Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Delaware and New Jersey, 33664-33682 [2021-13530]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 120 (Friday, June 25, 2021)]
[Notices]
[Pages 33664-33682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13530]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB162]


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

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

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an IHA to Garden State Offshore Energy, LLC 
(Garden State) to incidentally harass, by Level B harassment, marine 
mammals incidental to marine site characterization surveys offshore of 
Delaware and New Jersey in the area of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0482) and along potential export cable routes 
to landfall locations in Delaware and New Jersey.

DATES: This authorization is effective from June 11, 2021 through June 
10, 2022.

FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected 
Resources, NMFS, (301) 427-8421. 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.

[[Page 33665]]

Summary of Request

    On November 2, 2020, NMFS received a request from Garden State for 
an IHA to take marine mammals incidental to marine site 
characterization surveys offshore of Delaware and New Jersey in the 
area of the Commercial Lease of Submerged Lands for Renewable Energy 
Development on the Outer Continental Shelf (OCS-A 0482) and along 
potential export cable routes (ECRs) to a landfall location in Delaware 
and New Jersey. Following NMFS' review of the draft application, a 
revised version was submitted on March 30, 2021. The application was 
deemed adequate and complete on April 5, 2021. Garden State's request 
is for take of a small number of 16 species of marine mammals (with 17 
managed stocks) by Level B harassment only. Neither Garden State nor 
NMFS expects serious injury or mortality to result from this activity 
and, therefore, an IHA is appropriate.

Description of Specified Activity

Overview

    As part of its overall marine site characterization survey 
operations, Garden State plans to conduct high-resolution geophysical 
(HRG) surveys in the Lease Area and along potential ECRs to landfall 
locations in Delaware and New Jersey.
    The purpose of the marine site characterization surveys is to 
obtain a baseline assessment of seabed (geophysical, geotechnical, and 
geohazard), ecological, and archeological conditions within the 
footprint of offshore wind facility development. Surveys are also 
conducted to support engineering design and to map unexploded ordnance. 
Underwater sound resulting from Garden State's site characterization 
survey activities, specifically HRG surveys, has the potential to 
result in incidental take of marine mammals in the form of Level B 
harassment. Table 1 identifies representative survey equipment with the 
expected potential to result in exposure of marine mammals and 
potentially result in take. The survey activities planned by Garden 
State are described in detail in the notice of the proposed IHA (86 FB 
22160; April 27, 2021).

Dates and Duration

    The estimated duration of HRG survey activity is expected to be up 
to 350 survey days over the course of a single year (``survey day'' 
defined as a 24-hour (hr) activity period), with 200 vessel survey days 
expected in the Lease Area and 150 vessel survey days expected in the 
ECR area. This schedule is based on 24-hour operations and includes 
potential down time due to inclement weather. Although some shallow-
water locations may be surveyed by a smaller vessel during daylight 
hours only, the estimated number of survey days assumes uniform 24-hr 
operations.

Specific Geographic Region

    The survey activities will occur within the Project Area which 
includes the Lease Area and potential ECRs to landfall locations, as 
shown in Figure 1 of the notice of the proposed IHA. The Lease Area is 
approximately 284 square kilometers (km\2\) and is within the Delaware 
Wind Energy Area (WEA) of the Bureau of Ocean Energy Management (BOEM) 
Mid-Atlantic planning area. Water depths in the Lease Area range from 
15 meters (m) to 30 m. Water depths in the ECR area extend from the 
shoreline to approximately 30 m.

                                                 Table 1--Summary of Representative HRG Survey Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                        CF = Crocker and
                                 Acoustic source    Operating    SLrms (dB    SL0-pk (dB    Pulse duration    Repetition   Beamwidth      Fratantonio
           Equipment                   type         frequency   re 1 [mu]Pa  re 1 [mu]Pa       (width)        rate (Hz)    (degrees)      (2016) MAN =
                                                      (kHz)          m)           m)        (millisecond)                                 Manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Non-Impulsive, Non-Parametric, Shallow Sub-Bottom Profilers (CHIRP Sonars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ET 216 (2000DS or 3200 top      Non-impulsive,       2-16; 2-8          195  ...........                 20            6           24  MAN.
 unit).                          mobile,
                                 intermittent.
ET 424........................  Non-impulsive,            4-24          176  ...........                3.4            2           71  CF.
                                 mobile,
                                 intermittent.
ET 512........................  Non-impulsive,          0.7-12          179  ...........                  9            8           80  CF.
                                 mobile,
                                 intermittent.
GeoPulse 5430A................  Non-impulsive,            2-17          196  ...........                 50           10           55  MAN.
                                 mobile,
                                 intermittent.
Teledyne Benthos Chirp III--    Non-impulsive,             2-7          197  ...........                 60           15          100  MAN.
 TTV 170.                        mobile,
                                 intermittent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Impulsive, Medium Sub-Bottom Profilers (Sparkers & Boomers)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AA, Dura-spark UHD (400 tips,   Impulsive, mobile      0.3-1.2          203          211                1.1            4         Omni  CF.
 500 J) 1.
AA, Dura-spark UHD (400+400) 1  Impulsive, mobile      0.3-1.2          203          211                1.1            4         Omni  CF (AA Dura-spark
                                                                                                                                        UHD Proxy).
GeoMarine, Geo-Source dual 400  Impulsive, mobile        0.4-5          203          211                1.1            2         Omni  CF (AA Dura-spark
 tip sparker (800 J) 1.                                                                                                                 UHD Proxy).
GeoMarine Geo-Source 200 tip    Impulsive, mobile      0.3-1.2          203          211                1.1            4         Omni  CF (AA Dura-spark
 sparker (400 J) 1.                                                                                                                     UHD Proxy).
GeoMarine Geo-Source 200-400    Impulsive, mobile      0.3-1.2          203          211                1.1            4         Omni  CF (AA Dura-spark
 tip light weight sparker (400                                                                                                          UHD Proxy).
 J) 1.
GeoMarine Geo-Source 200-400    Impulsive, mobile      0.3-1.2          203          211                1.1            4         Omni  CF (AA Dura-spark
 tip freshwater sparker (400                                                                                                            UHD Proxy).
 J) 1.

[[Page 33666]]

 
AA, triple plate S-Boom.......  Impulsive, mobile        0.1-5          205          211                0.6            4           80  CF
(700-1,000 J) 2...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
- = not applicable; NR = not reported; [mu]Pa = micropascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; HF = high-frequency; J = joule; LF =
  low-frequency; Omni = omnidirectional source; re = referenced to; PK = zero-to-peak sound pressure level; SL = source level; SPLrms = root-mean-square
  sound pressure level; UHD = ultra-high definition; WFA = weighting factor adjustments.
1 The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
  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-Boo.

    As noted above, a detailed description of Garden State's planned 
surveys is provided in the Federal Register notice for the proposed IHA 
(86 FR 22160; April 27, 2021). Since that time, no changes have been 
made to the planned survey activities; therefore, a detailed 
description if not provided here. Please refer to that Federal Register 
notice for the more thorough description of the specified activity. 
Required mitigation, monitoring, and reporting measures are described 
in detail later in this document (please see Mitigation and Monitoring 
and Reporting).

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Garden State was 
published in the Federal Register on April 27, 2021 (86 FR 22160). 
During the 30-day comment period, NMFS received comments from: (1) A 
group of environmental non-governmental organizations (ENGOs) including 
the Natural Resources Defense Council, Conservation Law Foundation, 
National Wildlife Federation, Defenders of Wildlife, Southern 
Environmental Law Center, Wildlife Conservation Society, Surfrider 
Foundation, Mass Audubon, Friends of the Earth, International Fund for 
Animal Welfare, NY4WHALES, WDC Whale and Dolphin Conservation, Marine 
Mammal Alliance Nantucket, Gotham Whale, All Our Energy, Seatuck 
Environmental Association, Inland Ocean Coalition, Nassau Hiking & 
Outdoor Club, and Connecticut Audubon Society; and (2) the Delaware 
Department of Resources and Environmental Control (DNREC).
    NMFS has posted the comments online at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. Please see the letters for full detail and 
rationale for the comments.
    Comment 1: The ENGOs recommended that NMFS incorporate additional 
data sources into calculations of marine mammal density and take and 
that NMFS must ensure all available data are used to ensure that any 
potential shifts in North Atlantic right whale habitat usage are 
reflected in estimations of marine mammal density and take. The ENGOs 
asserted in general that the density models used by NMFS do not fully 
reflect the abundance, distribution, and density of marine mammals for 
the U.S. East Coast and therefore result in an underestimate of take.
    Response: At the outset of their letter, the ENGOs note that the 
comments reflect overarching concerns regarding NMFS' IHAs for marine 
site characterization survey (including HRG survey) activities required 
for offshore wind energy development, as well as their intention that 
the comments be considered in relation to all authorizations associated 
with marine site characterization activities for offshore wind energy 
off the U.S. East Coast. The comments provided in the letter apparently 
focus concern on available data regarding the Massachusetts and Rhode 
Island and Massachusetts Wind Energy Areas, and on North Atlantic right 
whale habitat usage within those areas. As such, the specific comments 
pertaining to those data and right whale habitat usage within those 
areas are not germane to this specific action, i.e., issuance of an IHA 
associated with HRG survey activity off of Delaware and New Jersey. We 
address the general comments regarding sufficiency of the available 
data on marine mammal occurrence below.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Lab (MGEL) (Roberts et al. 2016, 2017, 2018, 2020) 
represent the best available scientific information concerning marine 
mammal occurrence within the U.S. Atlantic Ocean. Density models were 
originally developed for all cetacean taxa in the U.S. Atlantic 
(Roberts et al., 2016); more information, including the model results 
and supplementary information for each of those models, is available at 
https://seamap.env.duke.edu/models/Duke/EC/. These models provided key 
improvements over previously available information, by incorporating 
additional aerial and shipboard survey data from NMFS and from other 
organizations collected over the period 1992-2014, incorporating 60 
percent more shipboard and 500 percent more aerial survey hours than 
did previously available models; controlling for the influence of sea 
state, group size, availability bias, and perception bias on the 
probability of making a sighting; and modeling density from an expanded 
set of eight physiographic and 16 dynamic oceanographic and biological 
covariates. In subsequent years, certain models have been updated on 
the basis of additional data as well as methodological improvements. In 
addition, a new density model for seals was produced as part of the 
2017-18 round of model updates.
    Of particular note, Roberts et al. (2020) further updated density 
model results for North Atlantic right whales by incorporating 
additional sighting data and implementing three major changes: 
increasing spatial resolution, generating monthly estimates on three 
time periods of survey data, and dividing the study area into five 
discrete regions. This most recent update--model version 9 for North 
Atlantic right whales--was undertaken with the following objectives 
(Roberts et al., 2020):
     To account for recent changes to right whale 
distributions, the model should be based on survey data that extend 
through 2018, or later if possible. In addition to updates from 
existing collaborators, data should be solicited from two survey 
programs not used in prior model versions:
    [cir] Aerial surveys of the Massachusetts and Rhode Island Wind 
Energy Areas led by New England Aquarium (Kraus et

[[Page 33667]]

al., 2016), spanning 2011-2015 and 2017-2018.
    [cir] Recent surveys of New York waters, either traditional aerial 
surveys initiated by the New York State Department of Environmental 
Conservation in 2017, or digital aerial surveys initiated by the New 
York State Energy Research and Development Authority in 2016, or both.
     To reflect a view in the right whale research community 
that spatiotemporal patterns in right whale density changed around the 
time the species entered a decline in approximately 2010, consider 
basing the new model only on recent years, including contrasting 
``before'' and ``after'' models that might illustrate shifts in 
density, as well as a model spanning both periods, and specifically 
consider which model would best represent right whale density in the 
near future.
     To facilitate better application of the model to near-
shore management questions, extend the spatial extent of the model 
farther in-shore, particularly north of New York.
     Increase the resolution of the model beyond 10 kilometers 
(km), if possible.
    All of these objectives were met in developing the most recent 
update to the North Atlantic right whale density model. The commenters 
do not cite this most recent report, and the comments suggest that the 
aforementioned data collected by the New England Aquarium is not 
reflected in the model. Therefore, it is unclear whether the commenters 
are aware of the most recently available data, which is used herein.
    As noted above, NMFS has determined that the Roberts et al. suite 
of density models represent the best available scientific information, 
and we specifically note that the 2020 version of the North Atlantic 
right whale model may address some of the specific concerns provided by 
the commenters. (Note that there has been an additional minor model 
update affecting predictions for Cape Cod Bay in the month of December, 
which is not relevant to the location of this survey off of Delaware 
and New Jersey.) However, NMFS acknowledges that there will always be 
additional data that is not reflected in the models and that may inform 
our analyses, whether because the data were not made available to the 
model authors or because the data is more recent than the latest model 
version for a specific taxon. NMFS will review any recommended data 
sources to evaluate their applicability in a quantitative sense (e.g., 
to an estimate of take numbers) and, separately, to ensure that 
relevant information is considered qualitatively when assessing the 
impacts of the specified activity on the affected species or stocks and 
their habitat. NMFS will continue to use the best available scientific 
information, and we welcome future input from interested parties on 
data sources that may be of use in analyzing the potential presence and 
movement patterns of marine mammals, including North Atlantic right 
whales, in U.S. Atlantic waters.
    The ENGOs cited several additional sources of information that are 
not reflected in currently available density models, including 
sightings databases and passive acoustic monitoring (PAM) efforts. 
However, no specific recommendations were made with regard to use of 
this information in informing the take estimates. Rather, the 
commenters reference a disparate array of data sources (some which are 
indeed reflected in the most recent models) and suggest that NMFS 
should ``collate and integrate these and more recent data sets to more 
accurately reflect marine mammal presence for future IHAs and other 
work.'' NMFS would welcome in the future constructive suggestions as to 
how these objectives might be more effectively accomplished. NMFS used 
the best scientific information available at the time the analyses for 
the proposed IHA were conducted, and has considered all available data, 
including sources referenced by the commenters, in reaching its 
determinations in support of issuance of the IHA requested by Garden 
State.
    Comment 2: The ENGOs noted that the Roberts et al. model does not 
differentiate between species of pilot whale or seal or between stocks 
of bottlenose dolphin. The ENGOs express concern that, as a result, 
NMFS may not conduct the appropriate species-or stock-specific 
negligible impact analysis. The ENGOs also imply that use of these 
models may produce inaccurate take numbers by stating that 
``[m]iscalculation of take levels based on incomplete data could have 
serious implications for the future conservation of these species and 
stocks.''
    Response: The MMPA requires that species- or stock-specific 
negligible impact determinations be made, and NMFS has done so. In this 
case, NMFS has authorized take numbers specific to each affected 
species or stock. As a general matter, NMFS is unaware of any available 
density data which differentiates between species of pilot whales or 
seals, or stocks of bottlenose dolphins. However, lack of such data 
does not preclude the requisite species- or stock-specific findings. In 
the event that an amount of take is authorized at the guild or species 
level only, e.g., for pilot whales or bottlenose dolphins, 
respectively, NMFS may adequately evaluate the effects of the activity 
by conservatively assuming (for example) that all takes authorized for 
the guild or species would accrue to each potentially affected species 
or stock. In this case, NMFS has apportioned the overall take number 
for bottlenose dolphins according to stock, as described in the 
Estimated Take section and, for pilot whales, has assigned take on the 
basis of an assumed group size of 10 for each potentially affected 
species. NMFS does not agree that use of these models is likely to 
result in miscalculation of take levels, and the commenters do not 
provide support for this statement.
    Comment 3: The ENGOs assert that NMFS has not acknowledged the use 
of areas south of Nantucket and Martha's Vineyard as important habitat 
for foraging and social behavior for North Atlantic right whales, but 
rather that NMFS believes the areas are important solely as a migratory 
pathway. The commenters also asserted that NMFS is overly reliant on 
the description of biologically important areas (BIA) provided in 
LaBrecque et al. (2015), stating that ``NMFS should not rely on the 
North Atlantic right whale migratory corridor BIA as the sole indicator 
of habitat importance for the species.''
    Response: The specified activity associated with the IHA addressed 
herein is located off of Delaware and New Jersey. Therefore, this 
comment is not relevant to issuance of this IHA. However, as a general 
matter, NMFS disagrees with the commenters' assertion. Although NMFS 
has in other notices discussed at length the use of the referenced area 
as a migratory pathway (and recognition of such use through the area's 
description as a BIA for right whales), we have also acknowledged the 
more recent data and its implications for the use of the referenced 
area (85 FR 63508; December 7, 2018; 86 FR 11930; March 1, 2021). 
Similarly, NMFS does not agree with the assertion that our 
understanding of important habitat for marine mammals stems solely from 
existing, described BIAs. NMFS concurs with the statement that BIAs are 
not comprehensive and are intended to be periodically reviewed and 
updated and we routinely review newly available information to inform 
our understanding of important marine mammal habitat. In this case, the 
specified geographical region does not include important habitat other 
than that described as being the migratory pathway for right whales.
    Comment 4: The ENGOs commented that the waters off Cape Hatteras, 
North Carolina, have high marine mammal

[[Page 33668]]

biodiversity and that marine mammals occur at unusually high densities 
off Cape Hatteras compared to other areas along the East Coast. The 
ENGOs asserted that this area demands special attention from NMFS.
    Response: NMFS concurs with the commenters regarding the importance 
of deepwater areas off of Cape Hatteras. However, the specific activity 
associated with the IHA addressed herein does not occur off of Cape 
Hatteras and, in general, the site characterization surveys conducted 
in support of wind energy development that are the subject of the ENGO 
comment letter occur in shallow water (not the area of high 
biodiversity and density referenced by commenters). When appropriate, 
NMFS has accorded special attention to the development of additional 
mitigation for activities conducted in that location (83 FR 63268; 
December 7, 2018). NMFS uses the best available scientific information 
when analyzing potential impacts to marine mammals and in developing 
prescribed mitigation sufficient to meet the MMPA's ``least practicable 
adverse impact'' standard, and has done so in this case.
    Comment 5: The ENGOs asserted that NMFS must analyze cumulative 
impacts to North Atlantic right whales and other marine mammal species 
and stocks and ensure appropriate mitigation of these cumulative 
impacts. The ENGOs express particular concern about the cumulative 
impacts of survey activities off Rhode Island and Massachusetts on 
North Atlantic right whales. They further recommended that NMFS develop 
programmatic incidental take regulations applicable to site 
characterization activities. DNREC noted that an IHA was recently 
issued to Skipjack for take of marine mammals incidental to marine site 
characterization surveys offshore of Delaware (86 FR 18943; April 12, 
2021) and recommended that NMFS consider the potential cumulative 
impacts of Skipjack and Garden State surveys prior to issuing an IHA to 
Garden State.
    Response: Neither the MMPA nor NMFS' codified implementing 
regulations call for consideration of other unrelated activities and 
their impacts on populations. The preamble for NMFS' implementing 
regulations (54 FR 40338; September 29, 1989) states in response to 
comments that the impacts from other past and ongoing anthropogenic 
activities are to be incorporated into the negligible impact analysis 
via their impacts on the baseline. Consistent with that direction, NMFS 
has factored into its negligible impact analysis the impacts of other 
past and ongoing anthropogenic activities via their impacts on the 
baseline, e.g., as reflected in the density/distribution and status of 
the species, population size and growth rate, and other relevant 
stressors. The 1989 implementing regulations also addressed public 
comments regarding cumulative effects from future, unrelated 
activities. There NMFS stated that such effects are not considered in 
making findings under section 101(a)(5) concerning negligible impact. 
In this case, both this IHA, as well as other IHAs currently in effect 
or proposed within the specified geographic region, are appropriately 
considered an unrelated activity relative to the others. The IHAs are 
unrelated in the sense that they are discrete actions under section 
101(a)(5)(D), issued to discrete applicants. Therefore, the IHA issued 
to Skipjack for take associated with marine site characterization 
surveys is considered discrete from and unrelated to Garden State's 
IHA.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of the specified activity or 
class of activities that can be expected to result in incidental taking 
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, Garden State was the applicant for the IHA, and we are 
responding to the specified activity as described in that application 
(and making the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, we also indicated (1) that NMFS would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis, 
and (2) that reasonably foreseeable cumulative effects would also be 
considered under section 7 of the ESA for ESA-listed species. In this 
case, cumulative impacts have been adequately addressed under NEPA in 
prior environmental analyses that form the basis for NMFS' 
determination that this action is appropriately categorically excluded 
from further NEPA analysis. Regarding activities in the Mid- and South 
Atlantic region, in 2018 NMFS signed a Record of Decision that (1) 
adopted the Bureau of Ocean Energy Management's 2014 Final Programmatic 
Environmental Impact Statement that evaluated the direct, indirect, and 
cumulative impacts of geological and geophysical survey activities on 
the Mid- and South Atlantic Outer Continental Shelf to support NMFS' 
analysis associated with issuance of incidental take authorizations 
pursuant to sections 101(a)(5)(A) or (D) of the MMPA and the 
regulations governing the taking and importing of marine mammals (50 
CFR part 216), and (2) in accordance with 40 CFR 1505.2, announced and 
explained the basis for our decision to review and potentially issue 
incidental take authorizations under the MMPA on a case-by-case basis, 
if appropriate. Separately, NMFS has previously written Environmental 
Assessments (EA) that addressed cumulative impacts related to 
substantially similar activities, in similar locations, e.g., 2019 
[Oslash]rsted EA for survey activities offshore southern New England; 
2019 Avangrid EA for survey activities offshore North Carolina and 
Virginia; 2018 Deepwater Wind EA for survey activities offshore 
Delaware, Massachusetts, and Rhode Island.
    Separately, cumulative effects were analyzed as required through 
NMFS' required intra-agency consultation under section 7 of the ESA, 
which determined that NMFS' action of issuing the IHA is not likely to 
adversely affect listed marine mammals or their critical habitat.
    Finally, the ENGOs suggested that NMFS should promulgate 
programmatic incidental take regulations for site characterization 
activities. Although NMFS is open to this approach, we have not 
received a request for such regulations. The ENGOs do not explain their 
apparent position that NMFS may advance regulations absent a requester.
    Comment 6: The ENGOs state that NMFS should not adjust estimated 
take numbers for large whales on the basis of assumed efficacy of 
mitigation requirements, and assert that NMFS' assumptions regarding 
effectiveness of mitigation requirements are unfounded.
    Response: In this case, NMFS did not propose to adjust downward any 
estimated take number based on proposed mitigation measures, and has 
not done so in the issued IHA. Therefore, the comment is not relevant 
to this specific action. Generally, NMFS does not agree with the 
apparent contention that it is never appropriate to reduce estimated 
take numbers based on anticipated implementation and effectiveness of 
mitigation measures, and will continue to evaluate the appropriateness 
of doing so on a case-specific basis.
    While we acknowledge the commenters' concerns regarding unfounded 
assumptions concerning the

[[Page 33669]]

effectiveness of mitigation requirements in reducing actual take, it is 
important to also acknowledge the circumstances of a particular action. 
In most cases, the maximum estimated Level B harassment zone associated 
with commonly-used acoustic sources is approximately 150 meters (m), 
whereas the typically-required shutdown zone for North Atlantic right 
whales is 500 m. For North Atlantic right whales, NMFS expects that 
this requirement will indeed be effective in reducing actual take below 
the estimated amount, which typically does not account for the 
beneficial effects of mitigation.
    Comment 7: The ENGOs state that NMFS must require mitigation 
measures that meet the least practicable adverse impact standard, imply 
that the requirements prescribed by NMFS have not met that standard, 
and recommend various measures that the commenters state NMFS should 
require.
    The ENGOs first state that NMFS should prohibit site assessment and 
characterization activities involving equipment with noise levels that 
the commenters assert could cause injury or harassment to North 
Atlantic right whales during periods of highest risk, which the 
commenters define as times of highest relative density of animals 
during their migration, and times when mother-calf pairs, pregnant 
females, surface active groups, or aggregations of three or more whales 
are, or are expected to be, present. The commenters additionally state 
that NMFS should require that work commence only during daylight hours 
and good visibility conditions to maximize the probability that marine 
mammals are detected and confirmed clear of the exclusion zone before 
activities begin. If the activity is halted or delayed because of 
documented or suspected North Atlantic right whale presence in the 
area, the commenters state that NMFS should require operators to wait 
until daylight hours and good visibility conditions to recommence.
    Response: NMFS acknowledges the limitations inherent in detection 
of marine mammals at night. However, no injury is expected to result 
even in the absence of mitigation, given the characteristics of the 
sources planned for use (supported by the very small estimated Level A 
harassment zones). The ENGOs do not provide any support for the 
apparent contention that injury is a potential outcome of these 
activities. Regarding Level B harassment, any potential impacts would 
be limited to short-term behavioral responses, as described in greater 
detail herein. The commenters establish that the status of North 
Atlantic right whales in particular is precarious. NMFS agrees in 
general with the discussion of this status provided by the commenters. 
NMFS also agrees with the commenters that certain recommended 
mitigation requirements, e.g., avoiding impacts in places and times of 
greatest importance to marine mammals, limiting operations to times of 
greatest visibility, would be effective in reducing impacts. However, 
the commenters fail entirely to establish that Garden State's specified 
site assessment and characterization survey activities--or site 
assessment and characterization survey activities in general--would 
have impacts on North Atlantic right whales (or any other species) such 
that operational limitations would be warranted. In fact, NMFS 
considers this category of survey operations to be near de minimis, 
with the potential for Level A harassment for any species to be 
discountable and the severity of Level B harassment (and, therefore, 
the impacts of the take event on the affected individual), if any, to 
be low. In that context, there is no need for more restrictive 
mitigation requirements, and the commenters offer no justification to 
the contrary.
    Restricting surveys in the manner suggested by the commenters may 
reduce marine mammal exposures by some degree in the short term, but 
would not result in any significant reduction in either intensity or 
duration of noise exposure. Vessels would also potentially be on the 
water for an extended time introducing noise into the marine 
environment. The restrictions recommended by the commenters could 
result in the surveys spending increased time on the water, which may 
result in greater overall exposure to sound for marine mammals; thus 
the commenters have not demonstrated that such a requirement would 
result in a net benefit. Furthermore, restricting the applicant to 
begin operations only during daylight hours would have the potential to 
result in lengthy shutdowns of the survey equipment, which could result 
in the applicant failing to collect the data they have determined is 
necessary and, subsequently, the need to conduct additional surveys the 
following year. This would result in significantly increased costs 
incurred by the applicant. Thus, the restriction suggested by the 
commenters would not be practicable for the applicant to implement. 
Finally, NMFS is requiring the use of night vision equipment (night 
vision goggles with thermal clip-ons and infrared/thermal imaging 
technology) to facilitate detection of marine mammals approaching and 
within the exclusion zones during pre-start clearance and active survey 
operations during nighttime operations, In consideration of the likely 
effects of the activity on marine mammals absent mitigation, potential 
unintended consequences of the measures as proposed by the commenters, 
practicability of the recommended measures for the applicant, and 
required use of night vision equipment, NMFS has determined that 
restricting operations as recommended is not warranted or practicable 
in this case.
    Comment 8: The ENGOs recommended that NMFS establish an exclusion 
zone (EZ) of 1,000-m around each vessel conducting activities with 
noise levels that they assert could result in injury or harassment to 
North Atlantic right whales, and a minimum EZ of 500 m for all other 
large whale species and strategic stocks of small cetaceans.
    Response: NMFS disagrees with this recommendation, and has 
determined that the EZs included here are sufficiently protective. We 
note that the 500-m EZ for North Atlantic right whales exceeds the 
modeled distance to the largest Level B harassment isopleth distance 
(141 m) by a factor of more than three. The commenters do not provide 
any justification for the contention that the existing EZs are 
insufficient, and do not provide any rationale for their recommended 
alternatives (other than that they are larger).
    Comment 9: The ENGOs stated that NMFS' requirements related to 
visual monitoring are inadequate. The commenters specifically noted 
their belief that a requirement for one Protected Species Observer 
(PSO) to be on duty during daylight hours is insufficient, and 
recommended that NMFS require the use of infrared equipment to support 
visual monitoring by PSOs during periods of darkness. DNREC also 
recommended that infrared equipment be used to support visual 
monitoring by PSOs during periods of darkness.
    Response: NMFS typically requires that a single PSO must be 
stationed at the highest vantage point and engaged in general 360-
degree scanning during daylight hours only. Although NMFS acknowledges 
that the single PSO cannot reasonably maintain observation of the 
entire 360-degree area around the vessel, it is reasonable to assume 
that the single PSO engaged in continual scanning of such a small area 
(i.e., 500-m EZ, which is greater than the maximum 141-m harassment 
zone) will

[[Page 33670]]

be successful in detecting marine mammals that are available for 
detection at the surface. The monitoring reports submitted to NMFS have 
demonstrated that PSOs active only during daylight operations are able 
to detect marine mammals and implement appropriate mitigation measures. 
As far as visual monitoring at night, we have not historically required 
visual monitoring at night because available information demonstrated 
that such monitoring should not be considered effective. However, as 
night vision technology has continued to improve, NMFS has adapted its 
practice, and two PSOs are required to be on duty at night. Moreover, 
as previously noted, NMFS has included a requirement in the final IHA 
that night-vision equipment (i.e., night-vision goggles with thermal 
clip-ons and infrared/thermal imaging technology) must be available for 
use.
    Regarding specific technology cited by the ENGOs, NMFS appreciates 
the suggestion and agrees that relatively new detection platforms have 
shown promising results. Following review of the ENGO's letter, we 
considered these and other supplemental platforms as suggested. 
However, to our knowledge, there is no clear guidance available for 
operators regarding characteristics of effective systems, and the 
detection systems cited by the commenters are typically extremely 
expensive, and are therefore considered impracticable for use in most 
surveys. The commenters do not provide specific suggestions with regard 
to recommended systems or characteristics of systems. NMFS does not 
generally consider requirements to use systems such as those cited by 
the commenters to currently be practicable.
    Comment 10: The ENGOs recommended that NMFS should require PAM at 
all times, both day and night, to maximize the probability of detection 
for North Atlantic right whales, and other species and stocks. DNREC 
also recommended the combined use of visual monitoring and PAM, 
especially during nighttime operations, to minimize impacts on 
protected species.
    Response: The foremost concern expressed by the ENGOs in making the 
recommendation to require use of PAM is with regard to North Atlantic 
right whales. However, the commenters do not explain why they expect 
that PAM would be effective in detecting vocalizing mysticetes. It is 
generally well-accepted fact that, even in the absence of additional 
acoustic sources, using a towed passive acoustic sensor to detect 
baleen whales (including right whales) is not typically effective 
because the noise from the vessel, the flow noise, and the cable noise 
are in the same frequency band and will mask the vast majority of 
baleen whale calls. Vessels produce low-frequency noise, primarily 
through propeller cavitation, with main energy in the 5-300 Hertz (Hz) 
frequency range. Source levels range from about 140 to 195 decibel (dB) 
re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), 
depending on factors such as ship type, load, and speed, and ship hull 
and propeller design. Studies of vessel noise show that it appears to 
increase background noise levels in the 71-224 Hz range by 10-13 dB 
(Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM 
systems employ hydrophones towed in streamer cables approximately 500 m 
behind a vessel. Noise from water flow around the cables and from 
strumming of the cables themselves is also low-frequency and typically 
masks signals in the same range. Experienced PAM operators 
participating in a recent workshop (Thode et al., 2017) emphasized that 
a PAM operation could easily report no acoustic encounters, depending 
on species present, simply because background noise levels rendered any 
acoustic detection impossible. The same workshop report stated that a 
typical eight-element array towed 500 m behind a vessel could be 
expected to detect delphinids, sperm whales, and beaked whales at the 
required range, but not baleen whales, due to expected background noise 
levels (including seismic noise, vessel noise, and flow noise).
    There are several additional reasons why we do not agree that use 
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM 
can be an important tool for augmenting detection capabilities in 
certain circumstances, its utility in further reducing impact during 
HRG survey activities is limited. First, for this activity, the area 
expected to be ensonified above the Level B harassment threshold is 
relatively small (a maximum of 141 m)--this reflects the fact that, to 
start with, the source level is comparatively low and the intensity of 
any resulting impacts would be lower level and, further, it means that 
inasmuch as PAM will only detect a portion of any animals exposed 
within a zone, the overall probability of PAM detecting an animal in 
the harassment zone is low--together these factors support the limited 
value of PAM for use in reducing take with smaller zones. PAM is only 
capable of detecting animals that are actively vocalizing, while many 
marine mammal species vocalize infrequently or during certain 
activities, which means that only a subset of the animals within the 
range of the PAM would be detected (and potentially have reduced 
impacts). Additionally, localization and range detection can be 
challenging under certain scenarios. For example, odontocetes are fast 
moving and often travel in large or dispersed groups which makes 
localization difficult.
    Given that the effects to marine mammals from the types of surveys 
authorized in this IHA are expected to be limited to low level 
behavioral harassment even in the absence of mitigation, the limited 
additional benefit anticipated by adding this detection method 
(especially for right whales and other low frequency cetaceans, species 
for which PAM has limited efficacy), and the cost and impracticability 
of implementing a full-time PAM program, we have determined the current 
requirements for visual monitoring are sufficient to ensure the least 
practicable adverse impact on the affected species or stocks and their 
habitat.
    Comment 11: The ENGOs recommended that NMFS require applicants to 
use the lowest practicable source level.
    Response: Wind energy developers selected the equipment necessary 
during HRG surveys to achieve their objectives. As part of the analysis 
for all HRG IHAs, NMFS evaluated the effects expected as a result of 
use of this equipment, made the necessary findings, and imposed 
mitigation requirements sufficient to achieve the least practicable 
adverse impact on the affected species and stocks of marine mammals. It 
is not within NMFS' purview to make judgments regarding what 
constitutes the ``lowest practicable source level'' for an operator's 
survey objectives.
    Comment 12: The ENGOs recommended that NMFS require all offshore 
wind energy related project vessels operating within or transiting to/
from survey areas, regardless of size, to observe a 10-knot speed 
restriction during the entire survey period.
    Response: NMFS does not concur with these measures. NMFS has 
analyzed the potential for ship strike resulting from various HRG 
activities and has determined that the mitigation measures specific to 
ship strike avoidance are sufficient to avoid the potential for ship 
strike. These include: A requirement that all vessel operators comply 
with 10 knot (18.5 km/hour) or less speed restrictions in any 
established dynamic management area (DMA) or seasonal management area 
(SMA); a requirement that all vessel operators reduce vessel speed to 
10

[[Page 33671]]

knots (18.5 km/hour) or less when any large whale, mother/calf pairs, 
pods, or large assemblages of non-delphinid cetaceans are observed 
within 100 m of an underway vessel; a requirement that all survey 
vessels maintain a separation distance of 500 m or greater from any 
sighted North Atlantic right whale; a requirement that, if underway, 
vessels must steer a course away from any sighted North Atlantic right 
whale at 10 knots or less until the 500 m minimum separation distance 
has been established; a requirement that all vessels must maintain a 
minimum separation distance of 100 m from sperm whales and all other 
baleen whales; and a requirement that 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). We have determined that the ship strike avoidance measures are 
sufficient to ensure the least practicable adverse impact on species or 
stocks and their habitat. Furthermore, no documented vessel strikes 
have occurred for any marine site characterization survey activities 
which were issued IHAs from NMFS.
    Comment 13: The ENGOs recommend that NMFS work with relevant 
experts and stakeholders towards developing a robust and effective near 
real-time monitoring and mitigation system for North Atlantic right 
whales and other endangered and protected species (e.g., fin, sei, 
minke, and humpback whales) during offshore wind energy development.
    Response: NMFS is generally supportive of this concept. A network 
of near real-time baleen whale monitoring devices are active or have 
been tested in portions of New England and Canadian waters. These 
systems employ various digital acoustic monitoring instruments which 
have been placed on autonomous platforms including slocum gliders, wave 
gliders, profiling floats and moored buoys. Systems that have proven to 
be successful will likely see increased use as operational tools for 
many whale monitoring and mitigation applications. The ENGOs cited the 
NMFS publication ``Technical Memorandum NMFS[hyphen]OPR[hyphen]64: 
North Atlantic Right Whale Monitoring and Surveillance: Report and 
Recommendations of the National Marine Fisheries Service's Expert 
Working Group'' which is available at: https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations. This report summarizes a 
workshop NMFS convened to address objectives related to monitoring 
North Atlantic right whales and presents the Expert Working Group's 
recommendations for a comprehensive monitoring strategy to guide future 
analyses and data collection. Among the numerous recommendations found 
in the report, the Expert Working Group encouraged the widespread 
deployment of auto-buoys to provide near real-time detections of North 
Atlantic right whale calls that visual survey teams can then respond to 
for collection of identification photographs or biological samples.
    Comment 14: The ENGOs state that NMFS must not issue renewal IHAs, 
and assert that the process is contrary to statutory requirements.
    Response: NMFS' IHA renewal process meets all statutory 
requirements. All IHAs issued, whether an initial IHA or a renewal IHA, 
are valid for a period of not more than one year. And the public has at 
least 30 days to comment on all proposed IHAs, with a cumulative total 
of 45 days for IHA renewals. The notice of the proposed IHA published 
in the Federal Register on April 27, 2021 (86 FR 22160) made clear that 
the agency was seeking comment on both the initial proposed IHA and the 
potential issuance of a renewal for this project. Because any renewal 
(as explained in the Comments and Responses section) is limited to 
another year of identical or nearly identical activities in the same 
location (as described in the Description of Specified Activity 
section) or the same activities that were not completed within the 1-
year period of the initial IHA, reviewers have the information needed 
to effectively comment on both the immediate proposed IHA and a 
possible 1-year renewal, should the IHA holder choose to request one in 
the coming months.
    While there will be additional documents submitted with a renewal 
request, for a qualifying renewal these will be limited to 
documentation that NMFS will make available and use to verify that the 
activities are identical to those in the initial IHA, are nearly 
identical such that the changes would have either no effect on impacts 
to marine mammals or decrease those impacts, or are a subset of 
activities already analyzed and authorized but not completed under the 
initial IHA. NMFS will also confirm, among other things, that the 
activities will occur in the same location; involve the same species 
and stocks; provide for continuation of the same mitigation, 
monitoring, and reporting requirements; and that no new information has 
been received that would alter the prior analysis. The renewal request 
will also contain a preliminary monitoring report, in order to verify 
that effects from the activities do not indicate impacts of a scale or 
nature not previously analyzed. The additional 15-day public comment 
period provides the public an opportunity to review these few 
documents, provide any additional pertinent information and comment on 
whether they think the criteria for a renewal have been met. Between 
the initial 30-day comment period on these same activities and the 
additional 15 days, the total comment period for a renewal is 45 days.
    Comment 15: The ENGOs expressed concern about past instances where 
NMFS has modified issued IHAs in response to preliminary monitoring 
data indicating that certain species of marine mammal were being 
encountered more frequently than anticipated.
    Response: No modifications are included as part of this action and, 
therefore, this comment is not relevant to this IHA.
    Comment 16: DNREC recommended that NMFS require the implementation 
of seasonal restrictions on site characterization activities that have 
the potential to injure or harass the North Atlantic right whale from 
November 1 through April 30.
    Response: NMFS is concerned about the status of the North Atlantic 
right whale, given that a UME has been in effect for this species since 
June of 2017 and that there have been a number of recent mortalities. 
NMFS appreciates the value of seasonal restrictions under some 
circumstances. However, in this case, we have determined seasonal 
restrictions are not warranted. NMFS is requiring Garden State to 
comply with restrictions associated with identified SMAs and they must 
comply with DMAs, if any DMAs are established near the project area. 
Furthermore, we have established a 500-m shutdown zone for North 
Atlantic right whales, which is more than three times as large as the 
greatest Level B harassment isopleth calculated for the specified 
activities for this IHA. The largest behavioral isopleth is 141 m 
associated with the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-
Source sparkers. Take estimation conservatively assumes that these 
acoustic sources will operate on all survey days although it is 
probable that Garden State will only use sparkers on a subset of survey 
days, and on the remaining days utilize HRG equipment with considerably 
smaller Level B harassment isopleths. Therefore, the

[[Page 33672]]

number of Level B harassment takes is likely an overestimate. Finally, 
significantly shortening Garden State's work season is impracticable 
given the number of survey days planned for the specified activity for 
this IHA.
    Comment 17: DNREC noted that NMFS published an extension of 
emergency measures to address fishery observer coverage during the 
COVID-19 coronavirus pandemic, providing NMFS with continued authority 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(MSA) to waiver observer coverage requirements when such action is 
necessary due to the COVID-19 public health emergency (85 FR 17285; 
March 27, 2020). DNREC's understanding is that this emergency action is 
not related to the PSO requirement under the MMPA, and that NMFS does 
not have any intention of waiving the PSO requirement for Garden 
State's marine site characterization surveys.
    Response: DNREC is correct in its understanding that the extension 
of emergency measures providing NMFS with the authority to waive 
fishery observer coverage under the MSA does not apply to required PSO 
coverage under an issued MMPA IHA.

Changes From the Proposed IHA to Final IHA

    NMFS has clarified that night vision equipment PSOs will be 
required to use during nighttime survey operations will include night 
vision goggles with thermal clip-ons and infrared/thermal imagery.

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; https://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 (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is 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 authorized here, PBR and annual serious injury and 
mortality from anthropogenic sources are included here as gross 
indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' 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 (except as otherwise noted) at: https://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 Garden State's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale \4\..  Eubalaena glacialis....  Western North Atlantic.  E/D; Y              368 (0; 356; 2020)....        0.8       18.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-; Y              1,393 (0; 1,375; 2016)         22         58
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E/D; Y              6,802 (0.24; 5,573;            11       2.35
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D; Y              6,292 (1.015; 3,098)..        6.2        1.2
    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.  NA.....................  E; Y                4,349 (0.28;3,451)....        3.9          0
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -/-; N              39,215 (0.30; 30,627).        306         21
    Short finned pilot whale........  Globicephala             Western North Atlantic.  -/-;Y               28,924 (0.24; 23,637).        236        160
                                       macrorhynchus.
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -/-; N              62,851 (0.23; 51,914).        519         28
                                                                Offshore.
                                                               W.N.A. Northern          -/-;Y               6,639 (0.41,4 ,759,            48  12.2-21.5
                                                                Migratory Coastal.                           2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -/-; N              172,947 (0.21;              1,452        399
                                                                                                             145,216; 2016).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -/-; N              93,233 (0.71; 54,443).        544         26
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -/-; N              39,921 (0.27; 32,032;         320          0
                                                                                                             2012).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -/-; N              35,493 (0.19; 30,289).        303       54.3
Family Phocoenidae (porpoises):

[[Page 33673]]

 
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-; N              95,543 (0.31; 74,034).        851        217
                                                                Fundy.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \5\...................  Halichoerus grypus.....  Western North Atlantic.  -/-; N              27,131 (0.19; 23,158,       1,389      4,729
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -/-; N              75,834 (0.15; 66,884,       2,006        350
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. 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's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Abundance source is Pace (2021). PBR and Annual M/SI source is draft 2020 SAR (Hayes et al. 2020). Because PBR is based on the minimum population
  estimate, we anticipate it will be slightly lower than what is presented here given the Pace (2021) abundance; however, the 2020 SARs are not yet
  finalized. Regardless of final numbers, NMFS recognizes the NARW stock is critically endangered with a low PRB and high annual M/SI rate due primarily
  to ship strikes and entanglement.
\5\ The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 451,431.

    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 and has been authorized 
by NMFS. 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) was 
provided in the notice of the proposed IHA (86 FR 22160; April 27, 
2021) and is not repeated here. Except for the updated North Atlantic 
right whale abundance (Pace 2021), no additional new relevant 
information is available since publication of that notice.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 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           150 Hz to 160 kHz.
 (dolphins, 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)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea 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,

[[Page 33674]]

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 planned 
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

    The notice of proposed IHA included a summary of the ways that 
Garden State's specified activity may impact marine mammals and their 
habitat (86 FR 22160; April 27, 2021). Detailed descriptions of the 
potential effects of similar specified activities have been provided in 
other recent Federal Register notices, including for survey activities 
using the same methodology, over a similar amount of time, and 
occurring within the same specified geographical region (e.g., 82 FR 
20563, May 3, 2017; 85 FR 36537, June 17, 2020; 85 FR 37848, June 24, 
2020; 85 FR 48179, August 10, 2020; 86 FR 26465; May 14, 2021). No 
significant new information is available, and NMFS refers the reader to 
the notice of proposed IHA and to these documents rather than repeating 
the details here. The Estimated Take section includes a quantitative 
analysis of the number of individuals that are expected to be taken by 
Garden State's activity. The Negligible Impact Analysis and 
Determination section considers the potential effects of the specified 
activity, the Estimated Take section, and the Mitigation section, to 
draw conclusions regarding the likely impacts of these activities on 
the reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks. The notice of proposed IHA also provided background information 
regarding active acoustic sound sources and acoustic terminology, which 
is not repeated here.
    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 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Level B behavioral 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 behavioral harassment).
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based on the characteristics of the signals produced by the acoustic 
sources planned for use, Level A harassment is neither anticipated, 
even absent mitigation, nor authorized. Consideration of the 
anticipated effectiveness of the mitigation measures (i.e., exclusion 
zones and shutdown measures), discussed in detail below in the 
Mitigation section, further strengthens the conclusion that Level A 
harassment is not a reasonably anticipated outcome of the survey 
activity. As described previously, no serious injury or mortality is 
anticipated, even absent mitigation, or authorized for this activity.
    Generally speaking, NMFS estimates 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. NMFS notes 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, NMFS 
describes the factors considered here in more detail and present the 
take estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment).
    Level B Harassment--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 are 
likely to 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 Garden State's survey activities.
    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.
    Garden State's 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 Garden State plans to use, and the potential 
for Level A harassment is not evaluated further in this document. 
Please see Garden State'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

[[Page 33675]]

A harassment isopleths were less than 3 m for all sources and hearing 
groups with the exception of an estimated 37 m zone and 17 m zone 
calculated for high-frequency cetaceans during use of the GeoPulse 5430 
CHIRP SBP and the TB CHIRP III, respectively (see Table 1 for source 
characteristics). Garden State did not request authorization of take by 
Level A harassment, and no take by Level A harassment is authorized by 
NMFS.

Ensonified Area

    NMFS has developed a user-friendly methodology for estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS, 2020). This methodology incorporates frequency 
and directionality to refine estimated ensonified zones. For acoustic 
sources that operate with different beamwidths, the maximum beamwidth 
was used, and the lowest frequency of the source was used when 
calculating the 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 planned surveys and the sound 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 Garden State 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 Garden State's application). Estimated Level B 
harassment isopleths associated with the boomer and CHIRP SBP systems 
planned for use are estimated as 25 and 36 m, respectively. Although 
Garden State does not expect to use sparker sources on all planned 
survey days, it assumed 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 will inform the take 
calculations.
    Habitat-based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) 
represent the best available information regarding marine mammal 
densities in the planned survey area. The density data presented by 
Roberts et al. (2016, 2017, 2018, 2020) incorporates aerial and 
shipboard line-transect survey data from NMFS and other organizations 
and incorporates data from 8 physiographic and 16 dynamic oceanographic 
and biological covariates, and controls for the influence of sea state, 
group size, availability bias, and perception bias on the probability 
of making a sighting. These density models were originally developed 
for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at 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 the NOAA 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 planned 
survey area were selected for all survey months (see Figure 3 in Garden 
State'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 Garden State'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. (2016, 2017, 2018, 2020) 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 Garden State's 
application. The largest daily ZOI (19.8 km\2\), associated with the 
various sparkers planned 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.

[[Page 33676]]



                                   Table 4--Summary of Authorized Take Numbers
----------------------------------------------------------------------------------------------------------------
                                                                                   Level B takes    Max percent
                             Species                                 Abundance          \1\         population
----------------------------------------------------------------------------------------------------------------
                                             Low-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Fin whale.......................................................           6,802               9            0.13
Sei whale.......................................................           6,292           0 (1)            0.02
Minke whale.....................................................          21,968               3            0.01
Humpback whale..................................................           1,393               4            0.29
North Atlantic right whale......................................             412              14            3.40
----------------------------------------------------------------------------------------------------------------
                                             Mid-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Sperm whale \3\.................................................           4,349           0 (3)            0.07
Atlantic white-sided dolphin....................................          93,233              15            0.00
Atlantic spotted dolphin........................................          39,921               9            0.00
Common bottlenose dolphin: \2\
    Offshore Stock..............................................          62,851             437            0.21
    Migratory Stock.............................................           6,639           1,192            7.77
Pilot Whales \3\
    Short-finned pilot whale....................................          28,924          3 (10)            0.03
    Long-finned pilot whale.....................................          39,215          3 (10)            0.03
Risso's dolphin.................................................          35,493          0 (30)            0.08
Common dolphin..................................................         172,974             112            0.06
----------------------------------------------------------------------------------------------------------------
                                            High-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.................................................          95,543              98            0.03
----------------------------------------------------------------------------------------------------------------
                                                    Pinnipeds
----------------------------------------------------------------------------------------------------------------
Seals: \4\
    Gray seal...................................................         451,431               9            0.00
    Harbor seal.................................................          75,834               9            0.01
----------------------------------------------------------------------------------------------------------------
\1\ Parenthesis denote changes 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.
\3\ Roberts (2018) only provides density estimates for ``generic'' pilot whales; therefore, an equal potential
  for takes has been assumed either for each species.
\4\ Roberts (2018) only provides density estimates for ``generic'' seals; therefore, densities were split evenly
  between the two species.

    The take numbers shown in Table 4 are those requested by Garden 
State, with the exception of the two pilot whale species. Garden State 
requested 3 takes by Level B harassment for each pilot whale species 
(i.e., short-finned and long-finned pilot whales). However, the 
requested number of takes is below the mean group size for each of 
these species; therefore, NMFS increased to 10 (from 3, proposed by 
Garden State) the number of takes by Level B harassment for each of 
these species, based on published mean group sizes (Kenney and Vigness-
Raposa, 2010). For all other species, NMFS concurs with the take 
numbers requested by Garden State and has authorized them.

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, NMFS 
carefully considers 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, impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    NMFS has prescribed the following mitigation measures to be 
implemented during Garden State's marine site characterization surveys.

Marine Mammal Exclusion Zones

    Marine mammal EZs must be established around the HRG survey 
equipment and monitored by PSOs:
     500 m EZ for North Atlantic right whales during use of all 
acoustic sources; and

[[Page 33677]]

     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 must 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-Start Clearance of the Exclusion Zones

    Garden State must implement a 30-minute pre-start clearance period 
of the EZs prior to the initiation of ramp-up of HRG equipment. During 
this period, the EZ 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 EZ. If a marine mammal is 
observed within an EZ during the pre-start clearance period, ramp-up 
may not begin until the animal(s) has been observed exiting its 
respective EZ or until an additional time period has elapsed with no 
further sighting (i.e., 15 minutes for small odontocetes and seals, and 
30 minutes for all other species).

Ramp-Up of Survey Equipment

    When technically feasible, a ramp-up procedure must be used for HRG 
survey equipment capable of adjusting energy levels at the start or 
restart of survey activities. The ramp-up procedure must 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 must begin with the powering up of the smallest acoustic 
HRG equipment at its lowest practical power output appropriate for the 
survey. When technically feasible, the power will then be gradually 
turned up and other acoustic sources 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-start 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 will 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 (36 m, non-impulsive; 141 m impulsive), 
shutdown must 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 EZs. If the acoustic source is shut down for a period 
longer than 30 minutes and PSOs have maintained constant observation, 
then pre-start clearance and ramp-up procedures will be initiated as 
described in the previous section.
    The shutdown requirement will be waived for small delphinids of the 
following genera: Delphinus, Lagenorhynchus, 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 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

    Garden State 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 must 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 vessels, regardless of size, must observe a 10-knot 
speed restriction in specific areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes including 
SMAs and 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);

[[Page 33678]]

     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 
Project 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 determined that the 
required mitigation measures provide the means of effecting the least 
practicable impact on marine mammal species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

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

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Garden State 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 
and/or have demonstrated experience in the role of an independent PSO 
during an HRG survey. At least one PSO aboard each acoustic source 
vessel must have a minimum of 90 days at-sea experience working as a 
PSO during a geophysical survey, with no more than 18 months elapsed 
since the conclusion of the at-sea experience. 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 EZs, during all HRG survey operations. PSOs will 
visually monitor and identify marine mammals, including those 
approaching or entering the established EZs 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 two hours between 
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying 
concurrently, any observations of marine mammals would be communicated 
to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in

[[Page 33679]]

proximity to EZs. 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/
thermal imaging technology would be used to facilitate detection of 
marine mammals approaching and within the EZs during pre-start 
clearance and active survey operations. 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).

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-start 
clearance survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
     Estimated number of animals (high/low/best);
     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
     Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
     Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
     Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration, 
etc.) and time and location of the action.
    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, Garden State 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 Garden State personnel discover an injured or 
dead marine mammal, Garden State 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, Garden State 
must 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;

[[Page 33680]]

     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' 
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 
planned survey to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the North 
Atlantic right whale--they are included as separate subsections below. 
NMFS does not anticipate that serious injury or mortality would occur 
as a result from HRG surveys, even in the absence of mitigation, and no 
serious injury or mortality is anticipated or authorized. As discussed 
in the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat section of the notice of the proposed IHA (86 FR 22160; 
April 27, 2021), 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 
and the estimated small size of the Level A harassment zones.
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141 m. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the survey 
area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or 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 survey area and 
there are no feeding areas known to be biologically important to marine 
mammals within the survey area. There is no designated critical habitat 
for any ESA-listed marine mammals in the 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 
discussed in the notice of the proposed IHA (86 FR 22160; April 27, 
2021), 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 survey area overlaps a migratory corridor Biologically 
Important Area (BIA) for North Atlantic right whales. Due to the fact 
that that the 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 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 Garden State's planned activities. Additionally, only very 
limited take by Level B harassment of North Atlantic right whales has 
been requested and is being authorized 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., GeoMarine Geo-
Source 400 tip 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 Level A 
harassment zones associated with HRG equipment types planned for use. 
NMFS does not anticipate that North Atlantic right whales takes 
resulting from Garden State's activities would impact annual rates of 
recruitment or survival. Thus, any takes that occur would not result in 
population level impacts.

[[Page 33681]]

Other Marine Mammal Species With Active UMEs

    As discussed in the notice of the proposed IHA (86 FR 22160; April 
27, 2021), there are several active UMEs occurring in the vicinity of 
Garden State's 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 mortality/
serious injury (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 exclusive economic zone as well 
as in Canada (Hayes et al., 2020).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in Table 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 
authorized.
    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 determination that the impacts resulting from this activity 
are not expected to adversely affect the species or stock through 
effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be primarily Level B behavioral 
harassment consisting of brief startling reactions and/or temporary 
avoidance of the survey area;
     While the survey area is within areas noted as a migratory 
BIA for North Atlantic right whales, the activities will occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities would 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 required mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
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 less 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 has authorized incidental take of 16 marine mammal species 
(with 17 managed stocks.) The total amount of takes authorized relative 
to the best available population abundance is less than 8 percent for 
one stock (bottlenose dolphin northern coastal migratory stock) and 
less than 4 percent of all other species and stocks, which NMFS 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 planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
will be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
determined that the total taking of affected species or stocks 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 (16 U.S.C. 
1531 et seq.) requires that each Federal agency insure that any action 
it authorizes,

[[Page 33682]]

funds, or carries out is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of designated critical habitat. To 
ensure ESA compliance for the issuance of IHAs, NMFS consults 
internally whenever NMFS proposes to authorize take for endangered or 
threatened species, in this case with NMFS Greater Atlantic Regional 
Fisheries Office (GARFO).
    The NMFS OPR is authorizing the incidental take of four species of 
marine mammals which are listed under the ESA: North Atlantic right, 
fin, sei, and sperm whales. The OPR requested initiation of Section 7 
consultation with NMFS GARFO on April 19, 2021, for the issuance of the 
IHA. On June 1, 2021, NMFS GARFO determined that issuance of the IHA to 
Garden State is not likely to adversely affect the North Atlantic, fin, 
sei, or sperm whale or result in take of any marine mammals that would 
violate the ESA.

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 
determined that the issuance of the IHA qualifies to be categorically 
excluded from further NEPA review.

Authorization

    NMFS has issued an IHA to Garden State for the potential harassment 
of small numbers of 16 marine mammal species (with 17 managed stocks) 
incidental to conducting marine site characterization surveys offshore 
of Delaware and New Jersey in the area of the Commercial Lease of 
Submerged Lands for Renewable Energy Development on the Outer 
Continental Shelf (OCS-A 0482) and along potential export cable routes 
to landfall locations in Delaware and New Jersey, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are followed.

    Dated: June 14, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2021-13530 Filed 6-24-21; 8:45 am]
BILLING CODE 3510-22-P