behind the vessel.
     Acoustic corers are seabed-mounted sources with three 
distinct sound sources: A high-frequency parametric sonar, a high-
frequency CHIRP sonar, and a low-frequency CHIRP sonar. The beamwidth 
is narrow (3.5[deg] to 8[deg]) and the source is operated roughly 3.5 m 
above the seabed with the transducer pointed directly downward.
     Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by the vessel transceiver and a transponder 
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several 
transponders mounted on other survey equipment. USBLs are expected to 
produce extremely small acoustic propagation distances in their typical 
operating configuration.
     Multibeam echosounders (MBESs) are used to determine water 
depths and general bottom topography. The proposed MBESs all have 
operating frequencies >180 kHz and are therefore outside the general 
hearing range of marine mammals.
     Side scan sonars (SSS) are used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The proposed SSSs all have operating 
frequencies >180 kHz and are therefore outside the general hearing 
range of marine mammals.
    Table 1 identifies representative survey equipment with the 
expected potential to result in exposure of marine mammals and 
potentially result in take. The make and model of the listed 
geophysical equipment may vary depending on availability and the final 
equipment choices will vary depending upon the final survey design, 
vessel availability, and survey contractor selection.

                                                    Table 1--Summary of Representative HRG Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        SLrms  (dB  SL0-pk  (dB      Pulse
                                           Operating       re 1         re 1        duration     Repetition   Beamwidth    CF = Crocker and Fratantonio
                Equipment                  frequency    [micro]Pa    [micro]Pa      (width)      rate  (Hz)   (degrees)     (2016) MAN =  manufacturer
                                             (kHz)          m)           m)      (millisecond)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Non-parametric shallow penetration SBPs (non-impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ET 216 (2000DS or 3200 top unit)........         2-16          195            -            20             6           24  MAN.
                                                  2-8
ET 424..................................         4-24          176            -           3.4             2           71  CF.
ET 512..................................       0.7-12          179            -             9             8           80  CF.
GeoPulse 5430A..........................         2-17          196            -            50            10           55  MAN.
Teledyne Benthos Chirp III--TTV 170.....          2-7          197            -            60            15          100  MAN.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Medium penetration SBPs (impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AA, Dura-spark UHD (400 tips, 500 J) \1\      0.3-1.2          203          211           1.1             4         Omni  CF.
AA, triple plate S-Boom (700-1,000 J)           0.1-5          205          211           0.6             4           80  CF.
 \2\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
- = not applicable; [mu]Pa = micropascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; J = joule; Omni = omnidirectional source; re = referenced
  to; PK = zero-to-peak sound pressure level; SL = source level; SPL = root-mean-square sound pressure level; UHD = ultra-high definition.
\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  These include variants of the Dura-spark sparker system and various configurations of the GeoMarine Geo-Source sparker system. The data provided in
  Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when
  manufacturer or other reliable measurements are not available.
\2\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
  used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
  in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.


[[Page 17787]]

    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS' 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).
    Table 2 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. For taxonomy, NMFS follows the Committee on 
Taxonomy (2020). PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS' SARs). While no 
mortality is anticipated or would be authorized here, PBR and annual 
serious injury and mortality from anthropogenic sources are included as 
gross indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' 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 and Gulf of Mexico SARs. All values presented in 
Table 2 are the most recent available at the time of publication and 
are available in the 2019 SARs (Hayes et al., 2020) and draft 2020 
SARS, available at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports.

                   Table 2--Marine Mammal Species Likely to Occur Near the Project Area That May Be Affected by Ocean Wind's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Stock abundance  (CV,
                                                                                         ESA/MMPA status;      Nmin, most recent               Annual M/
             Common name                  Scientific name               Stock           strategic  (Y/N) 1    abundance survey) 2      PBR        SI 3
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western North Atlantic   E/D; Y              412 (0; 408; 2018)....        0.8       18.6
                                                                (WNA).
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,393 (0.15; 1,375;            22         58
                                                                                                             2016).
    Fin whale.......................  Balaenoptera physalus..  WNA....................  E/D; Y              6,802 (0.24; 5,573;            11       2.35
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.02; 3,098;           6.2        1.2
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian East Coast....  -/-; N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.                                                        2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E/D; Y              4,349 (0.28;3,451;            3.9          0
                                                                                                             2016).
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  WNA....................  -/-; N              39,215 (0.30; 30,627;         306         21
                                                                                                             2016).
    Short finned pilot whale........  Globicephala             WNA....................  -/-; N              28,924 (0.24; 23,637;         236        160
                                       macrorhynchus.                                                        2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  WNA Offshore...........  -/-; N              62,851 (0.23; 51,914;         519         28
                                                                                                             2016).
                                                               WNA Northern Migratory   -/D;Y               6,639 (0.41, 4,759,            48  12.2-21.5
                                                                Coastal.                                     2016).
    Common dolphin..................  Delphinus delphis......  WNA....................  -/-; N              172,974 (0.21;              1,452        399
                                                                                                             145,216; 2016).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  WNA....................  -/-; N              93,233 (0.71; 54,443;         544         26
                                                                                                             2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  WNA....................  -/-; N              39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
    Risso's dolphin.................  Grampus griseus........  WNA....................  -/-; N              35,493 (0.19; 30,289;         303       54.3
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034;         851        217
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal 4.....................  Halichoerus grypus.....  WNA....................  -/-; N              27,131 (0.19; 23,158,       1,389      4,729
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  WNA....................  -/-; N              75,834 (0.15; 66,884,       2,006        350
                                                                                                             2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 or which is
  determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
2 NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is
  coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
3 These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
4 NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual M/SI value given is for the total stock.


[[Page 17788]]

    As indicated above, all 16 species (with 17 managed stocks) in 
Table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. In addition to what is 
included in Sections 3 and 4 of the application, the SARs, and NMFS' 
website, further detail informing the baseline for select species 
(i.e., information regarding current Unusual Mortality Events (UME) and 
important habitat areas) is provided below.

North Atlantic Right Whale

    Elevated North Atlantic right whale mortalities have occurred since 
June 7, 2017, along the U.S. and Canadian coast. This event has been 
declared an Unusual Mortality Event (UME), with human interactions, 
including entanglement in fixed fishing gear and vessel strikes, 
implicated in at least 15 of the mortalities thus far. As of March 12, 
2021, a total of 34 confirmed dead stranded whales (21 in Canada; 13 in 
the United States) have been documented. The cumulative total number of 
animals in the North Atlantic right whale UME has been updated to 49 
individuals to include both the confirmed mortalities (dead stranded or 
floaters) (n=34) and seriously injured free-swimming whales (n=15) to 
better reflect the confirmed number of whales likely removed from the 
population during the UME and more accurately reflect the population 
impacts. More information is available online at: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-north-atlantic-right-whale-unusual-mortality-event.
    The proposed survey area is part of a migratory corridor 
Biologically Important Area (BIA) for North Atlantic right whales 
(effective March-April and November-December) that extends from 
Massachusetts to Florida (LeBrecque et al., 2015). Off the coast of New 
Jersey, the migratory BIA extends from the coast to beyond the shelf 
break. This important migratory area is approximately 269,488 km\2\ in 
size (compared with the approximately 5,500 km\2\ of total estimated 
Level B harassment ensonified area associated with the 275 planned 
survey days) and is comprised of the waters of the continental shelf 
offshore the East Coast of the United States, extending from Florida 
through Massachusetts. NMFS' regulations at 50 CFR part 224.105 
designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic 
U.S. Seasonal Management Areas (SMA) for right whales in 2008. SMAs 
were developed to reduce the threat of collisions between ships and 
right whales around their migratory route and calving grounds. A 
portion of one SMA, which occurs off the mouth of Delaware Bay, 
overlaps spatially with a section of the proposed survey area. The SMA 
which occurs off the mouth of Delaware Bay is active from November 1 
through April 30 of each year.

Humpback Whale

    NMFS recently evaluated the status of the species, and on September 
8, 2016, NMFS divided the species into 14 distinct population segments 
(DPS), removed the species-level listing, and in its place listed four 
DPSs as endangered and one DPS as threatened (81 FR 62260; September 8, 
2016). The remaining nine DPSs were not listed. The West Indies DPS, 
which is not listed under the ESA, is the only DPS of humpback whale 
that is expected to occur in the survey area. Bettridge et al. (2015) 
estimated the size of this population at 12,312 (95 percent CI 8,688-
15,954) whales in 2004-05, which is consistent with previous population 
estimates of approximately 10,000-11,000 whales (Stevick et al., 2003; 
Smith et al., 1999) and the increasing trend for the West Indies DPS 
(Bettridge et al., 2015). Whales occurring in the survey area are 
considered to be from the West Indies DPS, but are not necessarily from 
the Gulf of Maine feeding population managed as a stock by NMFS. Barco 
et al., 2002 estimated that, based on photo-identification, only 39 
percent of individual humpback whales observed along the mid- and south 
Atlantic U.S. coast are from the Gulf of Maine stock.
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. Partial or 
full necropsy examinations have been conducted on approximately half of 
the 147 known cases (as of March 8, 2021). Of the whales examined, 
about 50 percent had evidence of human interaction, either ship strike 
or entanglement. While a portion of the whales have shown evidence of 
pre-mortem vessel strike, this finding is not consistent across all 
whales examined and more research is needed. NOAA is consulting with 
researchers that are conducting studies on the humpback whale 
populations, and these efforts may provide information on changes in 
whale distribution and habitat use that could provide additional 
insight into how these vessel interactions occurred. More information 
is available at: www.fisheries.noaa.gov/national/marine-life-distress/2016-2021-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Minke Whale

    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina, with a 
total of 105 strandings (as of March 8, 2021). This event has been 
declared a UME. Full or partial necropsy examinations were conducted on 
more than 60 percent of the whales. Preliminary findings in several of 
the whales have shown evidence of human interactions or infectious 
disease, but these findings are not consistent across all of the whales 
examined, so more research is needed. More information is available at: 
www.fisheries.noaa.gov/national/marine-life-distress/2017-2021-minke-whale-unusual-mortality-event-along-atlantic-coast.

Seals

    Since July 2018, elevated numbers of harbor seal and gray seal 
mortalities have occurred across Maine, New Hampshire and 
Massachusetts. This event has been declared a UME. Additionally, 
stranded seals have shown clinical signs as far south as Virginia, 
although not in elevated numbers, therefore the UME investigation now 
encompasses all seal strandings from Maine to Virginia. Ice seals (harp 
and hooded seals) have also started stranding with clinical signs, 
again not in elevated numbers, and those two seal species have also 
been added to the UME investigation. A total of 3,152 reported 
strandings (of all species) had occurred from July 1, 2018, through 
March 13, 2020. Full or partial necropsy examinations have been 
conducted on some of the seals and samples have been collected for 
testing. Based on tests conducted thus far, the main pathogen found in 
the seals is phocine distemper virus. NMFS is performing additional 
testing to identify any other factors that may be involved in this UME. 
Information on this UME is available online at: www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

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.,

[[Page 17789]]

Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 
2008). To reflect this, Southall et al. (2007) recommended that marine 
mammals be divided into functional hearing groups based on directly 
measured or estimated hearing ranges on the basis of available 
behavioral response data, audiograms derived using auditory evoked 
potential techniques, anatomical modeling, and other data. Note that no 
direct measurements of hearing ability have been successfully completed 
for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS 
(2018) described generalized hearing ranges for these marine mammal 
hearing groups. Generalized hearing ranges were chosen based on the 
approximately 65 decibel (dB) threshold from the normalized composite 
audiograms, with the exception for lower limits for 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      7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,   150 Hz to 160 kHz.
 toothed whales, beaked whales,
 bottlenose whales).
High-frequency (HF) cetaceans (true       275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true  50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea  60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* 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 
(Hemil[auml] et al., 2006; Kastelein et al., 2009).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Sixteen marine mammal species (14 cetacean and 2 pinniped (both phocid) 
species) have the reasonable potential to co-occur with the proposed 
survey 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), eight 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

    This section includes a summary of the ways that Ocean Wind's 
specified activity may impact marine mammals and their habitat. 
Detailed descriptions of the potential effects of similar specified 
activities have been provided in other recent Federal Register notices, 
including for survey activities using the same methodology, over a 
similar amount of time, and occurring within the same specified 
geographical region (e.g., 82 FR 20563, May 3, 2017; 85 FR 36537, June 
17, 2020; 85 FR 37848, June 24, 2020; 85 FR 48179, August 10, 2020). No 
significant new information is available, and we refer the reader to 
these documents rather than repeating the details here. The Estimated 
Take section includes a quantitative analysis of the number of 
individuals that are expected to be taken by Ocean Wind's activity. The 
Negligible Impact Analysis and Determination section considers the 
potential effects of the specified activity, the Estimated Take 
section, and the Proposed Mitigation section, to draw conclusions 
regarding the likely impacts of these activities on the reproductive 
success or survivorship of individuals and how those impacts on 
individuals are likely to impact marine mammal species or stocks.

Background on Active Acoustic Sound Sources and Acoustic Terminology

    This subsection contains a brief technical background on sound, on 
the characteristics of certain sound types, and on metrics used in this 
proposal inasmuch as the information is relevant to the specified 
activity and to the summary of the potential effects of the specified 
activity on marine mammals. For general information on sound and its 
interaction with the marine environment, please see, e.g., Au and 
Hastings (2008); Richardson et al. (1995); Urick (1983).
    Sound travels in waves, the basic components of which are 
frequency, wavelength, velocity, and amplitude. Frequency is the number 
of pressure waves that pass by a reference point per unit of time and 
is measured in hertz or cycles per second. Wavelength is the distance 
between two peaks or corresponding points of a sound wave (length of 
one cycle). Higher frequency sounds have shorter wavelengths than lower 
frequency sounds, and typically attenuate (decrease) more rapidly, 
except in certain cases in shallower water. Amplitude is the height of 
the sound pressure wave or the ``loudness'' of a sound and is typically 
described using the relative unit of the decibel. A sound pressure 
level (SPL) in dB is described as the ratio between a measured pressure 
and a reference pressure (for underwater sound, this is 1 microPascal 
([mu]Pa)), and is a logarithmic unit that accounts for large variations 
in amplitude. Therefore, a relatively small change in dB corresponds to 
large changes in sound pressure. The source level (SL) represents the 
SPL referenced at a distance of 1 m from the source (referenced to 1 
[mu]Pa), while the received level is the SPL at the listener's position 
(referenced to 1 [mu]Pa).
    Root mean square (rms) is the quadratic mean sound pressure over 
the duration of an impulse. Root mean square is calculated by squaring 
all of the sound amplitudes, averaging the squares, and then taking the 
square root of the average (Urick, 1983). Root mean square accounts for 
both positive and negative values; squaring the pressures makes all 
values positive so that they may be accounted for in the summation of 
pressure levels (Hastings and Popper, 2005). This measurement is often 
used in the context of discussing behavioral effects, in part because 
behavioral effects, which often result from auditory

[[Page 17790]]

cues, may be better expressed through averaged units than by peak 
pressures.
    Sound exposure level (SEL; represented as dB re 1 [mu]Pa\2\-s) 
represents the total energy in a stated frequency band over a stated 
time interval or event and considers both intensity and duration of 
exposure. The per-pulse SEL is calculated over the time window 
containing the entire pulse (i.e., 100 percent of the acoustic energy). 
SEL is a cumulative metric; it can be accumulated over a single pulse, 
or calculated over periods containing multiple pulses. Cumulative SEL 
represents the total energy accumulated by a receiver over a defined 
time window or during an event. Peak sound pressure (also referred to 
as zero-to-peak sound pressure or 0-pk) is the maximum instantaneous 
sound pressure measurable in the water at a specified distance from the 
source and is represented in the same units as the rms sound pressure.
    When underwater objects vibrate or activity occurs, sound-pressure 
waves are created. These waves alternately compress and decompress the 
water as the sound wave travels. Underwater sound waves radiate in a 
manner similar to ripples on the surface of a pond and may be either 
directed in a beam or beams or may radiate in all directions 
(omnidirectional sources), as is the case for sound produced by the 
pile driving activity considered here. The compressions and 
decompressions associated with sound waves are detected as changes in 
pressure by aquatic life and man-made sound receptors such as 
hydrophones.
    Even in the absence of sound from the specified activity, the 
underwater environment is typically loud due to ambient sound, which is 
defined as environmental background sound levels lacking a single 
source or point (Richardson et al., 1995). The sound level of a region 
is defined by the total acoustical energy being generated by known and 
unknown sources. These sources may include physical (e.g., wind and 
waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds 
produced by marine mammals, fish, and invertebrates), and anthropogenic 
(e.g., vessels, dredging, construction) sound. A number of sources 
contribute to ambient sound, including wind and waves, which are a main 
source of naturally occurring ambient sound for frequencies between 200 
Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to 
increase with increasing wind speed and wave height. Precipitation can 
become an important component of total sound at frequencies above 500 
Hz, and possibly down to 100 Hz during quiet times. Marine mammals can 
contribute significantly to ambient sound levels, as can some fish and 
snapping shrimp. The frequency band for biological contributions is 
from approximately 12 Hz to over 100 kHz. Sources of ambient sound 
related to human activity include transportation (surface vessels), 
dredging and construction, oil and gas drilling and production, 
geophysical surveys, sonar, and explosions. Vessel noise typically 
dominates the total ambient sound for frequencies between 20 and 300 
Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz 
and, if higher frequency sound levels are created, they attenuate 
rapidly.
    The sum of the various natural and anthropogenic sound sources that 
comprise ambient sound at any given location and time depends not only 
on the source levels (as determined by current weather conditions and 
levels of biological and human activity) but also on the ability of 
sound to propagate through the environment. In turn, sound propagation 
is dependent on the spatially and temporally varying properties of the 
water column and sea floor, and is frequency-dependent. As a result of 
the dependence on a large number of varying factors, ambient sound 
levels can be expected to vary widely over both coarse and fine spatial 
and temporal scales. Sound levels at a given frequency and location can 
vary by 10-20 dB from day to day (Richardson et al., 1995). The result 
is that, depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals. Details of source types are described in the following text.
    Sounds are often considered to fall into one of two general types: 
Pulsed and non-pulsed (defined in the following). The distinction 
between these two sound types is important because they have differing 
potential to cause physical effects, particularly with regard to 
hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see 
Southall et al. (2007) for an in-depth discussion of these concepts. 
The distinction between these two sound types is not always obvious, as 
certain signals share properties of both pulsed and non-pulsed sounds. 
A signal near a source could be categorized as a pulse, but due to 
propagation effects as it moves farther from the source, the signal 
duration becomes longer (e.g., Greene and Richardson, 1988).
    Pulsed sound sources (e.g., airguns, explosions, gunshots, sonic 
booms, impact pile driving) produce signals that are brief (typically 
considered to be less than one second), broadband, atonal transients 
(ANSI, 1986, 2005; Harris, 1998; NIOSH, 1998; ISO, 2003) and occur 
either as isolated events or repeated in some succession. Pulsed sounds 
are all characterized by a relatively rapid rise from ambient pressure 
to a maximal pressure value followed by a rapid decay period that may 
include a period of diminishing, oscillating maximal and minimal 
pressures, and generally have an increased capacity to induce physical 
injury as compared with sounds that lack these features.
    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or 
prolonged, and may be either continuous or intermittent (ANSI, 1995; 
NIOSH, 1998). Some of these non-pulsed sounds can be transient signals 
of short duration but without the essential properties of pulses (e.g., 
rapid rise time). Examples of non-pulsed sounds include those produced 
by vessels, aircraft, machinery operations such as drilling or 
dredging, vibratory pile driving, and active sonar systems. The 
duration of such sounds, as received at a distance, can be greatly 
extended in a highly reverberant environment.
    Sparkers and boomers produce pulsed signals with energy in the 
frequency ranges specified in Table 1. The amplitude of the acoustic 
wave emitted from sparker sources is equal in all directions (i.e., 
omnidirectional), while other sources planned for use during the 
proposed surveys have some degree of directionality to the beam, as 
specified in Table 1. Other sources planned for use during the proposed 
survey activity (e.g., CHIRP SBPs) should be considered non-pulsed, 
intermittent sources.

Summary on Specific Potential Effects of Acoustic Sound Sources

    Underwater sound from active acoustic sources can include one or 
more of the following: Temporary or permanent hearing impairment, non-
auditory physical or physiological effects, behavioral disturbance, 
stress, and masking. The degree of effect is intrinsically related to 
the signal characteristics, received level, distance from the source, 
and duration of the sound exposure. Marine mammals exposed to high-
intensity sound, or to lower-intensity sound for prolonged periods, can 
experience hearing threshold shift (TS), which is the loss of hearing 
sensitivity at certain frequency ranges (Finneran, 2015). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is not 
fully

[[Page 17791]]

recoverable, or temporary (TTS), in which case the animal's hearing 
threshold would recover over time (Southall et al., 2007).
    Animals in the vicinity of Ocean Wind's proposed HRG survey 
activity are unlikely to incur even TTS due to the characteristics of 
the sound sources, which include relatively low source levels (176 to 
205 dB re 1 [mu]Pa-m) and generally very short pulses and potential 
duration of exposure. These characteristics mean that instantaneous 
exposure is unlikely to cause TTS, as it is unlikely that exposure 
would occur close enough to the vessel for received levels to exceed 
peak pressure TTS criteria, and that the cumulative duration of 
exposure would be insufficient to exceed cumulative sound exposure 
level (SEL) criteria. Even for high-frequency cetacean species (e.g., 
harbor porpoises), which have the greatest sensitivity to potential 
TTS, individuals would have to make a very close approach and also 
remain very close to vessels operating these sources in order to 
receive multiple exposures at relatively high levels, as would be 
necessary to cause TTS. Intermittent exposures--as would occur due to 
the brief, transient signals produced by these sources--require a 
higher cumulative SEL to induce TTS than would continuous exposures of 
the same duration (i.e., intermittent exposure results in lower levels 
of TTS). Moreover, most marine mammals would more likely avoid a loud 
sound source rather than swim in such close proximity as to result in 
TTS. Kremser et al. (2005) noted that the probability of a cetacean 
swimming through the area of exposure when a sub-bottom profiler emits 
a pulse is small--because if the animal was in the area, it would have 
to pass the transducer at close range in order to be subjected to sound 
levels that could cause TTS and would likely exhibit avoidance behavior 
to the area near the transducer rather than swim through at such a 
close range. Further, the restricted beam shape of many of HRG survey 
devices planned for use (Table 1) makes it unlikely that an animal 
would be exposed more than briefly during the passage of the vessel.
    Behavioral disturbance may include a variety of effects, including 
subtle changes in behavior (e.g., minor or brief avoidance of an area 
or changes in vocalizations), more conspicuous changes in similar 
behavioral activities, and more sustained and/or potentially severe 
reactions, such as displacement from or abandonment of high-quality 
habitat. Behavioral responses to sound are highly variable and context-
specific and any reactions depend on numerous intrinsic and extrinsic 
factors (e.g., species, state of maturity, experience, current 
activity, reproductive state, auditory sensitivity, time of day), as 
well as the interplay between factors. Available studies show wide 
variation in response to underwater sound; therefore, it is difficult 
to predict specifically how any given sound in a particular instance 
might affect marine mammals perceiving the signal.
    In addition, sound can disrupt behavior through masking, or 
interfering with, an animal's ability to detect, recognize, or 
discriminate between acoustic signals of interest (e.g., those used for 
intraspecific communication and social interactions, prey detection, 
predator avoidance, navigation). Masking occurs when the receipt of a 
sound is interfered with by another coincident sound at similar 
frequencies and at similar or higher intensity, and may occur whether 
the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., shipping, sonar, seismic 
exploration) in origin. Marine mammal communications would not likely 
be masked appreciably by the acoustic signals signals given the 
directionality of the signals for most HRG survey equipment types 
planned for use (Table 1) and the brief period when an individual 
mammal is likely to be exposed.
    Sound may affect marine mammals through impacts on the abundance, 
behavior, or distribution of prey species (e.g., crustaceans, 
cephalopods, fish, zooplankton) (i.e., effects to marine mammal 
habitat). Prey species exposed to sound might move away from the sound 
source, experience TTS, experience masking of biologically relevant 
sounds, or show no obvious direct effects. The most likely impacts (if 
any) for most prey species in a given area would be temporary avoidance 
of the area. Surveys using active acoustic sound sources move through 
an area relatively quickly, limiting exposure to multiple pulses. In 
all cases, sound levels would return to ambient once a survey ends and 
the noise source is shut down and, when exposure to sound ends, 
behavioral and/or physiological responses are expected to end 
relatively quickly. Finally, the HRG survey equipment will not have 
significant impacts to the seafloor and does not represent a source of 
pollution.

Vessel Strike

    Vessel collisions with marine mammals, or ship strikes, can result 
in death or serious injury of the animal. These interactions are 
typically associated with large whales, which are less maneuverable 
than are smaller cetaceans or pinnipeds in relation to large vessels. 
Ship strikes generally involve commercial shipping vessels, which are 
generally larger and of which there is much more traffic in the ocean 
than geophysical survey vessels. Jensen and Silber (2004) summarized 
ship strikes of large whales worldwide from 1975-2003 and found that 
most collisions occurred in the open ocean and involved large vessels 
(e.g., commercial shipping). For vessels used in geophysical survey 
activities, vessel speed while towing gear is typically only 4-5 knots. 
At these speeds, both the possibility of striking a marine mammal and 
the possibility of a strike resulting in serious injury or mortality 
are so low as to be discountable. At average transit speed for 
geophysical survey vessels, the probability of serious injury or 
mortality resulting from a strike is less than 50 percent. However, the 
likelihood of a strike actually happening is again low given the 
smaller size of these vessels and generally slower speeds. Notably in 
the Jensen and Silber study, no strike incidents were reported for 
geophysical survey vessels during that time period.
    The potential effects of Ocean Wind's specified survey activity are 
expected to be limited to Level B behavioral harassment. No permanent 
or temporary auditory effects, or significant impacts to marine mammal 
habitat, including prey, are expected.

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals

[[Page 17792]]

produced by the acoustic sources planned for use, Level A harassment is 
neither anticipated (even absent mitigation), nor proposed to be 
authorized. Consideration of the anticipated effectiveness of the 
mitigation measures (i.e., exclusion zones and shutdown measures), 
discussed in detail below in the Proposed Mitigation section, further 
strengthens the conclusion that Level A harassment is not a reasonably 
anticipated outcome of the survey activity. As described previously, no 
serious injury or mortality is anticipated or proposed to be 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 proposed take 
estimates.

Acoustic Thresholds

    NMFS uses 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). NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals may 
be behaviorally harassed (i.e., Level B harassment) when exposed to 
underwater anthropogenic noise above received levels of 160 dB re 1 
[mu]Pa (rms) for the impulsive sources (i.e., boomers, sparkers) and 
non-impulsive, intermittent sources (e.g., CHIRP SBPs) evaluated here 
for Ocean Wind's proposed activity.
    Level A Harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive). For more 
information, see NMFS' 2018 Technical Guidance, which may be accessed 
at www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Ocean Wind's proposed activity includes the use of impulsive (i.e., 
sparkers and boomers) and non-impulsive (e.g., CHIRP SBP) sources. 
However, as discussed above, NMFS has concluded that Level A harassment 
is not a reasonably likely outcome for marine mammals exposed to noise 
through use of the sources proposed for use here, and the potential for 
Level A harassment is not evaluated further in this document. Please 
see Ocean Wind's application for details of a quantitative exposure 
analysis exercise, i.e., calculated Level A harassment isopleths and 
estimated Level A harassment exposures. Maximum estimated Level A 
harassment isopleths were less than 5 m for all sources and hearing 
groups with the exception of an estimated 37 m zone calculated for 
high-frequency cetaceans during use of the GeoPulse 5430 CHIRP SBP (see 
Table 1 for source characteristics). Ocean Wind did not request 
authorization of take by Level A harassment, and no take by Level A 
harassment is proposed for authorization by NMFS.

Ensonified Area

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and the lowest frequency of the source was used when 
calculating the frequency-dependent absorption coefficient (Table 1).
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment 
types that may be used during the proposed surveys and the source 
levels associated with those HRG equipment types.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by Ocean Wind that 
has the potential to result in Level B harassment of marine mammals, 
the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-Source sparkers 
would produce the largest Level B harassment isopleth (141 m; please 
see Table 4 of Ocean Wind's application). Estimated Level B harassment 
isopleths associated with the boomer and CHIRP SBP systems planned for 
use are estimated as 34 and 48 m, respectively. Although Ocean Wind 
does not expect to use sparker sources on all planned survey days, it 
proposes to assume for purposes of analysis that the sparker would be 
used on all survey days. This is a conservative approach, as the actual 
sources used on individual survey days may produce smaller harassment 
distances.

Marine Mammal Occurrence

    In this section, NMFS provides information about the presence, 
density, or group dynamics of marine mammals that informs the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) 
represent the best available information regarding marine mammal 
densities in the survey area. The density data presented by Roberts et 
al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates 
data from 8 physiographic and 16 dynamic oceanographic and biological 
covariates, and controls for the influence of sea state, group size,

[[Page 17793]]

availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at seamap.env.duke.edu/models/Duke-EC-GOM-2015/. 
Marine mammal density estimates in the survey area (animals/km\2\) were 
obtained using the most recent model results for all taxa (Roberts et 
al., 2016, 2017, 2018, 2020). The updated models incorporate additional 
sighting data, including sightings from NOAA's Atlantic Marine 
Assessment Program for Protected Species (AMAPPS) surveys.
    For the exposure analysis, density data from Roberts et al. (2016, 
2017, 2018, 2020) were mapped using a geographic information system 
(GIS). Density grid cells that included any portion of the proposed 
survey area were selected for all survey months (see Figure 3 in Ocean 
Wind's application).
    Densities from each of the selected density blocks were averaged 
for each month available to provide monthly density estimates for each 
species (when available based on the temporal resolution of the model 
products), along with the average annual density. Please see Tables 7 
and 8 of Ocean Wind's application for density values used in the 
exposure estimation process for the Lease Area and the potential ECRs, 
respectively. Note that no density estimates are available for the 
portion of the ECR area in Delaware Bay, so the marine mammal densities 
from the density models of Roberts et al. were assumed to apply to this 
area. Additional data regarding average group sizes from survey effort 
in the region was considered to ensure adequate take estimates are 
evaluated.

Take Calculation and Estimation

    Here NMFS describes how the information provided above is brought 
together to produce a quantitative take estimate. In order to estimate 
the number of marine mammals predicted to be exposed to sound levels 
that would result in harassment, radial distances to predicted 
isopleths corresponding to Level B harassment thresholds are 
calculated, as described above. The maximum distance (i.e., 141 m 
distance associated with sparkers) to the Level B harassment criterion 
and the estimated trackline distance traveled per day by a given survey 
vessel (i.e., 70 km) are then used to calculate the daily ensonified 
area, or zone of influence (ZOI) around the survey vessel.
    The ZOI is a representation of the maximum extent of the ensonified 
area around a sound source over a 24-hr period. The ZOI for each piece 
of equipment operating below 200 kHz was calculated per the following 
formula:

ZOI = (Distance/day x 2r) + [pi]r\2\

Where r is the linear distance from the source to the harassment 
isopleth.

    ZOIs associated with all sources with the expected potential to 
cause take of marine mammals are provided in Table 6 of Ocean Wind's 
application. The largest daily ZOI (19.8 km\2\), associated with the 
various sparkers proposed for use, was applied to all planned survey 
days.
    Potential Level B harassment exposures are estimated by multiplying 
the average annual density of each species within either the Lease Area 
or potential ECR area by the daily ZOI. That product is then multiplied 
by the number of operating days expected for the survey in each area 
assessed, and the product is rounded to the nearest whole number. These 
results are shown in Table 4.

                           Table 4--Summary of Take Numbers Proposed for Authorization
----------------------------------------------------------------------------------------------------------------
                                                                                      Level B
                             Species                                 Abundance      harassment      Max percent
                                                                                      takes 1       population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................................             412               9            2.18
Fin whale.......................................................           6,802               6            0.09
Sei whale.......................................................           6,292           0 (1)            0.02
Minke whale.....................................................          21,968               2            0.01
Humpback whale..................................................           1,393               2            0.14
Sperm whale 3...................................................           4,349           0 (3)            0.07
Atlantic white-sided dolphin....................................          93,233              16            0.02
Atlantic spotted dolphin........................................          39,921               3            0.01
Common bottlenose dolphin: 2
    Offshore Stock..............................................          62,851             262            0.42
    Migratory Stock.............................................           6,639           1,410           21.24
Pilot Whales: 3
    Short-finned pilot whale....................................          28,924               2            0.01
    Long-finned pilot whale.....................................          39,215               2            0.01
Risso's dolphin.................................................          35,493          0 (30)            0.08
Common dolphin..................................................         172,974             124            0.07
Harbor porpoise.................................................          95,543              91            0.10
Seals: 4
    Gray seal...................................................         451,431              11            0.00
    Harbor seal.................................................          75,834              11            0.01
----------------------------------------------------------------------------------------------------------------
1 Parentheses denote proposed take authorization where different from calculated take estimates. Increases from
  calculated values are based on assumed average group size for the species; sei whale, Kenney and Vigness-
  Raposa, 2010; sperm whale and Risso's dolphin, Barkaszi and Kelly, 2018.
2 Roberts et al. (2016) does not provide density estimates for individual stocks of common bottlenose dolphins;
  therefore, stock densities were delineated using the 20-m isobath. Coastal migratory stock dolphins are
  assumed to occur inshore of this line and offshore stock dolphins are assumed to occur offshore of this line.
3 Roberts (2018) only provides density estimates for pilot whales as a guild. The pilot whale density values
  were applied to both species of pilot whale; therefore, the total take number proposed for authorization for
  pilot whales (4) is double the estimated take number for the guild.
4 Roberts (2018) only provides density estimates for seals without differentiating by species. Harbor seals and
  gray seals are assumed to occur equally; therefore, density values were split evenly between the two species,
  i.e., total estimated take for ``seals'' is 22.


[[Page 17794]]

    The take numbers shown in Table 4 are those requested by Ocean 
Wind. NMFS concurs with the requested take numbers and proposes to 
authorize them. Previous monitoring data compiled by Ocean Wind 
(available online at: www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-marine-site-characterization-surveys-offshore-new) suggests that the proposed take numbers for authorization are 
sufficient.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned); and
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS proposes the following mitigation measures be implemented 
during Ocean Wind's proposed marine site characterization surveys.

Marine Mammal Exclusion Zones and Harassment Zones

    Marine mammal exclusion zones (EZ) would be established around the 
HRG survey equipment and monitored by protected species observers 
(PSOs):
     500 m EZ for North Atlantic right whales during use of all 
acoustic sources.
     100 m EZ for all marine mammals, with certain exceptions 
specified below, during operation of impulsive acoustic sources (boomer 
and/or sparker).
    If a marine mammal is detected approaching or entering the EZs 
during the HRG survey, the vessel operator would adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
These stated requirements will be included in the site-specific 
training to be provided to the survey team.

Pre-Clearance of the Exclusion Zones

    Ocean Wind would implement a 30-minute pre-clearance period of the 
exclusion zones prior to the initiation of ramp-up of HRG equipment. 
During this period, the exclusion zone will be monitored by the PSOs, 
using the appropriate visual technology. Ramp-up may not be initiated 
if any marine mammal(s) is within its respective exclusion zone. If a 
marine mammal is observed within an exclusion zone during the pre-
clearance period, ramp-up may not begin until the animal(s) has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e., 15 minutes for 
small odontocetes and seals, and 30 minutes for all other species).

Ramp-Up of Survey Equipment

    When technically feasible, a ramp-up procedure would be used for 
HRG survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. The ramp-up procedure would be used at 
the beginning of HRG survey activities in order to provide additional 
protection to marine mammals near the survey area by allowing them to 
vacate the area prior to the commencement of survey equipment operation 
at full power.
    A ramp-up would begin with the powering up of the smallest acoustic 
HRG equipment at its lowest practical power output appropriate for the 
survey. When technically feasible, the power would then be gradually 
turned up and other acoustic sources would be added.
    Ramp-up activities will be delayed if a marine mammal(s) enters its 
respective exclusion zone. Ramp-up will continue if the animal has been 
observed exiting its respective exclusion zone or until an additional 
time period has elapsed with no further sighting (i.e, 15 minutes for 
small odontocetes and seals and 30 minutes for all other species).
    Activation of survey equipment through ramp-up procedures may not 
occur when visual observation of the pre-clearance zone is not expected 
to be effective (i.e., during inclement conditions such as heavy rain 
or fog).

Shutdown Procedures

    An immediate shutdown of the impulsive HRG survey equipment would 
be required if a marine mammal is sighted entering or within its 
respective exclusion zone. The vessel operator must comply immediately 
with any call for shutdown by the Lead PSO. Any disagreement between 
the Lead PSO and vessel operator should be discussed only after 
shutdown has occurred. Subsequent restart of the survey equipment can 
be initiated if the animal has been observed exiting its respective 
exclusion zone or until an additional time period has elapsed (i.e., 30 
minutes for all other species).
    If a species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (48 m, non-impulsive; 141 m impulsive), 
shutdown would occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if PSOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective exclusion zones. If the acoustic source is shut down for 
a period longer than 30 minutes and PSOs have maintained constant 
observation, then pre-clearance and ramp-up procedures will be 
initiated as described in the previous section.
    The shutdown requirement would be waived for small delphinids of 
the following genera: Delphinus, Lagenorhynchus, Stenella, and Tursiops 
and seals. Specifically, if a delphinid from the specified genera or a 
pinniped is visually detected approaching the vessel (i.e., to bow 
ride) or towed equipment, shutdown is not required. Furthermore, if 
there is uncertainty regarding identification of a marine mammal 
species (i.e., whether the

[[Page 17795]]

observed marine mammal(s) belongs to one of the delphinid genera for 
which shutdown is waived), PSOs must use best professional judgement in 
making the decision to call for a shutdown. Additionally, shutdown is 
required if a delphinid or pinniped detected in the exclusion zone and 
belongs to a genus other than those specified.

Vessel Strike Avoidance

    Ocean Wind will ensure that vessel operators and crew maintain a 
vigilant watch for cetaceans and pinnipeds and slow down or stop their 
vessels to avoid striking these species. Survey vessel crew members 
responsible for navigation duties will receive site-specific training 
on marine mammals sighting/reporting and vessel strike avoidance 
measures. Vessel strike avoidance measures would include the following, 
except under circumstances when complying with these requirements would 
put the safety of the vessel or crew at risk:
     Vessel operators and crews must maintain a vigilant watch 
for all protected species and slow down, stop their vessel, or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any protected species. A visual observer aboard the vessel must monitor 
a vessel strike avoidance zone based on the appropriate separation 
distance around the vessel (distances stated below). Visual observers 
monitoring the vessel strike avoidance zone may be third-party 
observers (i.e., PSOs) or crew members, but crew members responsible 
for these duties must be provided sufficient training to (1) 
distinguish protected species from other phenomena and (2) broadly to 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammal.
     All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specific areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes including 
seasonal management areas (SMAs) and dynamic management areas (DMAs) 
when in effect;
     All vessels greater than or equal to 19.8 m in overall 
length operating from November 1 through April 30 will operate at 
speeds of 10 knots or less while transiting to and from Project Area;
     All vessels must reduce their speed to 10 knots or less 
when mother/calf pairs, pods, or large assemblages of cetaceans are 
observed near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from right whales. If a whale is observed but cannot be confirmed 
as a species other than a right whale, the vessel operator must assume 
that it is a right whale and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from sperm whales and all other baleen whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel).
     When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear or any vessel that is navigationally constrained.
     These requirements do not apply in any case where 
compliance would create an imminent and serious threat to a person or 
vessel or to the extent that a vessel is restricted in its ability to 
maneuver and, because of the restriction, cannot comply.
    Members of the monitoring team will consult NMFS North Atlantic 
right whale reporting system and Whale Alert, as able, for the presence 
of North Atlantic right whales throughout survey operations, and for 
the establishment of a DMA. If NMFS should establish a DMA in the 
survey area during the survey, the vessels will abide by speed 
restrictions in the DMA.
    Project-specific training will be conducted for all vessel crew 
prior to the start of a survey and during any changes in crew such that 
all survey personnel are fully aware and understand the mitigation, 
monitoring, and reporting requirements. Prior to implementation with 
vessel crews, the training program will be provided to NMFS for review 
and approval. Confirmation of the training and understanding of the 
requirements will be documented on a training course log sheet. Signing 
the log sheet will certify that the crew member understands and will 
comply with the necessary requirements throughout the survey 
activities.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important

[[Page 17796]]

physical components of marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Proposed Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Ocean Wind would 
employ independent, dedicated, trained PSOs, meaning that the PSOs must 
(1) be employed by a third-party observer provider, (2) have no tasks 
other than to conduct observational effort, collect data, and 
communicate with and instruct relevant vessel crew with regard to the 
presence of marine mammals and mitigation requirements (including brief 
alerts regarding maritime hazards), and (3) have successfully completed 
an approved PSO training course appropriate for their designated task. 
On a case-by-case basis, non-independent observers may be approved by 
NMFS for limited, specific duties in support of approved, independent 
PSOs on smaller vessels with limited crew capacity operating in 
nearshore waters.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including exclusion zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established exclusion zones 
during survey activities. It will be the responsibility of the Lead PSO 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) would ensure 360[deg] visual coverage around the 
vessel from the most appropriate observation posts and would conduct 
visual observations using binoculars and/or night vision goggles and 
the naked eye while free from distractions and in a consistent, 
systematic, and diligent manner. PSOs may be on watch for a maximum of 
4 consecutive hours followed by a break of at least 2 hours between 
watches and may conduct a maximum of 12 hours of observation per 24-hr 
period. In cases where multiple vessels are surveying concurrently, any 
observations of marine mammals would be communicated to PSOs on all 
nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements. This would include dates, 
times, and locations of survey operations; dates and times of 
observations, location and weather; details of marine mammal sightings 
(e.g., species, numbers, behavior); and details of any observed marine 
mammal behavior that occurs (e.g., noted behavioral disturbances).

Proposed Reporting Measures

    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a final technical report will be 
provided to NMFS that fully documents the methods and monitoring 
protocols, summarizes the data recorded during monitoring, summarizes 
the number of marine mammals observed during survey activities (by 
species, when known), summarizes the mitigation actions taken during 
surveys (including what type of mitigation and the species and number 
of animals that prompted the mitigation action, when known), and 
provides an interpretation of the results and effectiveness of all 
mitigation and monitoring. Any recommendations made by NMFS must be 
addressed in the final report prior to acceptance by NMFS. All draft 
and final marine mammal and acoustic monitoring reports must be 
submitted to [email protected] and [email protected]. 
The report must contain at minimum, the following:
     PSO names and affiliations;
     Dates of departures and returns to port with port name;
     Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
     Estimated number of animals (high/low/best);
     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);

[[Page 17797]]

     Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    If a North Atlantic right whale is observed at any time by PSOs or 
personnel on any project vessels, during surveys or during vessel 
transit, Ocean Wind must immediately report sighting information to the 
NMFS North Atlantic Right Whale Sighting Advisory System: (866) 755-
6622. North Atlantic right whale sightings in any location may also be 
reported to the U.S. Coast Guard via channel 16.
    In the event that Ocean Wind personnel discover an injured or dead 
marine mammal, Ocean Wind will report the incident to the NMFS Office 
of Protected Resources (OPR) and the NMFS New England/Mid-Atlantic 
Stranding Coordinator as soon as feasible. The report would include the 
following information:
     Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
     Species identification (if known) or description of the 
animal(s) involved;
     Condition of the animal(s) (including carcass condition if 
the animal is dead);
     Observed behaviors of the animal(s), if alive;
     If available, photographs or video footage of the 
animal(s); and
     General circumstances under which the animal was 
discovered.
    In the unanticipated event of a ship strike of a marine mammal by 
any vessel involved in the activities covered by the IHA, Ocean Wind 
would report the incident to the NMFS OPR and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would 
include the following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     To the extent practicable, photographs or video footage of 
the animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. NMFS also assesses the number, intensity, and 
context of estimated takes by evaluating this information relative to 
population status. Consistent with the 1989 preamble for NMFS's 
implementing regulations (54 FR 40338; September 29, 1989), the impacts 
from other past and ongoing anthropogenic activities are incorporated 
into this analysis via their impacts on the environmental baseline 
(e.g., as reflected in the regulatory status of the species, population 
size and growth rate where known, ongoing sources of human-caused 
mortality, or ambient noise levels).
    To avoid repetition, our analysis applies to all the species listed 
in Table 4, given that NMFS expects the anticipated effects of the 
proposed survey to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the North 
Atlantic right whale--they are included as separate subsections below. 
NMFS does not anticipate that serious injury or mortality would occur 
as a result from HRG surveys, even in the absence of mitigation, and no 
serious injury or mortality is proposed to be authorized. As discussed 
in the Potential Effects section, non-auditory physical effects and 
vessel strike are not expected to occur. NMFS expects that all 
potential takes would be in the form of short-term Level B behavioral 
harassment in the form of temporary avoidance of the area or decreased 
foraging (if such activity was occurring), reactions that are 
considered to be of low severity and with no lasting biological 
consequences (e.g., Southall et al., 2007). Even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any significant realized decrease in viability for the 
affected individuals, and thus would not result in any adverse impact 
to the stock as a whole. As described above, Level A harassment is not 
expected to occur given the nature of the operations, the estimated 
size of the Level A harassment zones, and the required shutdown zones 
for certain activities.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141 m. Although this distance is assumed 
for all survey activity in estimating take numbers proposed for 
authorization and evaluated here, in reality much of the survey 
activity would involve use of non-impulsive acoustic sources with a 
reduced acoustic harassment zone of 48 m, producing expected effects of 
particularly low severity. Therefore, the ensonified area surrounding 
each vessel is relatively small compared to the overall distribution of 
the animals in the area and their use of the habitat. Feeding behavior 
is not likely to be significantly impacted as prey species are mobile 
and are broadly distributed throughout the survey area; therefore, 
marine mammals that may be temporarily displaced during survey

[[Page 17798]]

activities are expected to be able to resume foraging once they have 
moved away from areas with disturbing levels of underwater noise. 
Because of the temporary nature of the disturbance and the availability 
of similar habitat and resources in the surrounding area, the impacts 
to marine mammals and the food sources that they utilize are not 
expected to cause significant or long-term consequences for individual 
marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the proposed survey 
area and there are no feeding areas known to be biologically important 
to marine mammals within the proposed survey area. There is no 
designated critical habitat for any ESA-listed marine mammals in the 
proposed survey area.

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. As noted 
previously, elevated North Atlantic right whale mortalities began in 
June 2017 and there is an active UME. Overall, preliminary findings 
support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of right whales. 
As noted previously, the proposed survey area overlaps a migratory 
corridor BIA for North Atlantic right whales. Due to the fact that the 
proposed survey activities are temporary and the spatial extent of 
sound produced by the survey would be very small relative to the 
spatial extent of the available migratory habitat in the BIA, right 
whale migration is not expected to be impacted by the proposed survey. 
Given the relatively small size of the ensonified area, it is unlikely 
that prey availability would be adversely affected by HRG survey 
operations. Required vessel strike avoidance measures will also 
decrease risk of ship strike during migration; no ship strike is 
expected to occur during Ocean Wind's proposed activities. 
Additionally, only very limited take by Level B harassment of North 
Atlantic right whales has been requested and is being proposed by NMFS 
as HRG survey operations are required to maintain a 500 m EZ and 
shutdown if a North Atlantic right whale is sighted at or within the 
EZ. The 500 m shutdown zone for right whales is conservative, 
considering the Level B harassment isopleth for the most impactful 
acoustic source (i.e., sparker) is estimated to be 141 m, and thereby 
minimizes the potential for behavioral harassment of this species. As 
noted previously, Level A harassment is not expected due to the small 
PTS zones associated with HRG equipment types proposed for use. NMFS 
does not anticipate North Atlantic right whales takes that would result 
from Ocean Wind's proposed activities would impact annual rates of 
recruitment or survival. Thus, any takes that occur would not result in 
population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Ocean Wind's proposed survey area. Elevated humpback whale 
mortalities have occurred along the Atlantic coast from Maine through 
Florida since January 2016. Of the cases examined, approximately half 
had evidence of human interaction (ship strike or entanglement). The 
UME does not yet provide cause for concern regarding population-level 
impacts. Despite the UME, the relevant population of humpback whales 
(the West Indies breeding population, or DPS) remains stable at 
approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed in July 2018 and have occurred across Maine, New 
Hampshire, and Massachusetts. Based on tests conducted so far, the main 
pathogen found in the seals is phocine distemper virus, although 
additional testing to identify other factors that may be involved in 
this UME are underway. The UME does not yet provide cause for concern 
regarding population-level impacts to any of these stocks. For harbor 
seals, the population abundance is over 75,000 and annual M/SI (350) is 
well below PBR (2,006) (Hayes et al., 2020). The population abundance 
for gray seals in the United States is over 27,000, with an estimated 
abundance, including seals in Canada, of approximately 450,000. In 
addition, the abundance of gray seals is likely increasing in the U.S. 
Atlantic as well as in Canada (Hayes et al., 2020).
    The required mitigation measures are expected to reduce the number 
and/or severity of proposed takes for all species listed in Table 4, 
including those with active UMEs, to the level of least practicable 
adverse impact. In particular they would provide animals the 
opportunity to move away from the sound source throughout the survey 
area before HRG survey equipment reaches full energy, thus preventing 
them from being exposed to sound levels that have the potential to 
cause injury (Level A harassment) or more severe Level B harassment. No 
Level A harassment is anticipated, even in the absence of mitigation 
measures, or proposed for authorization.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or proposed 
for authorization;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed for authorization;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area;
     While the survey area is within areas noted as a migratory 
BIA for North Atlantic right whales, the activities would occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities would

[[Page 17799]]

not affect migration. In addition, mitigation measures to shutdown at 
500 m to minimize potential for Level B behavioral harassment would 
limit any take of the species; and
     The proposed mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS proposes to authorize incidental take of 16 marine mammal 
species (with 17 managed stocks). The total amount of takes proposed 
for authorization relative to the best available population abundance 
is less than 22 percent for one stock (bottlenose dolphin northern 
coastal migratory stock), less than 3 percent for the North Atlantic 
right whale, and less than 1 percent for all other species and stocks, 
which NMFS preliminarily finds are small numbers of marine mammals 
relative to the estimated overall population abundances for those 
stocks. See Table 4.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks would 
not have an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS OPR consults internally whenever we propose to authorize take for 
endangered or threatened species, in this case with NMFS Greater 
Atlantic Regional Fisheries Office (GARFO).
    The NMFS OPR is proposing to authorize the incidental take of four 
species of marine mammals which are listed under the ESA: The North 
Atlantic right, fin, sei, and sperm whales. NMFS OPR has requested 
initiation of section 7 consultation with NMFS GARFO for the issuance 
of this IHA. NMFS will conclude the ESA section 7 consultation prior to 
reaching a determination regarding the proposed issuance of the 
authorization.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Ocean Wind for conducting marine site characterization 
surveys off the coast of New Jersey for one year from the date of 
issuance, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are incorporated. A draft of the proposed IHA 
can be found at www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA for the proposed marine 
site characterization surveys. We also request at this time comment on 
the potential Renewal of this proposed IHA as described in the 
paragraph below. Please include with your comments any supporting data 
or literature citations to help inform decisions on the request for 
this IHA or a subsequent Renewal IHA.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
Renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical, or nearly identical, activities as described in the 
Description of Proposed Activity section of this notice is planned or 
(2) the activities as described in the Description of Proposed Activity 
section of this notice would not be completed by the time the IHA 
expires and a Renewal would allow for completion of the activities 
beyond that described in the Dates and Duration section of this notice, 
provided all of the following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    Upon review of the request for Renewal, the status of the affected 
species or stocks, and any other pertinent information, NMFS determines 
that there are no more than minor changes in the activities, the 
mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: March 31, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-07014 Filed 4-5-21; 8:45 am]
BILLING CODE 3510-22-P