Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Delaware, 15922-15942 [2022-05935]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 54 (Monday, March 21, 2022)]
[Notices]
[Pages 15922-15942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05935]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB845]


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

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

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

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SUMMARY: NMFS has received a request from Orsted Wind Power North 
America, LLC, (Orsted) on behalf of Garden State Offshore Energy, LLC 
(Garden State) and Skipjack Offshore Energy, LLC (Skipjack) for 
authorization to take marine mammals incidental to site 
characterization surveys off the coast of Delaware. Pursuant to the 
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an incidental harassment authorization (IHA) to 
incidentally take marine mammals during the specified activities. NMFS 
is also requesting comments on a possible one-time, one-year renewal 
that could be issued under certain circumstances and if all 
requirements are met, as described in Request for Public Comments at 
the end of this notice. NMFS will consider public comments prior to 
making any final decision on the issuance of the requested MMPA 
authorization and agency responses will be summarized in the final 
notice of our decision.

DATES: Comments and information must be received no later than April 
20, 2022.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division,

[[Page 15923]]

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

FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are proposed or, if the taking is limited to harassment, a notice of a 
proposed incidental harassment authorization is provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

National Environmental Policy Act

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

Summary of Request

    On October 1, 2021, NMFS received a request from Orsted on behalf 
of Garden State Offshore Energy, LLC and Skipjack Offshore Energy, LLC, 
both subsidiaries of Orsted, for an IHA to take marine mammals 
incidental to marine site characterization surveys off the coast of 
Delaware. Hereafter, we refer to the applicant as Orsted. Following 
NMFS' review of the draft application, a revised version was submitted 
on November 24, 2021. The application was deemed adequate and complete 
on February 11, 2022. Orsted's request is for take of a small number of 
16 species of marine mammals by Level B harassment only. Neither Orsted 
nor NMFS expects serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.
    NMFS previously issued IHAs to Garden State (86 FR 33664; June 25, 
2021)) and Skipjack (86 FR 18943; April 12, 2021)) for related work. 
However, work has not been completed under these IHAs at this time, 
which are effective until April 4, 2022 and June 10, 2022, 
respectively. Orsted plans to survey the combined survey area of the 
aforementioned projects, and the same two Lease Area currently being 
surveyed under those IHAs (see Figure 1).

Description of Proposed Activity

Overview

    As part of their overall marine site characterization survey 
operations, Orsted plans to conduct high-resolution geophysical (HRG) 
and geotechnical surveys in Lease Areas OCS-A 0482 and 0519 (Lease 
Areas), and the associated export cable route (ECR) area off the coast 
of Delaware (Figure 1).
    The purpose of the marine site characterization surveys is to 
collect data concerning 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 
(UXO). Underwater sounds resulting from the 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 take of marine mammals.

Dates and Duration

    The proposed site characterization surveys are anticipated to occur 
between May 10, 2022 and May 9, 2023. The exact dates have not yet been 
established. The activity is expected to include up to 350 survey days 
over the course of a single year (``survey day'' defined as a 24-hour 
(hr) activity period in which the assumed number of line kilometers 
(km) are surveyed). The number of anticipated survey days was 
calculated as the number of days needed to reach the overall level of 
effort required to meet survey objectives assuming any single vessel 
travels 4 knots (kn) and surveys cover, on average, 70 line km per 24-
hr period. The applicant assumes the use of sparker systems, which 
produce the largest estimated harassment isopleths, on all survey days 
(see Table 1).

Specific Geographic Region

    The proposed activities will occur within the survey area which 
includes the Lease Area and potential ECRs to landfall locations in 
Delaware, as shown in Figure 1. This survey area combines

[[Page 15924]]

the survey areas in the previously issued Garden State (86 FR 33664; 
June 25, 2021) and Skipjack (86 FR 18943; April 12, 2021) IHAs. The 
combined Lease Areas (Garden State Lease Area OCS-A-0482 and Skipjack 
Lease Area OCS-A-0519) are comprised of approximately 568 square 
kilometers (km\2\) within the WEA of BOEM's Mid-Atlantic planning area 
(see Figure 1). Water depths in the Lease Area range from approximately 
15 to 40 meters (m).
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN21MR22.037

BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    Orsted proposes to conduct HRG survey operations, including 
multibeam depth sounding, seafloor imaging, and shallow and medium 
penetration sub-bottom profiling. The HRG surveys will include the use 
of seafloor mapping

[[Page 15925]]

equipment with operating frequencies above 180 kilohertz (kHz) (e.g., 
side-scan sonar (SSS), multibeam echosounders (MBES)); magnetometers 
and gradiometers that have no acoustic output; and shallow- to medium-
penetration sub-bottom profiling (SBP) equipment (e.g., parametric 
sonars, compressed high-intensity radiated pulses (CHIRPs), boomers, 
sparkers) with operating frequencies below 180 kilohertz (kHz). No 
deep-penetration SBP surveys (e.g., airgun or bubble gun surveys) will 
be conducted. Survey equipment will be deployed from as many as three 
vessels or remotely operated vehicles (ROVs) during the site 
characterization activities within the Lease area and ECR area. 
Equipment deployed on the ROVs would be identical to that deployed on 
the vessel; however, the sparker systems are not normally deployed from 
an ROV due to the power supply required. For Orsted's proposed survey 
activity, ROVs would be used for smaller impact sources (i.e., CHIRPs) 
or de minimus sources. The extent of ROV usage in this project is 
unknown at this time, however NMFS expects the use of ROVs to have de 
minimus impacts relative to the use of vessels given the smaller 
sources and inherent nature of utilizing an ROV (e.g., much smaller 
size of an ROV relative to a vessel and less acoustic exposure given 
location of their use in the water column). For these reasons, our 
analysis focuses on the acoustic sources themselves and the use of 
vessels to deploy such sources, rather than the specific use of ROVs to 
deploy the survey equipment. Therefore, ROVs are not further analyzed 
in this notice.
    Orsted assumes that vessels would generally conduct survey effort 
at a transit speed of approximately 4 kn, which equates to 70 line km 
per 24-hour operation period. On this basis a total of 350 vessel 
survey days are expected within Lease Areas OCS-A 0482, OCS-A 0519, and 
the associated ECR area. Water depths in the Lease Areas range from 
approximately 15 to 40 meters (m). Water depths within the ECR area 
extend from the shoreline to approximately 40 m deep.
    Acoustic sources planned for use during HRG survey activities 
proposed by Orsted include the following. Survey equipment can either 
be towed, pole mounted, hull-mounted on the vessel (or on an ROV as 
noted above), or mounted on other survey equipment (e.g., transponders) 
(Table 1):
     Shallow penetration, non-impulsive, intermittent, mobile, 
non-parametric SBPs (i.e., CHIRP SBPs) are used to map the near-surface 
stratigraphy (top 0 to 10 m) of sediment below seabed. A CHIRP system 
emits sonar pulses that increase in frequency from approximately 2 to 
20 kHz over time. The frequency range can be adjusted to meet project 
variables. These sources are typically mounted on a pole, either over 
the side of the vessel or through a moon pool in the bottom of the 
hull. The operational configuration and relatively narrow beamwidth of 
these sources reduce the likelihood that an animal would be exposed to 
the signal.
     Medium penetration SBPs (boomers) are used to map deeper 
subsurface stratigraphy as needed. A boomer is a broad-band sound 
source operating in the 3.5 Hz to 10 kHz frequency range. This system 
is commonly mounted on a sled and towed behind the vessel. Boomers are 
impulsive and mobile sources. The sound levels produced by this 
equipment type have the potential to result in Level B harassment of 
marine mammals; and
     Medium penetration SBPs (sparkers) are used to map deeper 
subsurface stratigraphy as need. Sparkers create acoustic pulses from 
50 Hz to 4 kHz omnidirectionally from the source, and are considered to 
be impulsive and mobile sources. Sparkers are typically towed behind 
the vessel with adjacent hydrophone arrays to receive the return 
signals. The sound levels produced by this equipment type have the 
potential to result in Level B harassment of marine mammals.
    Operation of the following survey equipment types is not reasonably 
expected to result in take of marine mammals and will not be discussed 
further beyond the brief summaries provided below:
     Parametric SBPs, also commonly referred to as sediment 
echosounders, are used to provide high data density in sub-bottom 
profiles that are typically required for cable routes, very shallow 
water, and archaeological surveys. Parametric SPBs are typically 
mounted on a pole, either over the side of the vessel or through a moon 
pool in the bottom of the hull. Crocker and Fratantonio (2016) does not 
provide relevant measurements or source data for parametric SBPs, 
however, some source information is provided by the manufacturer. For 
the proposed project, the SBP used would generate short, very narrow-
beam (1[deg] to 3.5[deg]) sound pulses at relatively high frequencies 
(generally around 85 to 100 kHz). The narrow beamwidth significantly 
reduces the potential for exposure while the high frequencies of the 
source are rapidly attenuated in sea water. Given the narrow beamwidth 
and relatively high frequency. NMFS does not reasonably expect there to 
be potential for marine mammals to be exposed to the signal;
     Acoustic Cores are seabed-mounted sources with three 
distinct sound sources: A high-frequency parametric source, a high-
frequency CHIRP sonar, and a low-frequency CHIRP sonar. The beamwidth 
is narrow (3.5[deg] to 8[deg]) and the source is operated roughly 3.5 m 
above the seabed from a seabed mount, with the transducer pointed 
directly downward;
     Ultra-short baseline (USBL) positioning systems are used 
to provide high accuracy ranges by measuring the time between the 
acoustic pulses transmitted by vessel transceiver and a transponder (or 
beacon) necessary to produce the acoustic profile. It is a two-
component system with a moon pool- or side pole mounted transceiver and 
one or several transponders mounted on other survey equipment. USBLs 
are expected to produce extremely small acoustic propagation distances 
in their typical operating configuration;
     Multibeam echosounders (MBES) are used to determine water 
depths and general bottom topography. MBES sonar systems project sonar 
pulses in several angled beams from a transducer mounted to a ship's 
hull. The beams radiate out form the transducer in a fan-shaped pattern 
orthogonally to the ship's direction. The proposed MBESs all have 
operating frequencies >180 kHz and are therefore outside the general 
hearing range of marine mammals; and
     Side scan sonars (SSS) are used for seabed sediment 
classification purposes and to identify natural and man-made acoustic 
targets on the seafloor. The sonar device emits conical or fan-shaped 
pulses down toward the seafloor in multiple beams at a wide angle, 
perpendicular to the path of the sensor through the water column. The 
proposed SSSs all have operating frequencies >180 kHZ and are therefore 
outside the general hearing range of marine mammals.
    Table 1 identifies representative survey equipment with the 
expected potential to result in exposure of marine mammals and thus 
potentially result in take. The make and model of the listed 
geophysical equipment may vary depending on availability and the final 
equipment choices will vary depending upon the final survey design, 
vessel availability, and survey contractor selection.

[[Page 15926]]



                                                 Table 1--Summary of Representative HRG Survey Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               SL (SPL dB   SL (SEL dB   SL  (PK dB     Pulse
                                                                    Operating     re  1        re  1        re  1     duration   Repetition   Beamwidth
                Equipment                     Reference for SL      frequency   [micro]Pa  [micro]Pa\2\   [micro]Pa    (width)   rate  (Hz)   (degrees)
                                                                      (kHz)        m)         m\2\ s)        m)         (ms)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ET 216 (2000DS or 3200 top unit)........  MAN....................        2-16         195          178   ..........          20           6           24
                                                                          2-8
ET 424 3200-XS..........................  CF.....................        4-24         176          152   ..........         3.4           2           71
ET 512i.................................  CF.....................      0.7-12         179          158   ..........           9           8           80
GeoPulse 5430A..........................  MAN....................        2-17         196          183   ..........          50          10           55
Teledyne Benthos Chirp III--TTV 170.....  MAN....................         2-7         197          185   ..........          60          15          100
Pangeo SBI..............................  MAN....................    4.5-12.5       188.2          165   ..........         4.5          45          120
AA, Dura-spark UHD Sparker (400 tips,     CF.....................     0.3-1.2         203          174          211         1.1           4         Omni
 500 J) \1\.
AA, Dura-spark UHD Sparker Model 400 x    CF.....................     0.3-1.2         203          174          211         1.1           4         Omni
 400 \4\.
GeoMarine, Dual 400 Sparker, Model Geo-   CF.....................       0.4-5         203          174          211         1.1           2         Omni
 Source 800 \1\ \2\.
GeoMarine Sparker, Model Geo-Source 200-  CF.....................     0.3-1.2         203          174          211         1.1           4         Omni
 400 \1\ \2\.
GeoMarine Sparker, Model Geo-Source 200   CF.....................     0.3-1.2         203          174          211         1.1           4         Omni
 Lightweight \1\ \2\.
AA, triple plate S[dash]Boom (700-1,000   CF.....................       0.1-5         205          172          211         0.6           4           80
 J) \3\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[micro]Pa = micropascal; AA = Applied Acoustics; CF = Crocker and Fratantonio (2016); CHIRP = compressed high-intensity radiated pulses; dB = decibel;
  EM = equipment mounted; ET = edgetech; J = joule; Omni = omnidirectional source; re = referenced to; PK = zero-to-peak sound pressure level; PM = pole
  mounted; SBI = sub-bottom imager; SEL = sound exposure level; SL = source level; SPL = root-mean-square sound pressure level; T = towed; TB = Teledyne
  benthos; UHD = ultra-high definition; WFA = weighting factor adjustment.
\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\ The AA Dura-spark (500 J, 400tips) was used as a proxy source.
\3\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
  used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
  in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.

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

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's 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's website 
(https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
proposed to be authorized for this action, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. For taxonomy, we follow Committee on 
Taxonomy (2021). PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS's SARs). While no 
mortality is anticipated or authorized here, PBR and annual serious 
injury and mortality from anthropogenic sources are included here as 
gross indicators of the status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al., 
2021). All values presented in Table 2 are the most recent available at 
the time of publication and are available in the 2020 SARs (Hayes et 
al., 2021) and the draft 2021 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                      Table 2--Marine Mammal Species Likely To Occur Near the Survey Area That May Be Affected by Orsted'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......  Eubalaena glacialis....  Western Atlantic.......  E, D, Y             368 (0, 364, 2019)....        0.7        7.7
Family Balaenopteridae (rorquals):
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E, D, Y             6802 (0.24, 5573,              11        1.8
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E, D, Y             6292 (1.02, 3098,             6.2        0.8
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian Eastern         -,-, N              21,968 (0.31, 17002,          170       10.6
                                       acutorostrata.           Coastal.                                     2016).

[[Page 15927]]

 
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -,-, Y              1396 (0, 1380, 2016)..         22      12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E, D, Y             4349 (0.28, 3451, See         3.9          0
                                                                                                             SAR).
Family Delphinidae:
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -, -, N             93,233 (0.71, 54443,          544         27
                                                                                                             See SAR).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -, -, N             39,921 (0.27, 32032,          320          0
                                                                                                             See SAR).
    Common bottlenose dolphin.......  Tursiops truncatus.....  Western North Atlantic   -, -, N             62,851 (0.23, 51914,          519         28
                                                                Offshore.                                    See SAR).
                                                               Western North Atlantic   -, -, Y             6,639 (0.41, 4759,             48  12.2-21.5
                                                                Northern Migratory                           2016).
                                                                Coastal.
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -, -, N             39,215 (0.3, 30627,           306         29
                                                                                                             See SAR).
    Short-finned pilot whale........  Globicephala             Western North Atlantic.  -, -, Y             28,924 (0.24, 23637,          236        136
                                       macrorhynchus.                                                        See SAR).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic.  -, -, N             35,215 (0.19, 30051,          301         34
                                                                                                             2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic.  -, -, N             172,974 (0.21, 145216,      1,452        390
                                                                                                             2016).
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -, -, N             95,543 (0.31, 74034,          851        164
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Gray seal \4\...................  Halichoerus grypus.....  Western North Atlantic.  -, -, N             27300 (0.22, 22785,         1,389       4453
                                                                                                             2016).
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic.  -, -, N             61,336 (0.08, 57637,        1,729        339
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\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\ The NMFS stock abundance estimate (and associated PBR value) applies to the U.S. population only, however the actual stock abundance is
  approximately 451,431 (including animals in Canada). The annual mortality and serious injury (M/SI) value given is for the total stock.

    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 we have proposed 
authorizing it. In addition to what is included in Sections 3 and 4 of 
Orsted's application, the SARs, and NMFS' website, further detail 
informing the baseline for select species (e.g., information regarding 
current Unusual Mortality Events (UMEs) and important habitat areas) is 
provided below.

North Atlantic Right Whales

    The western North Atlantic right whale population ranges from 
calving grounds in coastal waters of the southeastern United States to 
feeding grounds in New England waters and the Canadian Bay of Fundy, 
Scotian Shelf, and Gulf of St. Lawrence (Hayes et al., 2021). In the 
late fall months (e.g., November), right whales are generally thought 
to depart from the feeding grounds in the northeast Atlantic and 
migrate south to their calving grounds off the coast of Georgia and 
Florida. However, passive acoustic studies of right whales have 
demonstrated their year-round presence in the Gulf of Maine (Morano et 
al., 2012; Bort et al., 2015), New Jersey (Whitt et al., 2013), and 
Virginia (Salisbury et al., 2016). Off the coast of New Jersey, right 
whales were acoustically detected in all seasons, with peak detections 
occurring in April and May (Whitt et al., 2013), and visually observed 
in winter, spring, and summer during an environmental baseline study 
(EBS) conducted by the New Jersey Department of Environment Protection 
(NJDEP, 2010). A comprehensive study of passive acoustic monitoring 
data from 2004 through 2014 by Davis et al. (2017) demonstrated year-
round presence of certain individual right whales across their entire 
habitat range (southeastern Atlantic to northern Atlantic), suggesting 
that not all individuals undergo consistent annual migration.
    The proposed survey area is located within the migratory corridor 
Biologically Important Area (BIA) for North Atlantic right whales 
(March-April and November-December) that extends from Massachusetts to 
Florida (LaBrecque et al., 2015). Off the coast of New Jersey and 
Delaware, the migratory BIA extends from the coast to beyond the shelf 
break. This important migratory area is approximately 269,488 km\2\ in 
size and is comprised of the waters of the continental shelf offshore 
the East Coast of the United States, extending from Florida through 
Massachusetts.
    NMFS' regulations at 50 CFR part 224.105 designated nearshore 
waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal 
Management Areas (SMA) for right whales in 2008. SMAs were developed to 
reduce the threat of collisions between ships and right whales around 
their migratory route and calving grounds. A portion of one SMA, which 
occurs off the mouth of the Delaware Bay, overlaps spatially for the 
proposed survey area (https://apps-nefsc.fisheries.noaa.gov/psb/surveys/MapperiframeWithText.html). This SMA is active from November 1 
through April 30 of each year.

[[Page 15928]]

    In addition to active SMAs, Dynamic Management areas (DMAs) may be 
established by NOAA Fisheries based on visual sightings documenting the 
presence of three or more right whales within a discrete area. DMAs are 
voluntary slow-speed zones and mariners are encouraged to avoid these 
areas or reduce speeds to 10 kn or less while transiting through these 
areas. More information, as well as the most up-to-date DMA 
establishments can be found on NMFS' website (https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales).
    Elevated right whale mortalities have been documented since June 7, 
2017 along the U.S. and Canadian coast and have collectively been 
declared an UME. As of January 7, 2022, there have been a total of 34 
dead stranded whales (21 in Canada; 13 in the United States), and the 
leading category for cause of death for this UME is ``human 
interaction'', specifically from entanglements or vessel strikes. The 
cumulative total number of animals in the North Atlantic right whale 
UME has been updated to 50 individuals to include both the confirmed 
mortalities (dead, stranded or floating) (n=34) and seriously injured 
free-swimming whales (n=16). This number better reflects the number of 
whale likely removed from the population during the UME and more 
accurately reflects the population impacts. More information is 
available online at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-north-atlantic-right-whale-unusual-mortality-event.

Humpback Whales

    Humpback whales are found worldwide in all oceans. In winter, 
humpback whales from waters off New England, Canada, Greenland, 
Iceland, and Norway, migrate to mate and calve primarily in the West 
Indies, where spatial and genetic mixing among these groups occurs. 
NMFS currently defines humpback whale stocks on the basis of feeding 
locations, i.e., Gulf of Maine. However, our reference to humpback 
whales in this document refers to any individual of the species that 
are found in the specific geographic region. These individuals may be 
from the same breeding population (e.g., West Indies breeding 
population of humpback whales) but visit different feeding areas.
    Based on photo-identification, only 39 percent of individual 
humpback whales observed along the mid- and south Atlantic U.S. coasts 
are from the Gulf of Marine stock (Barco et al., 2002). Therefore, the 
SAR abundance estimate is an underrepresentation of the relevant 
population, i.e., the West Indies breeding population.
    Prior to 2016, humpback whales were listed under the ESA as an 
endangered species worldwide. Following a 2015 global status review 
(Bettridge et al., 2015), NMFS established 14 DPSs with different 
listing statuses (81 FR 62259; September 8, 2016) pursuant to the ESA. 
Humpback whales in the survey area are expected to be from the West 
Indies DPS, which consists of the whales whose breeding range includes 
the Atlantic margin of the Antilles from Cuba to northern Venezuela, 
and whose feeding range primarily includes the Gulf of Marine, eastern 
Canada, and western Greenland. This DPS is not ESA listed. Bettridge et 
al. (2003) estimated the size of the West Indies DPS at 12,312 (95% CI 
8,688-15,954) whales in 2004-2005, which is consistent with previous 
population estimates of approximately 10,000-11,000 whales (Stevick et 
al., 2003; Smith et al., 1999) and the increasing trend for the West 
Indies DPS (Bettridge et al., 2015).
    Although humpback whales are migratory between feeding areas and 
calving areas, individual variability in the timing of migrations may 
result in the presence of individuals in high-latitude areas throughout 
the year (Straley, 1990). Records of humpback whales off the U.S. mid-
Atlantic coast (New Jersey to North Carolina) from January through 
March suggest these waters may represent a supplemental winter feeding 
ground used by juvenile and mature humpback whales of the U.S. and 
Canadian North Atlantic stocks (LaBrecque et al., 2015).
    Since January 2016, elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine to Florida. Partial or 
full necropsy examinations have been conducted on approximately half of 
stranded humpback whales. Of the whales examined, about 50 percent had 
evidence of human interactions, either ship strike or entanglement. In 
total, 10 humpback whale strandings occurred in 2021. While a portion 
of the whales have shown evidence of pre-mortem vessel strike, this 
finding is not consistent across all whales examined and more research 
is needed. NOAA is consulting with researchers that are conducting 
studies on the humpback whale populations, and these efforts may 
provide information on changes in whale distribution and habitat use 
that could provide additional insight into how these vessel 
interactions occurred. More information is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2016-2022-humpback-whale-unusual-mortality-event-along-atlantic-coast.

Fin Whales

    Fin whales are common in waters off the U.S. Atlantic Exclusive 
Economic Zone (EEZ), primarily from Cape Hatteras northward (Hayes et 
al., 2021). Fin whales are present north of 35[deg] latitude in every 
season and are broadly distributed throughout the western North 
Atlantic for most of the year (Hayes et al., 2021). They are typically 
found in small groups of up to five individuals (Brueggeman et al., 
1987). The main threats to fin whales are fishery interactions and 
vessel collisions (Hayes et al., 2021).

Sei Whales

    The Nova Scotia stock of sei whales can be found in deeper waters 
of the continental shelf edge of the northeastern U.S. and 
northeastward to south of Newfoundland. The southern portion of the 
stock's range during spring and summer includes the Gulf of Maine and 
Georges Bank. Spring is the period of greatest abundance in the U.S. 
waters, with sightings concentrated along the eastern margin of Georges 
Bank and into the Northeast Channel area, and along the southwestern 
edge of Georges Bank in the area of Hydrographer Canyon (Hayes et al., 
2021). Sei whales occur in shallower waters to feed. Although sightings 
of sei whales are uncommon in the survey area, sightings have occurred 
in waters off of Maryland and Delaware during previous surveys (Garden 
State Offshore Energy 2019; Atlantic Shores 2020). The main threats to 
this stock are human interactions with fisheries and vessel collisions.

Minke Whales

    Minke whales can be found in temperate, tropical, and high-latitude 
waters. The Canadian East Coast stock can be found in the area from the 
western half of the Davis Strait (45[deg] W) to the Gulf of Mexico 
(Hayes et al., 2021). This species generally occupies waters less than 
100 m deep on the continental shelf. Strong seasonal distribution has 
been documented with minke whales in the survey areas, in which spring 
through fall are times are relatively widespread and common occurrence 
whereas during the winter whales are largely absent (Hayes et al., 
2021).
    Since January 2017, elevated minke whale mortalities have occurred 
along the Atlantic coast from Maine through South Carolina leading to a 
declared UME. As of January 7, 2022, 122 minke

[[Page 15929]]

whale strandings have occurred since the UME was declared in 2017. Full 
or partial necropsy examinations were conducted on more than 60 percent 
of the whales. Preliminary findings of the whales have shown evidence 
of human interactions or infectious disease. These findings are not 
consistent across all of the whales examined, so more research is 
needed. More information on this UME is available at: https://www.fisheries.noaa.gov/national/marine-life-distress/2017-2022-minke-whale-unusual-mortality-event-along-atlantic-coast.

Sperm Whales

    The distribution of sperm whales in the U.S. EEZ occurs on the 
continental shelf edge, over the continental slope, and into the mid-
ocean regions (Hayes et al., 2021). The basic social unit of the sperm 
whale appears to be the mixed school of adult females plus their calves 
and some juveniles of both sexes, normally numbering 20-40 animals in 
all. There is evidence that some social bonds persist for many years 
(Christal et al., 1998). This species forms stable social groups, site 
fidelity, and latitudinal range limitations in groups of females and 
juveniles (Whitehead, 2002). In winter, sperm whales concentrate east 
and northeast of Cape Hatteras. In spring, distribution shifts 
northward to the east of Delaware and Virginia, and is widespread 
throughout the central Mid-Atlantic Bight and the southern part of 
Georges Bank. In the fall, sperm whale occurrence on the continental 
shelf (inshore of the 100 m isobaths) south of New England reaches peak 
levels, and there remains a continental shelf edge occurrence in the 
Mid-Atlantic Bight (Hayes et al., 2021). No sperm whales were recorded 
during the Mid-Atlantic Bight surveys or the NJDEP EBS surveys. CETAP 
and NMFS Northeast Fisheries Science Center sightings in the shelf-edge 
and off-shelf waters included many social groups with calves and 
juveniles (CETAP, 1982). Sperm whales were usually seen at the tops of 
seamounts and rises and did not generally occur over slops. Sperm 
whales were recorded at depths varying from 800 to 3,500 m. Although 
the likelihood of occurrence within the survey area remains very low, 
the sperm whale was included as an affected species due to its high 
seasonal densities east of the survey area.

Atlantic White-Sided Dolphin

    White-sided dolphins are found in temperate and sub-polar waters of 
the North Atlantic, primarily in continental shelf waters to the 100 m 
depth contour from central West Greenland to North Carolina (Hayes et 
al., 2021). The Gulf of Maine stock is most common in continental shelf 
waters from Hudson Canyon to Georges Bank, and in the Gulf of Maine and 
lower Bay of Fundy. Sighting data indicate seasonal shifts in 
distribution (Northridge et al., 1997). During January to May, low 
numbers of white-sided dolphins are found from Georges Bank to Jeffreys 
Ledge (off New Hampshire), with even lower numbers south of Georges 
Bank, as documented by a few strandings collected on the beaches of 
Virginia to South Carolina. From June through September, large numbers 
of white-sided dolphins are found from Georges Bank to the lower Bay of 
Fundy. From October to December, white-sided dolphins occur at 
intermediate densities from southern Georges Bank to southern Gulf of 
Maine (Payne and Heinemann, 1990). Sightings south of Georges Bank, 
particularly around Hudson Canyon, occur year round but at low 
densities.

Atlantic Spotted Dolphin

    Atlantic spotted dolphins are found in tropical and warm temperate 
waters ranging from southern New England, south to the Gulf of Mexico 
and the Caribbean to Venezuela (Hayes et al., 2021). This stock 
regularly occurs in continental shelf waters south of Cape Hatteras and 
in continental shelf edges and slope waters north of this region (Hayes 
et al., 2021). There are two forms of this species, with the larger 
ecotype inhabiting the continental shelf and usually found within or 
near the 200 m isobaths (Hayes et al., 2021).

Bottlenose Dolphin

    There are two distinct bottlenose dolphin morphotypes in the 
western North Atlantic: The coastal and offshore forms (Hayes et al., 
2021). The offshore form is distributed primarily along the outer 
continental shelf and continental slope in the Northwest Atlantic Ocean 
from Georges Bank to the Florida Keys. The coastal morphotype is 
morphologically and genetically distinct from the larger, more robust 
morphotype that occupies habitats further offshore. Spatial 
distribution data, tag-telemetry studies, photo-ID studies and genetic 
studies demonstrate the existence of a distinct Northern Migratory 
coastal stock of coastal bottlenose dolphins (Hayes et al., 2021).
    North of Cape Hatteras, there is separation of the offshore and 
coastal morphotypes across bathymetric contours during summer months. 
Aerial surveys flown from 1979 through 1981 indicated a concentration 
of bottlenose dolphins in waters <25 m deep that corresponded with the 
coastal morphotype, and an area of high abundance along the shelf break 
that corresponded with the offshore stock (Hayes et al., 2020). Torres 
et al. (2003) found a statistically significant break in the 
distribution of the morphotypes; almost all dolphins found in waters 
>34 m depth and >34 km from shore were of the offshore morphotype. The 
coastal stock is best defined by its summer distribution, when it 
occupies coastal waters from the shoreline to the 20-m isobath between 
Virginia and New York (Hayes et al., 2021). This stock migrates south 
during late summer and fall, and during colder months it occupies 
waters off Virginia and North Carolina (Hayes et al., 2021). Therefore, 
during the summer, dolphins found inside the 20-m isobath in the survey 
area are likely to belong to the coastal stock, while those found in 
deeper waters or observed during cooler months belong to the offshore 
stock.

Long-Finned Pilot Whale

    Long-finned pilot whales are found from North Carolina to Iceland, 
Greenland and the Barents Sea (Hayes et al., 2021). In the U.S. 
Atlantic waters the species is distributed principally along the 
continental shelf edge off the northeastern U.S. coast in winter and 
early spring and in late spring, pilot whales move onto Georges Bank 
and into the Gulf of Maine northward, and remain in these areas through 
late fall (Hayes et al., 2021). Long-finned and short-finned pilot 
whales overlap spatially along the mid-Atlantic shelf break between 
Delaware and the southern flank of Georges Bank. Long-finned pilot 
whales have occasionally been observed stranded as far south as South 
Carolina, but sightings of long-finned pilot whales south of Cape 
Hatteras would be considered unusual (Hayes et al., 2021). The main 
threats to this species include interactions with fisheries and habitat 
issues including exposure to high levels of polychlorinated biphenyls 
and chlorinated pesticides, and toxic metals including mercury, lead, 
and cadmium, and selenium (Hayes et al., 2021).

Short-Finned Pilot Whale

    As described above, long-finned and short-finned pilot whales 
overlap spatially with the survey area and along the mid-Atlantic 
shelf. There is limited information on the distribution of short-finned 
pilot whales. They prefer warmer tropical waters and deeper waters 
offshore, and in the northeastern United States they are often sighted 
near the Gulf Stream (Hayes et al., 2021). Short-finned pilot whales 
have occasionally been observed stranded as far north as

[[Page 15930]]

Massachusetts but north of ~42[deg]N short-finned pilot whale sightings 
would be considered unusual while south of Cape Hatteras most pilot 
whales would expected to be short-finned pilot whales (Hayes et al., 
2021). As with long-finned pilot whales, the main threats to this 
species include interactions with fisheries and habitat issues 
including exposure to high levels of polychlorinated biphenyls and 
chlorinated pesticides, and toxic metals including mercury, lead, 
cadmium, and selenium (Hayes et al., 2021).

Risso's Dolphin

    Risso's dolphins are large dolphins with a characteristic blunt 
head and light coloration, often with extensive scarring. They are 
widely distributed in tropical and temperate seas. In the Western North 
Atlantic they occur from Florida to eastern Newfoundland (Leatherwood 
et al., 1976; Baird and Stacey, 1991). Off the U.S. Northeast Coast, 
Risso's dolphins are primarily distributed along the continental shelf, 
but can also be found swimming in shallower waters to the mid-shelf 
(Hayes et al., 2021).
    Risso's dolphins occur along the continental shelf edge from Cape 
Hatteras to Georges Bank during spring, summer, and autumn. In winter, 
they are distributed in the Mid-Atlantic from the continental shelf 
edge outward (Hayes et al., 2021). The majority of sightings during the 
2011 surveys occurred along the continental shelf break with generally 
lower sighting rates over the continental slope (Palka, 2012). Risso's 
dolphins can be found in Mid-Atlantic waters year-round and are more 
likely to be encountered offshore given their preference for deeper 
waters along the shelf edge. However, previous surveys have commonly 
observed this species in shallower waters, making it possible this 
species could be encountered in the survey area, particularly in summer 
when they are more abundant in this region (Curtice et al., 2019; 
Williams et al., 2015a, b; Hayes et al., 2021).

Common Dolphin

    The common dolphin is found world-wide in temperate to subtropical 
seas. In the North Atlantic, common dolphins are commonly found over 
the continental shelf between the 100-m and 2,000-m isobaths and over 
prominent underwater topography and east to the mid-Atlantic Ridge 
(Hayes et al., 2021). Common dolphins are distributed in waters off the 
eastern U.S. coast from Cape Hatteras northeast to Georges Bank 
(35[deg] to 42[deg] N) during mid-January to May and move as far north 
as the Scotian Shelf from mid-summer to autumn (CETAP, 1982; Hayes et 
al., 2020; Hamazaki, 2002; Selzer and Payne, 1988).

Harbor Porpoise

    Harbor porpoises commonly occur throughout Massachusetts Bay from 
September through April. During the fall and spring, harbor porpoises 
are widely distributed along the east coast from New Jersey to Maine. 
During the summer, the porpoises are concentrated in the Northern Gulf 
of Maine and Southern Bay of Fundy in water depths <150 m. In winter, 
densities increase in the waters off New Jersey to North Carolina and 
decrease in the waters from New York to New Brunswick; however, 
specific migratory timing or routes are not apparent. Although still 
considered uncommon, harbor porpoises were regularly detected offshore 
of Maryland during winter and spring surveys (Wingfield et al., 2017). 
They were the second most frequently sighted cetacean during the NJDEP 
EBS, with 90 percent of the sightings during the winter, three during 
the spring, and one during the summer (Whitt et al., 2015). The lack of 
sightings during the fall was attributed to low visibility conditions 
during those months, but available data indicate this species is likely 
present offshore New Jersey during fall and winter (Whitt et al., 
2015).
    In the survey area, only the Gulf of Maine/Bay of Fundy stock may 
be present. This stock is found in U.S. and Canadian Atlantic waters 
and is concentrated in the northern Gulf of Maine and southern Bay of 
Fundy region, generally in waters less than 150 m deep (Hayes et al., 
2021). They are seen from the coastline to deep waters (>1,800 m; 
Westgate et al. 1998), although the majority of the population is found 
over the continental shelf (Hayes et al., 2021). The main threat to the 
species is interactions with fisheries, with documented take in the 
U.S. northeast sink gillnet, mid-Atlantic gillnet, and northeast bottom 
trawl fisheries and in the Canadian herring weir fisheries (Hayes et 
al. 2021).

Harbor Seal

    The harbor seal is found in all nearshore waters of the North 
Atlantic and North Pacific Oceans and adjoining seas above 30 [deg]N 
(Burns, 2009). In the western North Atlantic, harbor seals are 
distributed from the eastern Canadian Arctic and Greenland south to 
southern New England and New York, and occasionally to the Carolinas 
(Hayes et al., 2021). The harbor seals within the survey area are part 
of the single Western North Atlantic stock. Between September and May 
they undergo seasonal migrations into southern New England and the Mid-
Atlantic (Hayes et al., 2021).
    From July 2018 through March 2020, elevated numbers of harbor seal 
and gray seal mortalities have occurred across Maine, New Hampshire and 
Massachusetts. Additionally, stranded seals have shown clinical signs 
as far south as Virginia, although no in elevated numbers, therefore 
the UME investigation encompassed all seal strandings from Maine to 
Virginia. A total of 3,152 reported strandings (of both harbor and gray 
seals) occurred during the declared UME. Full or partial necropsy 
examinations have been conducted on some of the seals and samples have 
been collected for testing. Based on tests conducted as of April 30, 
2021, the main pathogen found in the seals is phocine distemper virus. 
NMFS is performing additional testing to identify any other factors 
that may be involved in this UME. This event was declared a UME from 
2018 through 2020, and is currently pending closure to become non-
active. Therefore, this UME will not be addressed further in this 
document. Further information is available at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

Gray Seal

    There are three major populations of gray seals found worldwide; 
eastern Canada (western North Atlantic stock), northwestern Europe, and 
the Baltic Sea. Gray seals in the survey area belong to the Western 
North Atlantic stock. The range for this stock is thought to be from 
New Jersey to Labrador. Although gray seals are not regularly sighted 
offshore of Delaware, their range has been expanding southward in 
recent years, and have recently been observed as far south as the 
barrier islands of Virginia. Current population trends show that gray 
seal abundance is likely increasing in the U.S. Atlantic EEZ (Hayes et 
al., 2021). It is believed that recolonization by Canadian gray seals 
is the source of the U.S. population (Hayes et al., 2021). As described 
above, elevated seal mortalities, including gray seals, have occurred 
from Maine to Virginia from 2018 through 2020. Phocine distemper virus 
has been the main pathogen found in stranded seals. More information is 
available at: https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-life-distress/2018-2020-pinniped-unusual-mortality-event-along.

[[Page 15931]]

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for Mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

                  Table 3--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen        7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,     150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true         275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger
 & L. australis).
Phocid pinnipeds (PW) (underwater) (true    50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea    60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
16 marine mammal species (14 cetacean and 2 pinniped (both phocid) 
species) have the reasonable potential to co-occur with the proposed 
survey activities. Please refer to Table 2. Of the cetacean species 
that may be present, five are classified as low-frequency cetaceans 
(i.e., all mysticete species), nine are classified as mid-frequency 
cetaceans (i.e., all delphinid and ziphiid species and the sperm 
whale), and one is classified as high-frequency cetaceans (i.e., harbor 
porpoise and Kogia spp.).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
Orsted's specified activity may impact marine mammals and their 
habitat. Detailed descriptions of the potential effects of similar 
specified activities have been provided in other recent Federal 
Register notices, including for survey activities using the same 
methodology, over a similar amount of time, and occurring in the Mid-
Atlantic region, including Delaware waters (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 11239, February 24, 2021, 86 FR 28061, 
May 25, 2021). No significant new information is available, and we 
refer the reader to these documents rather than repeating the details 
here. The Estimated Take section includes a quantitative analysis of 
the number of individuals that are expected to be taken by Orsted's 
activity. The Negligible Impact Analysis and Determination section 
considers the potential effects of the specified activity, the 
Estimated Take section, and the Proposed Mitigation section, to draw 
conclusions regarding the likely impacts of these activities on the 
reproductive success or survivorship of individuals and how those 
impacts on individuals are likely to impact marine mammal species or 
stocks.

Summary on Specified Potential Effects of Acoustic Sound Sources

    Underwater sound from active acoustic sources can include one or 
more of the following: Temporary or permanent hearing impairment, non-
auditory physical or physiological effects, behavioral disturbance, 
stress, and masking. The degree of effect is intrinsically related to 
the signal characteristics, received level, distance from the source, 
and duration of the sound exposure. Marine mammals exposed to high-
intensity sound, or to lower-intensity sound for prolonged periods, can 
experience hearing threshold shift (TS), which is the loss of hearing 
sensitivity at certain frequency ranges (Finneran, 2015). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is not 
fully recoverable, or temporary (TTS), in which case the animal's 
hearing threshold would recover over time (Southall et al., 2007).
    Animals in the vicinity of Orsted's proposed site characterization 
survey activity are unlikely to incur even TTS due to the 
characteristics of the sound sources, which include relatively low 
sound source levels (176 to 205 dB re 1 [micro]Pa-m) and generally very 
short pulses and potential duration of exposure. These characteristics 
mean that instantaneous exposure is unlikely to cause TTS, as it is 
unlikely that exposure would occur close enough to the vessel for 
received levels to exceed peak pressure TTS criteria, and that the 
cumulative duration of exposure would be insufficient to exceed 
cumulative sound exposure level (SEL) criteria. Even for high-frequency 
cetacean species (e.g., harbor porpoises), which have the greatest 
sensitivity to potential TTS, individuals would have to make a very 
close approach and also remain very close to vessels operating these

[[Page 15932]]

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

Vessel Strike

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

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to noise from certain HRG acoustic sources. 
Based primarily on the characteristics of the signals proposed by the 
acoustic sources planned for use, Level A harassment is neither 
anticipated (even absent mitigation), nor proposed to be authorized. 
Consideration of the anticipated effectiveness of the measures (i.e., 
exclusion zones and shutdown measures), discussed in detail below in 
the Proposed Mitigation section, further strengthens the conclusion 
that Level A harassment is not a reasonably anticipated outcome of the 
survey activity. As described previously, no serious injury or 
mortality is anticipated or proposed to be authorized for this 
activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the

[[Page 15933]]

density or occurrence of marine mammals within these ensonified areas; 
and, (4) the number of days of activities. We note that while these 
basic factors can contribute to a basic calculation to provide an 
initial prediction of takes, additional information that can 
qualitatively inform take estimates is also sometimes available (e.g., 
previous monitoring results or average group size). Below, we describe 
the factors considered here in more detail and present the proposed 
take 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 for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 160 dB re 1 [mu]Pa (rms) for impulsive (e.g., 
sparkers and boomers) evaluated here for Orsted's proposed activity.
    Level A harassment for non-explosive sources--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 https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Orsted's proposed HRG survey includes the use of impulsive sources. 
However, as described above, NMFS has concluded that Level A harassment 
is not a reasonably likely outcome for marine mammals exposed to noise 
through use of the sources proposed for use here, and the potential for 
Level A harassment is not evaluated further in this document. Please 
see Orsted's application for details of a quantitative exposure 
analysis exercise, i.e., calculated Level A harassment isopleths and 
estimated Level A harassment exposures. Orsted did not request 
authorization of take by Level A harassment, and no take by Level A 
harassment is proposed for authorization by NMFS.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    NMFS has developed a user-friendly methodology for determining the 
rms sound pressure level (SPLrms) at the 160-dB isopleth for 
the purpose of estimating the extent of Level B harassment isopleths 
associated with HRG survey equipment (NMFS, 2020). This methodology 
incorporates frequency and some directionality to refine estimated 
ensonified zones. Orsted used NMFS's methodology, using the source 
level and operation mode of the equipment planned for used during the 
proposed survey, to estimate the maximum ensonified area over a 24-hr 
period also referred to as the harassment area (Table 1). Potential 
takes by Level B harassment are estimated within the ensonified area 
(i.e., harassment area) as an SPL exceeding 160 dB re 1 [micro]Pa for 
impulsive sources (e.g., sparkers, boomers) within an average day of 
activity.
    The harassment zone is a representation of the maximum extent of 
the ensonified area around a sound source over a 24-hr period. The 
harassment area was calculated per the following formula:

Stationary Source: Harassment zone = [pi]r\2\
Mobile Source: Harassment zone = (Distance/day 2r) + [pi]r\2\

    Where r is the linear distance from the source to the isopleth for 
the Level B harassment threshold and day = 1 (i.e., 24 hours).
    The estimated potential daily active survey distance of 70 km was 
used as the estimated areal coverage over a 24-hr period. This distance 
accounts for the vessel traveling at roughly 4 kn and only for periods 
during which equipment <180 kHz is in operation. A vessel traveling 4 
kn can cover approximately 110 km per day; however, based on data from 
2017, 2018, and 2019 surveys, survey coverage over a 24-hour period is 
closer to 70 km per day as a result of delays due to, e.g., weather, 
equipment malfunction. For daylight only vessels, the distance is 
reduced to 35 km per day; however, to maintain the potential for 24-hr 
surveys, the corresponding Level B harassment zones provide in Table 4 
were calculated for each source based on the Level B threshold 
distances within a 24-hour (70 km) operational period.

Table 4--Calculated Harassment Zones Encompassing Level B \1\ Thresholds
        for Each Sound Source or Comparable Sound Source Category
------------------------------------------------------------------------
                                         Level B            Level B
              Source                    harassment      harassment zone
                                      isopleths (m)       (km\2\) \2\
------------------------------------------------------------------------
ET 216 CHIRP......................                  9                1.3
ET 424 CHIRP......................                  4                0.6
ET 512i CHIRP.....................                  6                0.8
GeoPulse 5430.....................                 21                2.9
TB CHIRP III......................                 48                6.7
Pangeo SBI........................                 22                3.1
AA Triple plate S-Boom (700-1,000                  34                4.8
 J)...............................
AA, Dura-spark UHD Sparkers.......                141           \3\ 19.8

[[Page 15934]]

 
GeoMarine Sparkers................                141           \3\ 19.8
------------------------------------------------------------------------
AA = Applied Acoustics; CHIRP = compressed high-intensity radiated
  pulses; ET = edgetech; HF = high-frequency; J = joules; LF = low-
  frequency; MF = mid-frequency; PW = phocid pinnipeds in water; SBI =
  sub-bottom imager; SBP = sub-bottom profiler; TB = Teledyne benthos;
  UHD = ultra-high definition.
\1\ The applicant calculated both Level A and B isopleths to
  comprehensively assess the potential impacts of the predicted source
  operations as required for this Application. However, as described
  previously throughout this document, Level A takes are not expected
  and thus, are not proposed to be authorized, therefore they are not
  discussed in this document. Please refer to Orsted's application for
  more information.
\2\ Based on maximum threshold distances provided in Table 4 of Orsted's
  application and calculated for Level B root-mean-square sound pressure
  level thresholds.

Marine Mammal Occurrence

    In this section, we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Habitat based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020) 
represent the best available information regarding marine mammal 
densities in the survey area. The density data presented by Roberts et 
al. (2016, 2017, 2018, 2020) incorporate aerial and shipboard line-
transect data from NMFS and other organizations and incorporate data 
from 8 physiographic and 16 dynamic oceanographic and biological 
covariates, and control for the influence of sea state, group size, 
availability bias, and perception bias on the probability of making a 
sighting. These density models were originally developed for all 
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In 
subsequent years, certain models have been updated based on additional 
data as well as certain methodological improvements. More information 
is available online at https://seamap.env.duke.edu/models/Duke/EC/. 
Marine mammal density estimates in the survey area (animals/km\2\) were 
obtained using the most recent model results for all taxa (Roberts et 
al., 2016, 2017, 2018, 2020, 2021). The updated models incorporate 
sighting data, including sightings from NOAA's Atlantic Marine 
Assessment Program for Protected Species (AMAPPS) surveys.
    For exposure analysis, density data from Roberts et al., (2016, 
2017, 2018, 2020, 2021) were mapped using a geographic information 
system (GIS). Density grid cells that included any portion of the 
proposed survey Area were selected for all survey months (see Figure 3 
of Orsted's application). For the survey area (i.e., Lease Areas OCS-A-
0482, 5219), the densities for each species as reported by Roberts et 
al., 2016, 2017, 2018, 2020, 2021) were averaged by month; those values 
were then used to calculate the mean annual density for each species 
within the survey Area. Estimated mean monthly and annual densities 
(animals per km\2\) of all marine mammal species that may be taken by 
the proposed survey are shown in Table 7 of Orsted's application. The 
mean annual density values used to estimate take numbers are shown in 
Table 5 below.
    Due to limited data availability and difficulties identifying 
individuals to species level during visual surveys, individual 
densities are not able to be provided for all species and they are 
instead grouped into ``guilds'' (Roberts et al., 2021). These guilds 
include pilot whales, and seals. Long- and short-finned pilot whales 
are difficult to distinguish during shipboard surveys so individual 
habitat models were not able to be developed and thus, densities are 
assumed to apply to both species. Similarly, Roberts et al. (2018) 
produced density models for all seals but did not differentiate by seal 
species. Because the seasonality and habitat use by gray seals roughly 
overlaps with that of harbor seals in the survey areas, it was assumed 
that the mean annual density could refer to either of the represented 
species and was, therefore, divided equally between the two species.
    For bottlenose dolphin densities, Roberts et al. (2016, 2017, 2018, 
2020, 2021) does not differentiate by stock. As previously discussed, 
both the northern migratory coastal stock and the Western North 
Atlantic offshore stock are expected to occur in the proposed survey 
Area. To estimate densities for both stocks, the density blocks from 
within the survey Area were divided using the 20 m isobath (Hayes et 
al. 2021). Therefore, any density blocks located between the coastline 
and the 20 m isobath were attributed to the migratory coastal stock, 
and density blocks beyond this isobath were attributed to the offshore 
stock (see Table 5 for average annual densities calculated).

   Table 5--Estimated Average Annual Densities (Animals per km\2\) of
   Potentially Affected Marine Mammals Within the Proposed Survey Area
                 Based on Monthly Habitat Density Models
                [Roberts et al., 2017, 2018, 2020, 2021]
------------------------------------------------------------------------
                                                         Average annual
                       Species                          density (km\2\)
------------------------------------------------------------------------
Fin whale............................................              0.001
Sei Whale............................................                  0
Minke Whale..........................................             0.0003
Humpback whale.......................................             0.0005
North Atlantic Right Whale...........................             0.0017
Sperm Whale..........................................             0.0001
Atlantic White-Sided Dolphin.........................             0.0015
Atlantic Spotted Dolphin.............................             0.0007

[[Page 15935]]

 
Bottlenose Dolphin (Offshore) \1\....................             0.0569
Bottlenose Dolphin (Migratory) \1\...................             0.3972
Long-finned Pilot Whale \2\..........................             0.0004
Short-Finned Pilot Whale \2\.........................             0.0004
Risso's Dolphin......................................                  0
Common Dolphin.......................................             0.0101
Harbor Porpoise......................................             0.0085
Gray Seal \3\ \4\....................................             0.0007
Harbor Seal \3\ \4\..................................             0.0007
------------------------------------------------------------------------
\1\ Bottlenose dolphin stocks were delineated based on the 20-m isobath
  as identified in NMFS 2021 Stock Assessment Report; all density blocks
  falling inshore of the 20-m depth contour were assumed to belong to
  the migratory coastal stock, and those beyond this depth were assumed
  to belong to the offshore stock.
\2\ Roberts (2021) only provides density estimates for ``generic'' pilot
  whales, so individual densities for each species are unavailable and
  densities were therefore assumed to apply to both species as both
  species have the same potential to occur in the survey area.
\3\ Seal densities are not given by individual months or species,
  instead, seasons are divided as summer (June, July, August) and Winter
  (September-May) and applied to ``generic'' seals; as a result,
  reported seasonal densities for spring and fall are the same and are
  not provided for each species (Roberts, 2021) (See Table 7 in Orsted's
  application).
\4\ Data used to establish the density estimates from Roberts (2021) are
  based on information for all seal species that may occur in the
  Western North Atlantic (e.g., harbor, gray, hooded, harp). However,
  only the harbor seal and gray seal are reasonably expected to occur in
  the survey area, and the densities were split evenly between both
  species.

Take Calculation and Estimation

    Here, we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    For most species, the potential Level B harassment exposures were 
estimated by multiplying the average annual density of each species 
(Table 5) within the Lease Area and ECR area by the largest daily 
harassment zone (19.8 km\2\) (Table 4). That product was then 
multiplied by the number of operating vessel days (350), and the 
product is rounded to the nearest whole number:

Estimated take = species density x harassment zone x # of Survey Days

    For bottlenose dolphin densities, Roberts et al. (2016a, 2016b, 
2017, 2018, 2020) does not differentiate by individual stock. The WNA 
offshore stock is assumed to be located in depths exceeding the 20 m 
isobath, while the WNA Northern migratory coastal stock is assumed to 
be found in shallower depths than the 20 m isobath north of Cape 
Hatteras (Reeves et al., 2002; Waring et al., 2016). The maximum 
potential Level B harassment takes calculated for each stock of 
bottlenose dolphins are based on the full survey duration occurring 
inside or outside the 20 m isobath; however only a portion of the 
survey will occur in each area. At this time, Orsted does not know the 
exact number of survey days that may occur within each area, and could 
not differentiate the maximum number of calculated instances of take 
(2,752, calculated for the migratory stock) between the two stocks of 
bottlenose dolphins potentially present during the proposed survey 
activities. Orsted therefore requested, and NMFS proposes to authorize, 
2,752 instances of take of bottlenose dolphins, regardless of stock.
    No takes were calculated for sei whale, sperm whale, or Risso's 
dolphin; however, based on anticipated species distributions and data 
from previous surveys in the same general area it is possible that 
these species could be encountered. Therefore, Orsted requested, and 
NMFS proposes to authorize, takes of these species based on estimated 
group sizes (Kenney and Vigness-Raposa, 2010; Barkaszi and Kelly, 
2019). For common dolphins, only 70 takes were calculated. However, 
draft Protected Species Observer (PSO) reports from the ongoing Garden 
State and Skipjack surveys near the proposed action area and completed 
surveys from 2018 through 2020 indicate the potential for more common 
dolphins to be encountered in the area. Therefore, Orsted requested, 
and NMFS proposes to authorize, take of 400 common dolphins. Calculated 
exposure estimates and proposed take authorizations are shown in Table 
6.

 Table 6--Proposed Authorized Amount of Taking, by Level B Harassment Only, by Species and Stock and Percent of
                                                  Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                                                   Level B takes  Max percent of
                Species                           Stock              Abundance          \a\         population
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans:
    Fin whales........................  Western North Atlantic..           6,802               7            0.10
    Sei whales........................  Nova Scotia.............           6,292           0 (1)            0.02
    Minke whales......................  Canadian Eastern Coastal          21,968               2            0.01
    Humpback whales...................  Gulf of Maine...........           1,396               4            0.29
    North Atlantic right whale........  Western Atlantic........             368              11            2.99
Mid-frequency cetaceans:
    Sperm whale.......................  North Atlantic..........           4,349           0 (3)            0.07
    Atlantic white-sided dolphin......  Western North Atlantic..          93,233         10 (50)            0.05
    Atlantic spotted dolphin..........  Western North Atlantic..          39,921          5 (15)            0.04
    Common bottlenose dolphin \b\.....  WNA Offshore............          62,851       \c\ 2,752            4.38

[[Page 15936]]

 
                                        WNA Northern Migratory             6,639  ..............           41.45
                                         Coastal.
    Pilot whales......................  Short-finned............          28,924          3 (20)            0.07
                                        Long-finned.............          39,215          3 (20)            0.05
    Risso's dolphin...................  Western North Atlantic..          35,215          0 (30)            0.09
    Common dolphin....................  Western North Atlantic..         172,974        70 (400)            0.23
High-frequency cetaceans:
    Harbor porpoise...................  Gulf of Maine/Bay of              95,543              82            0.09
                                         Fundy.
Pinnipeds:
    Gray seal.........................  Western North Atlantic..          27,300               4            0.01
    Harbor seal.......................  Western North Atlantic..          61,336               4            0.01
----------------------------------------------------------------------------------------------------------------
\a\ Parentheses denote proposed take authorization where different from Orsted's calculated take estimates.
  Calculated takes were adjusted for the proposed take authorization in one of two ways: (1) For species for
  which calculated take was significantly less than the number of individuals reported in the available
  monitoring reports and any available draft data (e.g., ongoing surveys) in the area, the total number of
  individuals reported were used for take requests; (2) For species with no calculated takes, or takes were less
  than mean group size, requested takes were based the mean group sizes derived from the following references:
 Sei whale: Kenney and Vigness-Raposa, 2010
 Sperm whale: Barkaszi and Kelly, 2018
 Atlantic white-sided dolphin: NMFS, 2021
 Atlantic spotted dolphin: NMFS, 2021
 Pilot whales: Kenney and Vigness-Raposa, 2010
\b\ Risso's dolphin: Barkaszi and Kelly, 2018; and Take estimate is based on the maximum number of calculated
  instances of take for either stock and is assumed to apply to all bottlenose dolphins potentially present in
  the survey area. Therefore takes could consist of individuals from either the Offshore or the Northern
  Migratory Coastal stock. Although unlikely, for purposes of calculating max percentage of population, we
  assume all takes could be allocated to either stock.
\c\ Assumes multiple repeated takes of same individuals from each stock. Please see the Small Numbers section
  for additional information.

Proposed Mitigation

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

Mitigation for Marine Mammals and Their Habitat

    NMFS proposes the following mitigation measures be implemented 
during Orsted's proposed marine site characterization surveys. Pursuant 
to section 7 of the ESA, Orsted would also be required to adhere to 
relevant Project Design Criteria (PDC) of the NMFS Greater Atlantic 
Regional Office (GARFO) programmatic consultation (specifically PDCs 4, 
5, and 7) regarding geophysical surveys along the U.S. Atlantic coast 
(see NOAA GARFO, 2021; https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation).

Marine Mammal Exclusion Zones and Harassment Zones

    Marine mammal Exclusion Zones (EZ) would be established around the 
HRG survey equipment and monitored by NMFS-approved protected species 
observers (PSOs):
     500 m EZ for North Atlantic right whales (NARW) during use 
of acoustic sources <180 kHz (e.g., Sparkers, Non-parametric sub-bottom 
profilers); and
     100 m EZ for all other marine mammals, with certain 
exceptions specified below, during operation of impulsive acoustic 
sources (boomer and/or sparker).
    If a marine mammal is detected approaching or entering the EZs 
during the HRG survey, the vessel operator would adhere to the shutdown 
procedures described below to minimize noise impacts on the animals. 
These stated requirements will be included in the site-specific 
training to be provided to the survey team.

Pre-Start Clearance

    Marine mammal clearance zones would be established around the HRG 
survey equipment and monitored by protected species observers (PSOs):
     500 m for all ESA-listed marine mammals; and
     100 m for all other marine mammals.
    Orsted would implement a 30-minute pre-start clearance period prior 
to the initiation of ramp-up of specified HRG equipment. During this 
period, clearance zones will be monitored by PSOs, using the 
appropriate visual technology. Ramp-up may not be initiated if any 
marine mammal(s) is within its respective clearance zone. If a marine 
mammal is observed within a

[[Page 15937]]

clearance zone during the pre-star clearance period, ramp-up may not 
begin until the animal(s) has been observed exiting its respective 
exclusion zone or until an additional time period has elapsed with no 
further sighting (i.e., 15 minutes for small odontocetes and seals, and 
30 minutes for all other species).

Ramp-Up of Survey Equipment

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
acoustic source when technically feasible. The ramp-up procedure would 
be used at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the survey area by 
allowing them to vacate the area prior to the commencement of survey 
equipment operation at full power. Operators should ramp-up sources to 
half power for 5 minutes and then proceed to full power.
    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 30 minutes for all other species).
    Ramp-up may occur at times of poor visibility, including nighttime, 
if appropriate visual monitoring has occurred with no detections of 
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic 
source activation may only occur at night where operational planning 
cannot reasonably avoid such circumstances.

Shutdown Procedures

    An immediate shutdown of the impulsive HRG survey equipment would 
be required if a marine mammal is sighted entering or is 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 operatory 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., 15 
minutes for small odontocetes and 30 minutes for all other species).
    If species for which authorization has not been granted, or, a 
species for which authorization has been granted but the authorization 
number of takes have been met, approaches or is observed within the 
Level B harassment zone (Table 4), shutdown would occur.
    If the acoustic source is shut down for reasons other than 
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it 
may be activated again without ramp-up if SOs have maintained constant 
observation and no detections of any marine mammal have occurred within 
the respective exclusion zones. If the acoustic source is shut down for 
a period longer than 30 minutes, then pre-clearance and ramp-up 
procedures will be initiated as described in the previous section.
    The shutdown requirement would be waived for pinnipeds and for 
small delphinids of the following genera: Delphinus, Lagenorhynchus, 
Stenella, and Tursiops. 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 is 
detected in the exclusion zone and belongs to a genus other than those 
specified.
    Shutdown, pre-start clearance, and ramp-up procedures are not 
required during HRG survey operations using only non-impulsive sources 
(e.g., echosounders) other than non-parametric sub-bottom profilers 
(e.g., CHIRPs).

Vessel Strike Avoidance

    Orsted must adhere to the following measures except in the 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:
     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 
identify a marine mammal as a right whale, other whale (defined in this 
context as sperm whales or baleen whales other than right whales), or 
other marine mammal;
     All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specified areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes including 
seasonal management areas (SMAs) and dynamic management areas (DMAs) 
when in effect;
     Members of the monitoring team will consult NMFS North 
Atlantic right whale reporting system and Whale Alert, as able, for the 
presence of North Atlantic right whales throughout survey operations, 
and for the establishment of a DMA. If NMFS should establish a DMA in 
the survey area during the survey, the vessels will abide by speed 
restrictions in the DMA;
     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 kn or less at all times;
     All vessels must reduce their speed to 10 kn or less when 
mother/calf pairs, pods, or large assemblages of any species of 
cetaceans is observed near a vessel;
     All vessels must maintain a minimum separation distance of 
500 m from right whales and other ESA-listed large whales;
     If a whale is observed but cannot be confirmed as a 
species other than a right whale or other ESA-listed large 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 non-ESA listed whales;
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel);
     When marine mammals are sighted while a vessel is 
underway, the vessel shall take action as necessary to avoid violating 
the relevant separation distance (e.g., attempt to remain parallel to 
the animal's course, avoid excessive speed or abrupt changes in 
direction until the animal has left the area). If marine mammals are 
sighted within the relevant separation distance, the vessel must reduce 
speed and shift the engine to neutral, not engaging the engines until 
animals are clear of the area. This does not apply to any vessel towing 
gear

[[Page 15938]]

or any vessel that is navigationally constrained.
    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 to by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effective the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

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

Proposed Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Orsted would employ 
independent, dedicated, trained PSOs, meaning that the PSOs must (1) be 
employed by a third-party observer provider, (2) have no tasks other 
than to conduct observational effort, collect data, and communicate 
with and instruct relevant vessel crew with regard to the presence of 
marine mammals and mitigation requirements (including brief alerts 
regarding maritime hazards), and (3) have successfully completed an 
approved PSO training course appropriate for their designated task. On 
a case-by-case basis, non-independent observers may be approved by NMFS 
for limited, specified duties in support of approved, independent PSOs 
on smaller vessels with limited crew operating in nearshore waters.
    The PSOs will be responsible for monitoring the waters surrounding 
each survey vessel to the farthest extent permitted by sighting 
conditions, including exclusion zones, during all HRG survey 
operations. PSOs will visually monitor and identify marine mammals, 
including those approaching or entering the established exclusion zones 
during survey activities. It will be the responsibility of the Lead PSO 
on duty to communicate the presence of marine mammals as well as to 
communicate the action(s) that are necessary to ensure mitigation and 
monitoring requirements are implemented as appropriate.
    During all HRG survey operations (e.g., any day on which use of an 
HRG source is planned to occur), a minimum of one PSO must be on duty 
during daylight operations on each survey vessel, conducting visual 
observations at all times on all active survey vessels during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). Two PSOs will be on watch during nighttime 
operations. The PSO(s) would ensure 360 degree visual coverage around 
the vessel from the most appropriate observation posts and would 
conduct visual observations using binoculars and/or night vision 
goggles and the naked eye while free from distractions and in a 
consistent, systematic, and diligent manner. PSOs may be on watch for a 
maximum of 4 consecutive hours followed by a break of at least 2 hours 
between watches and may conduct a maximum of 12 hours of observations 
per 24-hr period. In cases where multiple vessels are surveying 
concurrently, any observations of marine mammals would be communicated 
to PSOs on all nearby survey vessels.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to exclusion zones. Reticulated binoculars must also be 
available to PSOs for use as appropriate based on conditions and 
visibility to support the sighting and monitoring of marine mammals. 
During nighttime operations, night-vision goggles with thermal clip-ons 
and infrared technology would be used. Position data would be recorded 
using hand-held or vessel GPS units for each sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard any vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements. This would include dates, 
times, and locations of survey operations; dates and times of 
observations, location and weather, details of marine mammal sightings 
(e.g., species, numbers, behaviors); and details of any observed marine 
mammal behavior that occurs (e.g., notes behavioral disturbances). For 
more detail on the proposed monitoring requirements, see Condition 5 of 
the draft IHA.

[[Page 15939]]

Proposed Reporting Measures
    Within 90 days after completion of survey activities or expiration 
of this IHA, whichever comes sooner, a draft comprehensive 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. A final report must be 
submitted within 30 days following any comments on the draft report. 
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 names;
     Dates and times (Greenwich Mean Time) of survey effort and 
times corresponding with PSO effort;
     Vessel location (latitude/longitude) when survey effort 
begins and ends; vessel location at beginning and end of visual PSO 
duty shifts;
     Vessel heading and speed at beginning and end of visual 
PSO duty shifts and upon any line change;
     Environmental conditions while on visual survey (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including wind speed and direction, Beaufort sea state, 
Beaufort wind force, swell height, weather conditions, cloud cover, sun 
glare, and overall visibility to the horizon;
     Factors that may be contributing to impaired observations 
during each PSO shift change or as needed as environmental conditions 
change (e.g., vessel traffic, equipment malfunctions); and
     Survey activity information, such as type of survey 
equipment in operation, acoustic source power output while in 
operation, and any other notes of significance (i.e., pre-clearance 
survey, ramp-up, shutdown, end of operations, etc.).
    If a marine mammal is sighted, the following information should be 
recorded:
     Watch status (sighting made by PSO on/off effort, 
opportunistic, crew, alternate vessel/platform);
     PSO who sighted the animal;
     Time of sighting;
     Vessel location at time of sighting;
     Water depth;
     Direction of vessel's travel (compass direction);
     Direction of animal's travel relative to the vessel;
     Pace of the animal;
     Estimated distance to the animal and its heading relative 
to vessel at initial sighting;
     Identification of the animal (e.g., genus/species, lowest 
possible taxonomic level, or unidentified); also note the composition 
of the group if there is a mix of species;
     Estimated number of animals (high/low/best);
     Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
     Description (as many distinguishing features as possible 
of each individual seen, including length, shape, color, pattern, scars 
or markings, shape and size of dorsal fin, shape of head, and blow 
characteristics);
     Detailed behavior observations (e.g., number of blows, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior);
     Animal's closest point of approach and/or closest distance 
from the center point of the acoustic source;
     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, Orsted 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 Orsted personnel discover an injured or dead 
marine mammal, Orsted 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 this activities covered by the IHA, Orsted would 
report the incident to NMFS OPR and the NMFS New/England/Mid-Atlantic 
Stranding Coordinator as soon as feasible. The report would include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Species identification (if known) or description of the 
animal(s) involved;
     Vessel's speed during and leading up to the incident;
     Vessel's course/heading and what operations were being 
conducted (if applicable);
     Status of all sound sources in use;
     Description of avoidance measures/requirements that were 
in place at the time of the strike and what additional measures were 
taken, if any, to avoid strike;
     Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
     Estimated size and length of animal that was struck;
     Description of the behavior of the marine mammal 
immediately preceding and following the strike;
     If available, description of the presence and behavior of 
any other marine mammals immediately preceding the strike;
     Estimated fate of the animal (e.g., dead, injured but 
alive, injured and moving, blood or tissue observed in the water, 
status unknown, disappeared); and
     To the extent practicable, photographs or video footage of 
the animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact

[[Page 15940]]

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. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their 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 species listed in 
Table 6, given that NMFS expects the anticipated effects of the 
proposed survey to be similar in nature. Where there are meaningful 
differences between species or stocks--as is the case of the North 
Atlantic right whale--they are included as separate subsections below. 
NMFS does not anticipate that serious injury or mortality would occur 
as a result from HRG surveys, even in the absence of mitigation, and no 
serious injury or mortality is proposed to be authorized. As discussed 
in the Potential Effects of Specified Activities on Marine Mammals and 
their Habitat section, non-auditory physical effects and vessel strike 
are not expected to occur. NMFS expects that all potential takes would 
be in the form of 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, 
2021). 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 the 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 proposed survey 
area and there are no feeding areas known to be biologically important 
to marine mammals within the proposed survey area. The proposed survey 
area lies significantly south (over 250 miles (402 km)) of where 
Biologically Important Areas are defined for fin and humpback whales. 
Therefore, they are not considered to be ``nearby'' the survey area and 
are not discussed further. There is no designated critical habitat for 
any ESA-listed marine mammals in the proposed survey area.

North Atlantic Right Whales

    The status of the North Atlantic right whale (NARW) population is 
of heightened concern and therefore, merits additional analysis. As 
noted previously, elevated NARW 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. The proposed survey 
area overlaps with a migratory corridor Biologically Important Area 
(BIA) for North Atlantic right whales (effective March-April; November-
December) that extends from Massachusetts to Florida (LaBrecque et al., 
2015). Off the coast of Delaware, this migratory BIA extends from the 
coast to beyond the shelf break. Due to the fact that the proposed 
survey activities would be very small relative to the spatial extent of 
the available migratory habitat in the BIA, right whale migration is 
not expected to be impacted by the proposed survey. Given the 
relatively small size of the ensonified area, it is unlikely that prey 
availability would be adversely affected by HRG survey operations. 
Required vessel strike avoidance measures will also decrease risk of 
ship strike during migration; no ship strike is expected to occur 
during Orsted's proposed activities. Additionally, only very limited 
take by Level B harassment of NARW has been requested and is being 
proposed for authorization by NMFS as HRG survey operations are 
required to maintain a 500 EZ and shutdown if a NARW 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 sources (i.e., GeoMarine Sparkers, AA Dura-spark UHD 
Sparkers, AA Triple plate S-Boom) 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, nor authorized, 
due to the small PTS zones associated with HRG equipment types proposed 
for use. NMFS does not anticipate NARW takes that result from the 
proposed survey activities would impact annual rates of recruitment or 
survival. Thus, any takes that occur would not result in population 
level impacts.

Other Marine Mammals With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of Garden State's proposed survey area. Elevated humpback 
whale mortalities have occurred along the Atlantic coast from Maine 
through Florida since January 2016. Of the cases examined, 
approximately half had evidence of human interaction (ship strike or 
entanglement). The UME does not yet provide cause for concern regarding 
population-level impacts. Despite the UME, the relevant population of 
humpback whales (the West Indies breeding population, or DPS) remains 
stable at approximately 12,000 individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.

[[Page 15941]]

    The required mitigation measures are expected to reduce the number 
and/or severity of proposed takes for all species listed in Table 6, 
including those with active UMEs, to the level of least practicable 
adverse impact. In particular, they would provide animals the 
opportunity to move away from the sound source throughout the survey 
area before HRG survey equipment reaches full energy, thus preventing 
them from being exposed to sound levels that have the potential to 
cause injury (Level A harassment) or more severe Level B harassment. No 
Level A harassment is anticipated, even in the absence of mitigation 
measures, or proposed for authorization.
    NMFS expects that takes would be in the form of short-term Level B 
behavioral harassment by way of brief startling reactions and/or 
temporary vacating of the area, or decreased foraging (if such activity 
was occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, the required mitigation measures 
would further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or proposed 
for authorization;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or proposed for authorization;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be of Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the survey area;
     While the survey area is within areas noted as a migratory 
BIA for North Atlantic right whales, the activities would occur in such 
a comparatively small area such that any avoidance of the survey area 
due to activities would not affect migration. In addition, mitigation 
measures require shutdown at 500 m (almost four times the size of the 
Level B harassment isopleth (141 m), which minimizes the effects of the 
take on the species; and
     The proposed mitigation measures, including visual 
monitoring and shutdowns, are expected to minimize potential impacts to 
marine mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    The amount of take NMFS proposes to authorize is below one third of 
the estimated stock abundance for all species (in fact, take of 
individuals is less than 5 percent of the abundance of the affected 
stocks for these species, see Table 6) except for the WNA northern 
migratory coastal stock of bottlenose dolphins. The figures presented 
in Table 6 are likely conservative estimates as they assume all takes 
are of different individual animals which is likely not to be the case. 
Some individuals may return multiple times in a day, but PSOs would 
count them as separate takes if they cannot be individually identified. 
This is the particularly the case for bottlenose dolphins.
    As mentioned above, there are two bottlenose dolphin stocks that 
could occur in the survey area: The WNA Offshore and WNA northern 
migratory coastal stocks. Given the uncertainty regarding the number of 
days Orsted's proposed survey may be within the 20 m isobath, the 
proposed authorization of 2,752 instances of take by Level B harassment 
is not allocated to a specific stock but rather could be of either 
stock. However, based on the stocks' respective occurrence in the area 
and the consideration of various factors as described below, we have 
determined that the number of individuals taken would comprise of less 
than one-third of the best available population abundance estimate of 
either stock. Detailed descriptions of the stocks' ranges have been 
provided in the Description of Marine Mammals in the Area of Specified 
Activities section.
    Both the northern migratory and offshore stocks have expansive 
ranges and are the only dolphin stocks thought to make broad-scale, 
seasonal migrations in the coastal waters of the North Atlantic. Given 
the large ranges associated with these two stocks, it is unlikely that 
large segments of either stock would consistently remain in the survey 
area. The majority of both stocks are likely to be found widely 
dispersed across their respective habitat ranges, and individuals 
within each stock migrate on a seasonal basis.
    The northern migratory stock spans from the shelf waters of Florida 
to Long Island, New York and experience spatiotemporal overlap with 
several other bottlenose dolphin stocks in the Western North Atlantic. 
The stock is best defined by its distribution during summer water 
months (July and August), when it overlaps with the fewest stocks, 
during which it occupies coastal waters from the shoreline to 
approximately the 20-m isobath between Assateague, Virginia and Long 
Island, New York (Hayes et al., 2021). However, during the winter 
months (e.g., January and February), the stock occupies coastal waters 
from approximately Cape Lookout, North Carolina to the North Carolina/
Virginia border. A study of tagged individuals found that four dolphins 
off the coast of New Jersey in the late summer moved south to North 
Carolina and inhabited waters near and just south of Cape Hatteras 
during cold water months. These animals then returned to the coastal 
waters of New Jersey in the following warm weather months (Garrison et 
al., 2017). Additionally, during aerial and ship surveys off the New 
Jersey coast in 2008 and 2009, no sightings of common bottlenose 
dolphins were made during November through February, and bottlenose 
dolphins were sighted from early March to mid-October and were most 
abundant

[[Page 15942]]

during May-August. Therefore, the stock is not expected to be present 
in its entirety year round at the proposed project location.
    Further, many of the dolphin observations in the Delaware Bay and 
South of Cape May, NJ are likely repeated sightings of the same 
individuals. A by Toth et al., (2010) conducted 73 boat-based photo-
identification surveys in southern New Jersey near the Bay from 2003-
2005 and found that of the 205 individuals identified, 44 percent were 
sighted multiple times within or among the years. Multiple sightings of 
the same individual would considerably reduce the number of individual 
animals that are taken by harassment.
    The offshore stock is distributed primarily along the outer 
continental shelf and continental slope in the Northwest Atlantic Ocean 
from Georges Band to the Florida Keys (Hayes et al., 2021). There is 
suspected overlap of the two stocks south of Cape Hatteras, North 
Carolina to some degree.
    In summary and as described above, the following factors primarily 
support our determination regarding the incidental take of small 
numbers of the affected stocks of a species or stock:
     The take of marine mammal stocks comprises less than 5 
percent of any stock abundance (with the exception of the northern 
migratory stock of bottlenose dolphins);
     Potential bottlenose dolphin takes in the survey area are 
likely to be allocated between both distinct stocks;
     Bottlenose dolphin stocks in the survey area have 
extensive ranges and it would be unlikely to find a high percentage of 
individuals from either stock concentrated in a relatively small area 
such as the proposed survey area;
     Many of the takes would likely be repeats of the same 
animals, especially during summer months.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS Office of Protected Resources (OPR) consults internally whenever 
we propose to authorize take for endangered or threatened species.
    NMFS OPR is proposing to authorize the incidental take of four 
species of marine mammals which are listed under the ESA, including the 
North Atlantic right, fin, sei, and sperm whale, and NMFS has 
determined that issuance of the proposed IHA falls within the scope of 
activities analyzed in NMFS GARFO's programmatic consultation regarding 
geophysical surveys along the U.S. Atlantic coast in the three Atlantic 
Renewable Energy Regions (completed June 29, 2021; revised September 
2021).

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to Orsted for conducting marine site characterization 
surveys off the coast of Delaware from May 10, 2022 through May, 2023, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. A draft of the proposed IHA can be found 
at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

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

    Dated: March 16, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-05935 Filed 3-18-22; 8:45 am]
BILLING CODE 3510-22-P