Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the Area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Areas OCS-A 0486, 0487, and 0500, 61575-61590 [2022-22150]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 87, Number 196 (Wednesday, October 12, 2022)]
[Notices]
[Pages 61575-61590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22150]



[[Page 61575]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC326]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys in the Area of Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (OCS) Lease 
Areas OCS-A 0486, 0487, and 0500

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

ACTION: Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Orsted Wind Power North America LLC (Orsted) to incidentally harass, by 
Level B harassment only, marine mammals during marine site 
characterization surveys offshore from Rhode Island to Massachusetts, 
including the areas of Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf Lease Areas 
OCS-A 0486, 0487, 0500, and along potential export cable routes (ECR)s 
to landfall locations between Raritan Bay and Falmouth, MA.

DATES: This authorization is effective for one year from the date of 
issuance.

FOR FURTHER INFORMATION CONTACT: Jessica Taylor, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act-other-energy-activities-renewable. 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 IHA 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.

Summary of Request

    On April 19, 2022, NMFS received a request from Orsted for an IHA 
to take small numbers of marine mammals incidental to marine site 
characterization surveys in federal waters located in the OCS 
Commercial Lease Areas off the coasts from Rhode Island to 
Massachusetts, and along potential ECRs to landfall locations between 
Raritan Bay (part of the New York Bight) and Falmouth, Massachusetts. 
Following NMFS' review of the draft application, a revised version was 
submitted on July 8, 2022. The application was deemed adequate and 
complete on August 3, 2022. Orsted's request is for take of 16 species 
of marine mammals (consisting of 16 stocks) by Level B harassment only. 
Neither Orsted nor NMFS expect serious injury or mortality to result 
from this activity and, therefore, an IHA is appropriate.
    NMFS previously issued IHAs and a renewal IHA to Orsted for marine 
site characterization HRG surveys in the OCS-A 0486, 0487, and 0500 
Lease Areas (84 FR 52464, October 2, 2019; 85 FR 63508, October 8, 
2020; 87 FR 13975, March 11, 2022). Orsted complied with all the 
requirements (e.g., mitigation, monitoring, and reporting) of the 
previous IHAs and information regarding their monitoring results may be 
found in the Effects of the Specified Activity on Marine Mammals and 
their Habitat section in the proposed Federal Register notice (87 FR 
52515). There are no changes from the proposed IHA to the final IHA.
    On August 1, 2022, NMFS announced proposed changes to the existing 
North Atlantic right whale vessel speed regulations to further reduce 
the likelihood of mortalities and serious injuries to endangered right 
whales from vessel collisions, which are a leading cause of the 
species' decline and a primary factor in an ongoing Unusual Mortality 
Event (87 FR 46921). Should a final vessel speed rule be issued and 
become effective during the effective period of this IHA (or any other 
MMPA incidental take authorization), the authorization holder would be 
required to comply with any and all applicable requirements contained 
within the final rule. Specifically, where measures in any final vessel 
speed rule are more protective or restrictive than those in this or any 
other MMPA authorization, authorization holders would be required to 
comply with the requirements of the rule. Alternatively, where measures 
in this or any other MMPA authorization are more restrictive or 
protective than those in any final vessel speed rule, the measures in 
the MMPA authorization would remain in place. These changes would 
become effective immediately upon the effective date of any final 
vessel speed rule and would not require any further action on NMFS's 
part.

Description of Authorized Activity

Overview

    Orsted plans to conduct HRG surveys in the Lease Areas OCS-A 0486, 
0487, 0500 and ECR Area in federal and state waters from New York to 
Massachusetts to support the characterization of the existing seabed 
and subsurface geological conditions, which is necessary for the 
development of an offshore electric transmission system. The project 
will use active acoustic sources, including some with potential to 
result in the incidental take of marine mammals by Level B harassment. 
This take of marine mammals is anticipated to be in the form of 
behavioral harassment only. In-water work will include approximately 
400 survey days using multiple vessels for a period of one year.

Dates and Duration

    As described above, HRG surveys are expected to consist of 
approximately 400 survey days (Table 1) over the course of one year. 
Orsted plans to conduct continuous HRG survey operations 12-hours per 
day and 24-

[[Page 61576]]

hours per day using multiple vessels. A survey day is defined as a 24-
hour activity day in which an assumed number of line kilometer (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 covers, on average 70 
line kilometer (km) per 24-hour operations. A survey day accounts for 
multiple vessels such that two vessels operating within one 24-hour 
period equates to two survey days. A maximum of three vessels will work 
concurrently in the project area in any combination of 24-hour and 12-
hour vessels. To be conservative, our exposure analysis assumes daily 
24-hour operations. Although vessels may complete 20-80 km/day of 
actual source operations, we anticipate that vessels will average 70 
line km of active sources assumed to potentially cause take of marine 
mammals per day. As shown by Table 1, the estimated number of survey 
days varies by Lease Area and ECR.

       Table 1--Number of Survey Days for Each Lease Area and ECR
------------------------------------------------------------------------
                                                           Total number
                          Area                            of survey days
                                                                \1\
------------------------------------------------------------------------
OCS-A-0486..............................................              10
OCA-A-0487..............................................              10
OCS-A-0500..............................................             200
ECR.....................................................             180
                                                         ---------------
    Total...............................................             400
------------------------------------------------------------------------
\1\ Up to three total survey vessels may be operating within both of the
  survey areas concurrently.

Specific Geographic Region

    Orsted's survey activities will occur in the Lease Areas located 
approximately 14 miles (22.5 km) south of Martha's Vineyard, 
Massachusetts at its closest point to land, as well as along potential 
export cable route (ECR) corridors off the coast of New York, 
Connecticut, Rhode Island, and Massachusetts to landfall locations 
between Raritan Bay and Falmouth, MA, as shown in Figure 1. Water 
depths in the project area extend out from shoreline to approximately 
90 m in depth.
[GRAPHIC] [TIFF OMITTED] TN12OC22.003

    Orsted plans 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 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. A detailed description of the 
planned HRG surveys is provided in the Federal Register notice for the 
proposed IHA (87 FR 52515; August 26, 2022). Since that time, no 
changes have been made to the planned HRG survey activities. Therefore, 
a detailed description is not provided here. Please refer to that 
Federal Register notice for the description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Orsted was published 
in the

[[Page 61577]]

Federal Register on August 26, 2022 (87 FR 52515), initiating a 30-day 
public comment period. The proposed notice described, in detail, 
Orsted's activities, the marine mammal species that may be affected by 
the activities, and the anticipated effects on marine mammals. In that 
notice, we requested public input on the request for authorization 
described therein, our analyses, the proposed authorization, and any 
other aspect of the notice of proposed IHA, and requested that 
interested persons submit relevant information, suggestions, and 
comments.
    During the 30-day public comment period, NMFS received one comment 
from a private citizen that did not provide relevant information to 
NMFS' decision, and one comment letter from Responsible Offshore 
Development Alliance (RODA). A summary of comments from RODA and NMFS' 
responses is provided below; the letter is available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-marine-site-0. Please review the letter 
for full details regarding the comments and underlying justification.
    Comment 1: RODA states that, to their knowledge, there are no 
resources easily accessible to the public to understand what 
authorizations are required for each of these activities (pre-
construction surveys, construction, operations, monitoring surveys, 
etc.). RODA recommends that NMFS improve the transparency of this 
process and move away from what it refers to as a ``segmented phase-by-
phase and project-by-project approach to IHAs.''
    NMFS' response: The MMPA, and its implementing regulations, allows, 
upon request, the incidental take of small numbers of marine mammals by 
U.S. citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographic region. NMFS responds to these 
requests by authorizing the incidental take of marine mammals if it is 
found that the taking would be of small numbers, have no more than a 
``negligible impact' on the marine mammal species or stock, and not 
have an ``unmitigable adverse impact'' on the availability of the 
species or stock for subsistence use. NMFS emphasizes that an IHA does 
not authorize the activity itself but authorizes the take of marine 
mammals incidental to the ``specified activity'' for which incidental 
take coverage is being sought. In this case, NMFS is responding to the 
applicant, Orsted, and the specified activity described in their 
application and making necessary findings on the basis of what was 
provided in their application. The authorization of Orsted's activity 
(note, not the authorization of takes incidental to that activity) is 
not within the jurisdiction of NMFS. NMFS refers RODA to the Permitting 
Dashboard for Federal Infrastructure Projects for further information 
on timelines and proposed authorizations planned for application for 
each of these activities: https://www.permits.performance.gov/.
    NMFS is required to consider applications upon request. To date, 
NMFS has not received any joint applications. While an individual 
company owning multiple lease areas may apply for a single 
authorization to conduct site characterization surveys across a 
combination of those lease areas (see 85 FR 63508, October 8, 2020; 87 
FR 13975, March 11, 2022), this is not applicable in this case. In the 
future, if applicants wish to undertake this approach, NMFS is open to 
the receipt of joint applications and additional discussions on joint 
actions.
    Comment 2: RODA expressed concern regarding the potential for 
increased uncertainty in estimates of marine mammal abundance resulting 
from wind turbine presence during aerial surveys and potential effects 
of NMFS' ability to continue using current aerial survey methods to 
fulfill its mission of precisely and accurately assessing protected 
species.
    NMFS' response: NMFS has determined that offshore wind development 
projects may impact several surveys carried out by its Northeast 
Fisheries Science Center (NEFSC), including aerial surveys for 
protected species. NEFSC has developed a federal survey mitigation 
program to mitigate the impacts to these surveys, and is in the early 
stages of implementing this program. However, this impact is outside 
the scope of analysis related to the authorization of take incidental 
to Orsted's specified activity under the MMPA.
    Comment 3: RODA expressed concerns with the high amount of 
increased vessel traffic associated with the OSW projects throughout 
the region in areas transited or utilized by certain protected 
resources, as well as concern for vessel noise.
    NMFS' response: Orsted did not request authorization for take 
incidental to vessel traffic during Orsted's marine site 
characterization survey. Nevertheless, NMFS analyzed the potential for 
vessel strikes to occur during the survey, and determined that the 
potential for vessel strike is so low as to be discountable. NMFS does 
not authorize any take of marine mammals incidental to vessel strike 
resulting from the survey. If Orsted were to strike a marine mammal 
with a vessel, this would be an unauthorized take and be in violation 
of the MMPA. This gives Orsted a strong incentive to operate its 
vessels with all due caution and to effectively implement the suite of 
vessel strike avoidance measures called for in the IHA. Orsted proposed 
a very conservative suite of mitigation measures related to vessel 
strike avoidance, including measures specifically designed to avoid 
impacts to North Atlantic right whales. Section 4(g) in the IHA 
contains a suite of non-discretionary requirements pertaining to ship 
strike avoidance, including vessel operation protocols and monitoring. 
To date, NMFS is not aware of any site characterization vessel from 
surveys reporting a vessel strike within the United States. When 
considered in the context of low overall probability of any vessel 
strike by Orsted vessels, given the limited additional survey-related 
vessel traffic relative to existing traffic in the survey area, the 
comprehensive visual monitoring, and other additional mitigation 
measures described herein, NMFS believes these measures are 
sufficiently protective to avoid ship strike. These measures are 
described fully in the Mitigation section below, and include, but are 
not limited to: training for all vessel observers and captains, daily 
monitoring of North Atlantic right whale Sighting Advisory System, 
WhaleAlert app, and USCG Channel 16 for situational awareness regarding 
North Atlantic right whale presence in the survey area, communication 
protocols if whales are observed by any Orsted personnel, vessel 
operational protocol should any marine mammal be observed, and visual 
monitoring.
    The potential for impacts related to an overall increase in the 
amount of vessel traffic due to OSW development is separate from the 
aforementioned analysis of potential for vessel strike during Orsted's 
specified survey activities.
    Comment 4: RODA defers to the Marine Mammal Commission's previous 
comments on the matter of effects on marine mammals from offshore wind 
development, expressing that ``they are more knowledgeable on impacts 
of pile driving and acoustics to marine mammals''.
    NMFS' response: In response to RODA's deferral to the Marine Mammal 
Commission, the Commission, the agency charged with advising federal 
agencies on the impacts of human activity on marine mammals, has 
questioned in its previous public comment whether incidental take

[[Page 61578]]

authorizations are even necessary for surveys utilizing HRG equipment 
(i.e., take is unlikely to occur), and has subsequently informed NMFS 
that they would no longer be commenting on such actions, including 
Orsted's activity described herein. Additionally, comments related to 
pile driving and OSW construction are outside the scope of this IHA 
and, therefore, are not discussed.
    Comment 5: RODA defers to the September 9, 2020 letter submitted by 
seventeen Environmental NRGs and echoes their concerns.
    NMFS' response: NMFS refers RODA to the Federal Register notice 85 
FR 63508 (October 8, 2020) for previous responses to the Environmental 
NGOs' previous letter of which RODA references and defers expertise to.
    Comment 6: RODA expressed concern that negative impacts to local 
fishermen and coastal communities as a result of a potentially adverse 
impact to marine mammals (e.g., vessel strike resulting in death or 
severe injury) were not mentioned nor evaluated in ``the IHA request 
for this project''. RODA also emphasized concern about the lack of 
adequate analysis of individual and cumulative impacts to marine 
mammals, noting existing fishery restrictions as a result of other 
North Atlantic right whale protections.
    NMFS' response: Neither the MMPA nor our implementing regulations 
require NMFS to analyze impacts to other industries (e.g., fisheries) 
or coastal communities from issuance of an ITA. Nevertheless, as 
detailed in the proposed IHA notice and in our response to comment 3, 
NMFS has analyzed the potential for adverse impacts such as vessel 
strikes to marine mammals, including North Atlantic right whales, as a 
result of Orsted's planned site characterization survey activities and 
determined that no serious injury or mortality is anticipated. In fact, 
as discussed in the Negligible Impact Analysis and Determination 
section, later in this document, no greater than low-level behavioral 
harassment is expected for any affected species. For North Atlantic 
right whale in particular it is considered unlikely, as a result of the 
required precautionary shutdown zone (i.e., 500 m versus the estimated 
maximum Level B harassment zone of 141 m), that the authorized take 
would occur at all. Thus, NMFS would also not anticipate the impacts 
RODA raises as a result of issuing this IHA for site characterization 
survey activities to Orsted.
    In regards to cumulative impacts, neither the MMPA nor NMFS' 
codified implementing regulations call for consideration of other 
unrelated activities and their impacts on populations. The preamble for 
NMFS' implementing regulations (54 FR 40338; September 29, 1989) states 
in response to comments that the impacts from other past and ongoing 
anthropogenic activities are to be incorporated into the negligible 
impact analysis via their impacts on the baseline. Consistent with that 
direction, NMFS has factored into its negligible impact analysis the 
impacts of other past and ongoing anthropogenic activities via their 
impacts on the baseline, e.g., as reflected in the density/distribution 
and status of the species, population size and growth rate, and other 
relevant stressors. The 1989 final rule for the MMPA implementing 
regulations also addressed public comments regarding cumulative effects 
from future, unrelated activities. There NMFS stated that such effects 
are not considered in making findings under section 101(a)(5) 
concerning negligible impact. In this case, this IHA, as well as other 
IHAs currently in effect or proposed within the specified geographic 
region, are appropriately considered an unrelated activity relative to 
the others. The IHAs are unrelated in the sense that they are discrete 
actions under section 101(a)(5)(D), issued to discrete applicants.
    Section 101(a)(5)(D) of the MMPA requires NMFS to make a 
determination that the take incidental to a ``specified activity'' will 
have a negligible impact on the affected species or stocks of marine 
mammals. NMFS' implementing regulations require applicants to include 
in their request a detailed description of the specified activity or 
class of activities that can be expected to result in incidental taking 
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified 
activity'' for which incidental take coverage is being sought under 
section 101(a)(5)(D) is generally defined and described by the 
applicant. Here, Orsted was the applicant for the IHA, and we are 
responding to the specified activity as described in that application 
(and making the necessary findings on that basis).
    Through the response to public comments in the 1989 implementing 
regulations, NMFS also indicated (1) that we would consider cumulative 
effects that are reasonably foreseeable when preparing a NEPA analysis, 
and (2) that reasonably foreseeable cumulative effects would also be 
considered under section 7 of the Endangered Species Act (ESA) for ESA-
listed species, as appropriate. Accordingly, NMFS has written 
Environmental Assessments (EA) that addressed cumulative impacts 
related to substantially similar activities, in similar locations, 
e.g., the 2019 Avangrid EA for survey activities offshore North 
Carolina and Virginia; the 2017 Ocean Wind, LLC EA for site 
characterization surveys off New Jersey; and the 2018 Deepwater Wind EA 
for survey activities offshore Delaware, Massachusetts, and Rhode 
Island. Cumulative impacts regarding issuance of IHAs for site 
characterization survey activities such as those planned by Orsted have 
been adequately addressed under NEPA in prior environmental analyses 
that support NMFS' determination that this action is appropriately 
categorically excluded from further NEPA analysis. NMFS independently 
evaluated the use of a categorical exclusion (CE) for issuance of 
Orsted's IHA, which included consideration of extraordinary 
circumstances.
    Separately, the cumulative effects of substantially similar 
activities in the northwest Atlantic Ocean have been analyzed in the 
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion 
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New 
York, and New Jersey Wind Energy Areas (https://repository.library.noaa.gov/view/noaa/29291). Analyzed activities 
include those for which NMFS issued previous IHAs (82 FR 31562; July 7, 
2017, 83 FR 28808; June 21, 2018, 83 FR 36539; July 30, 2018; and 86 FR 
26465; May 10, 2021), which are similar to those planned by Orsted 
under this current IHA request. This Biological Opinion determined that 
NMFS' issuance of IHAs for site characterization survey activities 
associated with leasing, individually and cumulatively, are not likely 
to adversely affect listed marine mammals. NMFS notes that, while 
issuance of this IHA is covered under a different consultation, this 
BiOp remains valid.
    Comment 7: RODA expressed interest in understanding the outcome if 
the number of actual takes exceed the number authorized during 
construction of an offshore wind project (i.e., would the project be 
stopped mid-construction or operation), and how offshore wind 
developers will be held accountable for impacts to protected species 
such that impacts are not inadvertently assigned to fishermen, should 
they occur. Lastly, RODA maintains that the OSW industry must be 
accountable for incidental takes from construction and operations 
separately from the take authorizations for managed commercial fish 
stocks.

[[Page 61579]]

    NMFS' response: It is important to recognize that an IHA does not 
authorize the activity but authorizes take of marine mammals incidental 
to the activity. As described in condition 3(b) and (c) of the IHA, 
authorized take, by Level B harassment only, is limited to the species 
and numbers listed in Table 1 of the final IHA, and any taking 
exceeding the authorized amounts listed in Table 1 is prohibited and 
may result in the modification, suspension, or revocation of the IHA. 
As described in condition 4(f)(vii), shutdown of acoustic sources is 
required upon observation of either a species for which incidental take 
is not authorized or a species for which incidental take has been 
authorized but the authorized number of takes has been met, entering or 
within the Level B harassment zone as described in Table 2 of the IHA.
    It is unclear why RODA would be concerned that the OSW developers 
are responsible for their own impacts and ``the burdens of those are 
not also assigned to fishermen''. Fishing impacts generally center on 
entanglement in fishing gear, which is a very acute, visible, and 
severe impact. In contrast, the pathway by which impacts occur 
incidental to construction or site characterization survey activities, 
such as those planned by Orsted here, is primarily acoustic in nature. 
Regardless, NMFS reiterates that this IHA does not authorize take 
incidental to construction activities, but site characterization survey 
activities, and any take beyond that authorized would be in violation 
of the MMPA. It is BOEM's responsibility as the permitting agency to 
make decisions regarding ceasing Orsted's overall offshore wind 
development activities, not NMFS. If the case suggested by RODA does 
occur, NMFS would work with BOEM and Orsted to determine the most 
appropriate means by which to ensure compliance with the MMPA. The 
impacts of commercial fisheries on marine mammals and incidental take 
for said fishing activities are indeed managed separately from those of 
non-commercial fishing activities such as offshore wind site 
characterization surveys (MMPA section 118).
    Comment 8: RODA urges NMFS to use the best available science 
including the most comprehensive models for estimating marine mammal 
take and developing robust mitigation measures.
    NMFS' response: NMFS has carefully reviewed the best available 
scientific information in assessing impacts to marine mammals, and 
recognizes that the surveys have the potential to impact marine mammals 
through behavioral effects, stress responses, and auditory masking. To 
limit the potential severity of any possible behavioral disruptions, 
NMFS has prescribed a robust suite of mitigation measures, including 
extended distance shutdowns for North Atlantic right whale, that are 
expected to further reduce the duration and intensity of acoustic 
exposure. As described in the Mitigation section, NMFS has determined 
that the prescribed mitigation requirements are sufficient to effect 
the least practicable adverse impact on all affected species or stocks.

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. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, incorporated here by reference, instead of 
reprinting the information. Additional information regarding population 
trends and threats may be found in NMFS' Stock Assessment Reports 
(SARs; www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these 
species (e.g., physical and behavioral descriptions) may be found on 
NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
authorized for these activities, 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. PBR is defined by the MMPA as the maximum number of 
animals, not including natural mortalities, that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population (as described in NMFS' SARs). While no 
serious injury or mortality is anticipated or authorized here, PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS' U.S. 2021 U.S. Atlantic and Gulf of Mexico SARs. All values 
presented in Table 2 are the most recent available at the time of 
publication and are available in the 2021 SARs (Hayes et al., 2022).

                                     Table 2--Marine Mammal Species \6\ Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         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 Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
    North Atlantic right whale......  Eubalaena glacialis....  Western Atlantic.......  E/D, Y              368 (0; 364; 2019) \5\        0.7        7.7
Family Balaenopteridae (rorquals):
    Humpback whale..................  Megaptera novaeangliae.  Gulf of Maine..........  -/-, Y              1,396 (0; 1,380; 2016)         22      12.15
    Fin whale.......................  Balaenoptera physalus..  Western North Atlantic.  E/D, Y              6,802 (0.24; 5,573;            11        1.8
                                                                                                             2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia............  E/D, Y              6,292 (1.02; 3,098;           6.2        0.8
                                                                                                             2016).
    Minke whale.....................  Balaenoptera             Canadian East Coastal..  -/-, N              21,968 (0.31; 17,002;         170       10.6
                                       acutorostrata.                                                        2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic.........  E/D, Y              4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).

[[Page 61580]]

 
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic.  -/-, N              39,215 (0.3; 30,627;          306         29
                                                                                                             2016).
    Striped dolphin.................  Stenella coeruleoalba..  Western North Atlantic.  -, -, N             67,036 (0.29, 52,939,         529          0
                                                                                                             2016).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic.  -/-, N              93,233 (0.71; 54,443;         544         27
                                                                                                             2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -/-, N              62,851 (0.23; 51,914;         519         28
                                                                Offshore.                                    2016).
    Short-beaked Common dolphin.....  Delphinus delphis......  Western North Atlantic.  -/-, N              172,974(0.21, 145,216,      1,452        390
                                                                                                             2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic.  -/-, N              39,921 (0.27; 32,032;         320          0
                                                                                                             2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic   -/-, N              35,215 (0.19; 30,051;         301         34
                                                                Sock.                                        2016).
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-, N              95,543 (0.31; 74,034;         851        164
                                                                Fundy.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal.........................  Phoca vitulina.........  Western North Atlantic.  -/-, N              61,336 (0.08; 57,637;       1,729        339
                                                                                                             2018).
Gray seal \4\.......................  Halichoerus grypus.....  Western North Atlantic.  -/-, N              27,300 (0.22; 22,785;       1,389      4,453
                                                                                                             2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV
  is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
  approximately 451,431. The annual M/SI value given is for the total stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now
  below 350 animals (https://www.fisheries.noaa.gov/species/north-atlantic-right-whale).
\6\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)).

    A detailed description of the species likely to be affected by 
Orsted's activities, including information regarding population trends, 
threats, and local occurrence, was provided in the Federal Register 
notice for the proposed IHA (87 FR 52515; August 26, 2022); since that 
time, we are not aware of any changes in the status of these species 
and stocks; therefore, detailed descriptions are not provided here. 
Please refer to that Federal Register notice for these descriptions. 
Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

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. Not all marine mammal species have equal 
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and 
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. 
(2007, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). 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           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).

[[Page 61581]]

 
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; 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 planned 
survey activities. Please refer to Table 2. Of the cetacean species 
that may be present, five are classified as low-frequency cetaceans 
(i.e., all mysticete species), eight are classified as mid-frequency 
cetaceans (i.e., all delphinid species and the sperm whale), and one is 
classified as high-frequency cetaceans (i.e., harbor porpoise and Kogia 
spp.).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the deployed acoustic sources 
have the potential to result in behavioral harassment of marine mammals 
in the vicinity of the study area. The Federal Register notice for the 
proposed IHA (87 FR 52515; August 26, 2022) included a discussion of 
the effects of anthropogenic noise on marine mammals and their habitat, 
therefore that information is not repeated here; please refer to the 
Federal Register notice (87 FR 52515; August 26, 2022) for that 
information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determinations.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to certain HRG sources. Based on the nature of 
the activity and the anticipated effectiveness of the mitigation 
measures (i.e., shutdown measures, vessel strike avoidance procedures) 
discussed in detail below in the Mitigation section, Level A harassment 
is neither anticipated nor authorized.
    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
authorized take numbers are estimated.
    For acoustic impacts, generally speaking, we estimate take by 
considering: (1) acoustic thresholds above which NMFS believes the best 
available science indicates marine mammals will be behaviorally 
harassed or incur some degree of permanent hearing impairment; (2) the 
area or volume of water that will be ensonified above these levels in a 
day; (3) the density or occurrence of marine mammals within these 
ensonified areas; and, (4) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential 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 authorized take estimates.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur PTS of some degree (equated to Level A 
harassment.
    Level B Harassment--Though significantly driven by received level, 
the onset of behavioral disturbance from anthropogenic noise exposure 
is also informed to varying degrees by other factors related to the 
source or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (re 1 [mu]Pa) 
for continuous (e.g., vibratory pile-driving, drilling) and above RMS 
SPL 160 dB re 1 [mu]Pa for non-explosive impulsive (e.g., seismic 
airguns) or intermittent (e.g., scientific sonar) sources.
    Level A harassment--NMFS' Technical Guidance for Assessing the 
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) 
(Technical Guidance, 2018) identifies dual criteria to assess auditory 
injury (Level A harassment) to five different marine mammal groups 
(based on hearing sensitivity) as a result of exposure to noise from 
two different types of sources (impulsive or non-impulsive).
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are

[[Page 61582]]

described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    Orsted's activity includes the use of impulsive (i.e., boomers and 
sparkers) and non-impulsive (i.e., CHIRP SBPs) sources. However, as 
discussed above, NMFS has concluded that Level A harassment is not a 
reasonably likely outcome for marine mammals exposed to noise from the 
sources planned for use here, and the potential for Level A harassment 
is not evaluated further in this document. Please see Orsted's 
application (Section 1.4) for a quantitative Level A exposure analysis 
exercise. The results indicated that maximum estimated distances to 
Level A harassment isopleths were less than 3 m for all sources and 
hearing groups, with the exception of an estimated 18.9 m and 11.4 m 
distance to the Level A harassment isopleth for high-frequency 
cetaceans (i.e., harbor porpoises) during use of the GeoPulse 5430 and 
TB CHIRP III, respectively (see Table 2 in the Federal Register notice 
for the proposed IHA for source characteristics; 87 FR 52515; August 
26, 2022). Orsted did not request authorization of take by Level A 
harassment and no take by Level A harassment is authorized by NMFS.

 Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
------------------------------------------------------------------------
                                     PTS onset thresholds *  (received
                                                  level)
          Hearing group          ---------------------------------------
                                       Impulsive         Non-impulsive
------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Cell 1: Lp,0-       Cell 2:
                                   pk,flat: 219 dB;    LE,p,LF,24h: 199
                                   LE,p,LF,24h: 183    dB.
                                   dB.
Mid-Frequency (MF) Cetaceans....  Cell 3: Lp,0-       Cell 4:
                                   pk,flat: 230 dB;    LE,p,MF,24h: 198
                                   LE,p,MF,24h: 185    dB.
                                   dB.
High-Frequency (HF) Cetaceans...  Cell 5: Lp,0-       Cell 6:
                                   pk,flat: 202 dB;    LE,p,HF,24h: 173
                                   LE,p,HF,24h: 155    dB.
                                   dB.
Phocid Pinnipeds (PW)             Cell 7: Lp,0-       Cell 8:
 (Underwater).                     pk.flat: 218 dB;    LE,p,PW,24h: 201
                                   LE,p,PW,24h: 185    dB.
                                   dB.
Otariid Pinnipeds (OW)            Cell 9: Lp,0-       Cell 10:
 (Underwater).                     pk,flat: 232 dB;    LE,p,OW,24h: 219
                                   LE,p,OW,24h: 203    dB.
                                   dB.
------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in
  the largest isopleth for calculating PTS onset. If a non-impulsive
  sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds are
  recommended for consideration. Note: Peak sound pressure level (Lp,0-
  pk) has a reference value of 1 [mu]Pa, and weighted cumulative sound
  exposure level (LE,p) has a reference value of 1[mu]Pa\2\s. In this
  Table, thresholds are abbreviated to be more reflective of
  International Organization for Standardization standards (ISO 2017).
  The subscript ``flat'' is being included to indicate peak sound
  pressure are flat weighted or unweighted within the generalized
  hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript
  associated with cumulative sound exposure level thresholds indicates
  the designated marine mammal auditory weighting function (LF, MF, and
  HF cetaceans, and PW and OW pinnipeds) and that the recommended
  accumulation period is 24 hours. The weighted cumulative sound
  exposure level thresholds could be exceeded in a multitude of ways
  (i.e., varying exposure levels and durations, duty cycle). When
  possible, it is valuable for action proponents to indicate the
  conditions under which these thresholds will be exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including 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 use during the 
survey, to estimate the maximum ensonified area over a 24-hr period 
also referred to as the harassment area (Table 5). Potential takes by 
Level B harassment are estimated within the ensonified area (i.e., 
harassment area) as an SPL exceeding 160 dB re 1 [mu]Pa for impulsive 
sources (e.g., sparkers, boomers) within an average day of activity.
    The harassment zone, also known as the Zone of Influence (ZOI), is 
a representation of the maximum extent of the ensonified area around a 
sound source over a 24-hr period. The ZOI was calculated for mobile 
sound sources per the following formula:

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

Where r is the linear distance from the source to the isopleth for the 
Level B harassment threshold.

    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 knots (kn) (2.1 m/s) and 
only for periods during which equipment <180 kHz is in operation. A 
vessel traveling 4 kn (2.1 m/s) can cover approximately 110 km per day; 
however, based on data collected since 2017, 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 20 km per day; however, to maintain the 
potential for 24-hr surveys, the corresponding Level B harassment zones 
provided in Table 5 were calculated for each source based on the Level 
B threshold distances within a 24-hour (30 km) operational period.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG equipment and, therefore, recommends that source levels 
provided by Crocker and Fratantonio (2016) be incorporated in the 
method described above to estimate isopleth distances to harassment 
thresholds. In cases, when the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends that either the source levels provided by the manufacturer 
be used, or, in instances where source levels provided by the 
manufacturer are unavailable or unreliable, a proxy from Crocker and 
Fratantonio (2016) be used instead. Table 2 in the Federal Register 
notice for the proposed IHA (87 FR 52515; August 26, 2022) shows the 
HRG equipment types that may be used during the planned surveys and the 
source levels associated with those HRG equipment types.
    Based upon modeling results, of the HRG survey equipment planned 
for use by Orsted that has the potential to result in Level B 
harassment of marine mammals, the Applied Acoustics Dura-Spark UHD and 
GeoMarine Geo-Source sparkers would produce the largest Level B 
harassment isopleth (141 m) or ZOI. Estimated distances to Level B 
harassment isopleths for all sources evaluated here, including the 
sparkers, are provided in Table 5. Although Orsted does not expect to 
use sparker

[[Page 61583]]

sources on all planned survey days, Orsted assumes for purposes of 
analysis that the sparker would be used on all survey days. This is a 
conservative approach, as the actual sources used on individual survey 
days may produce smaller harassment distances.

           Table 5--Distance to Level B Harassment Thresholds
                              [160 dB rms]
------------------------------------------------------------------------
                                                            Distance to
                                                              Level B
                         Source                             harassment
                                                          threshold  (m)
------------------------------------------------------------------------
          Non-impulsive, non-parametric, shallow SBP (CHIRPs):
------------------------------------------------------------------------
    ET 216 CHIRP........................................              12
    ET 424 CHIRP........................................               4
    ET 512i CHIRP.......................................               6
    GeoPulse 5430.......................................              29
    TB CHIRP III........................................              54
    Pangeo SBI..........................................              22
------------------------------------------------------------------------
              Impulsive, medium SBP (Boomers and Sparkers):
------------------------------------------------------------------------
    AA Triple plate S-Boom (700/1,000 J)................              76
    AA, Dura-spark UHD Sparkers.........................             141
    GeoMarine Sparkers..................................             141
------------------------------------------------------------------------
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.

Marine Mammal Occurrence

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information that 
will inform the take calculations.
    Habitat based density models produced by the Duke University Marine 
Geospatial Ecology Laboratory (Roberts et al., 2016, 2022) represent 
the best available information regarding marine mammal densities in the 
project area. The density data presented by Roberts et al. (2016, 2022) 
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 project area (animals/
km\2\) were obtained using the most recent model results for all taxa 
(Roberts 2022). 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 (2022) were mapped 
using a geographic information system (GIS). Density grid cells that 
included any portion of the project area were selected for all survey 
months (see Figure 3 of Orsted's application). Given the variability in 
level of effort between the Lease Areas and the ECR area, densities 
were separated for the three Lease Areas (OCS-A 0486, 0487, and 0500) 
and the ECR area. The densities for each species as reported by Roberts 
et al. (2022) for each of the Lease Areas and ECR were averaged by 
month; those values were then used to calculate the mean annual density 
for each species within the project area. Estimated mean monthly and 
annual densities (animals per km\2\) of all marine mammal species that 
may be taken by the survey are shown in Tables 8-11 of Orsted's 
application. Please see Table 6 for density values used in the exposure 
estimation process.
    Given their size and behavior when in the water, seals are 
difficult to identify during shipboard visual surveys and limited 
information is currently available on their distribution. Therefore, 
data used to establish the density estimates from Roberts et al. (2022) 
are based on information for all seal species that may occur in the 
Western North Atlantic (i.e., harbor, gray, hooded, harp). However, 
only the harbor seal and gray seal are reasonably expected to occur in 
the project area, and the densities were split evenly between both 
species.
    Long- and short-finned pilot whales are also difficult to 
distinguish during shipboard surveys so individual habitat models were 
not able to be developed for these species. As only long-finned pilot 
whales are expected to occur within the study area, pilot whale 
densities within the study area were attributed to this species.
    For bottlenose dolphin densities, Roberts (2022) does not 
differentiate by stock. As previously discussed, only the Western North 
Atlantic offshore stock is expected to occur in the project area. Thus, 
all bottlenose dolphin density estimates within the project area were 
attributed to the offshore stock.

                   Table 6--Average Annual Marine Mammal Density Estimates Across Survey Sites
----------------------------------------------------------------------------------------------------------------
                                                                  Average annual density (km\2\)
                     Species                     ---------------------------------------------------------------
                                                    OCS-A 0486      OCS-A 0487      OCS-A 0500          ECR
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans:
    Fin whale...................................          0.0013          0.0021          0.0023          0.0015
    Sei whale...................................          0.0000          0.0001          0.0001          0.0000
    Minke whale.................................          0.0005          0.0008          0.0009          0.0005
    Humpback whale..............................          0.0012          0.0013          0.0015          0.0006
    North Atlantic right whale..................          0.0040          0.0020          0.0034          0.0008
Mid-frequency Cetaceans:
    Sperm whale.................................          0.0001          0.0001          0.0001          0.0001
    Atlantic white sided dolphin................          0.0092          0.0234          0.0367          0.0163
    Atlantic spotted dolphin....................          0.0001          0.0003          0.0004          0.0003
    Common bottlenose dolphin...................          0.0151          0.0078          0.0097          0.0266
    Long-finned pilot whale.....................          0.0020          0.0074          0.0090          0.0043
    Risso's dolphin.............................               0          0.0001          0.0001          0.0001
    Common dolphin..............................          0.0457          0.0924          0.0945          0.0562
    Striped dolphin.............................          0.0000          0.0000          0.0000          0.0000
High-frequency Cetaceans:
    Harbor porpoise.............................          0.0335          0.0399          0.0384          0.0337

[[Page 61584]]

 
Pinnipeds in-water \1\:
    Gray seal...................................          0.0104          0.0110          0.0124          0.0182
    Harbor seal.................................          0.0104          0.0110          0.0124          0.0182
----------------------------------------------------------------------------------------------------------------
\1\ Seal species are not separated in the Roberts (2022) data therefore densities were evenly split between the
  two species expected to occur in the project area.

Take Estimation

    Here we describe how the information provided above is synthesized 
to produce a quantitative estimate of the take that is reasonably 
likely to occur.
    Level B exposures were estimated by multiplying the average annual 
density of each species within the project area (Table 6) by the 
largest ZOI that was estimated to be ensonified to an SPL exceeding 160 
dB re 1 [micro]Pa (141m; Table 5). That result was then multiplied by 
the number of survey days in that Lease Area or ECR (Table 1), and 
rounded to the nearest whole number to arrive at estimated take. This 
final number equals the instances of take for the entire operational 
period. It was assumed the sparker systems were operating all 400 
survey days as it is the sound source expected to produce the largest 
harassment zone. A summary of this method is illustrated in the 
following formula with the resulting authorized take of marine mammals 
is shown below in Table 7:

Estimated take = species density x ZOI x # of survey days

                              Table 7--Total Estimated and Authorized Take Numbers
                                          [By Level B harassment only]
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated      Authorized      Max percent
                     Species                         Abundance     Level B takes   Level B takes    population
----------------------------------------------------------------------------------------------------------------
Low-frequency Cetaceans:
    Fin whale...................................           6,802              14              14            0.21
    Sei whale...................................           6,292               0               3            0.05
    Minke whale.................................          21,968               6              13            0.06
    Humpback whale..............................           1,396               8              34            2.44
    North Atlantic right whale..................             368              17              17            4.62
Mid-frequency Cetaceans
    Sperm whale.................................           4,349               0               2            0.05
    Atlantic white-sided dolphin:...............          93,233             210             210            0.23
    Atlantic spotted dolphin....................          39,921               3              29            0.07
    Common bottlenose dolphin...................          62,851             139             139            0.22
    Pilot whale.................................          39,215              17              17            0.13
    Risso's dolphin.............................          35,215               1              30            0.09
    Common dolphin..............................         172,974             601           6,000            3.47
    Striped dolphin.............................          67,036               0              20            0.03
High-frequency Cetaceans:
    Harbor porpoise.............................          95,543             287             287            0.30
Pinnipeds:
    Seals
        Gray seal...............................          27,300             118             118            0.43
        Harbor seal.............................          61,336             118             118            0.19
----------------------------------------------------------------------------------------------------------------

    Additional data regarding average group sizes from survey effort in 
the region was considered to ensure adequate take estimates are 
evaluated. Take estimates for several species were adjusted based upon 
observed group sizes in the area. The adjusted take estimates for these 
species are indicated in Table 7. These calculated take estimates were 
adjusted for these species as follows:
     Sei whale: Although no takes were estimated, prior 
Protected Species Observer (PSO) monitoring documented the presence of 
sei whales in the area. One take was requested based on the most common 
group size reported in Kenney and Vigness-Raposa (2010);
     Minke and humpback whales: Requested takes were increased 
to the number recorded within 500 m of an active source based on draft 
PSO data (see Table 13 in the application);
     Sperm whale: No takes were estimated but based on their 
occurrence in PSO data, 1 group of 2 (Barkaszi and Kelly, 2019) was 
added to the requested takes;
     Atlantic spotted dolphin: Requested takes were increased 
to the average number of dolphins in a group reported in Palka et al. 
(2017, 2021);
     Risso's dolphin: Only one take was estimated but based on 
their occurrence in PSO data, 1 group of 30 (Kenney and Vigness-Raposa, 
2010) was added to the requested takes.
     Common dolphin: Requested takes were increased to 6,000. 
This is based on the average group size of 15 from the PSO data 
(calculated by dividing the total number of individuals [14,250] by the 
total number of detections [927] in Table 13 of the application) 
multiplied by the planned number of survey days (400) in Table 1.
     Striped dolphin: No takes were estimated but based on 
their occurrence in PSO data, one group of 20 dolphins

[[Page 61585]]

(Kenney and Vigness-Raposa, 2010) was added to the requested takes.
    PSO data for adjusting take estimates of minke whales, humpback 
whales, common bottlenose dolphins, and common dolphins was derived 
from draft PSO observer reports from surveys conducted in the project 
lease areas and ECR from 2020-2021, as shown in Table 13 of Orsted's 
application.

Mitigation

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

Mitigation for Marine Mammals and Their Habitat

    NMFS has determined that the following mitigation measures be 
implemented during Orsted's marine site characterization surveys. 
Pursuant to section 7 of the ESA, Orsted will also be required to 
adhere to relevant Project Design Criteria (PDC) of the NMFS' Greater 
Atlantic Regional Fisheries Office (GARFO) programmatic consultation 
(specifically PDCs 4, 5, and 7) regarding geophysical surveys along the 
U.S. Atlantic coast (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 Shutdown Zones

    Marine mammal shutdown zones will be established around impulsive 
HRG survey equipment (<180 kHz; e.g., sparkers and boomers) for all 
marine mammals, and around impulsive HRG survey equipment and non-
impulsive, non-parametric sub-bottom profilers (e.g., CHIRPs) for North 
Atlantic right whales. Shutdown zones will be monitored by protected 
species observers (PSOs) based upon the radial distance from the 
acoustic source rather than being based around the vessel itself. An 
immediate shutdown of impulsive HRG survey equipment will be required 
if a whale is sighted at or within the corresponding marine mammal 
shutdown zones to minimize noise impacts on the animals. If a shutdown 
is required, a PSO will notify the survey crew immediately. Vessel 
operators and crews will comply immediately with any call for shutdown. 
The shutdown zone may or may not encompass the Level B harassment zone. 
Shutdown zone distances are as follows:
     A 500-meter (m) Shutdown Zone for North Atlantic right 
whales for use of impulsive acoustic sources (e.g., boomers and/or 
sparkers) and non-impulsive, non-parametric sub-bottom profilers; and
     A 100-m shutdown zone for use of impulsive acoustic 
sources for all other marine mammals, with the exception of delphinids 
belonging to the Family Delphinidae and one of the following genera: 
Delphinus, Lagenorhynchus, Stenella, or Tursiops, and pinnipeds.
    Shutdown will remain in effect until the minimum separation 
distances (detailed above) between the animal and noise source are re-
established. If a marine mammal enters the respective shutdown zone 
during a shutdown period, the equipment may not restart until that 
animal is confirmed outside the clearance zone as stated in the pre-
start clearance procedures. 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 will be established at the following 
distances around the HRG survey equipment and monitored by PSOs:
     500 m for all ESA-listed marine mammals;
     100 m for all other whales; and
     50 m for dolphins and porpoises.
    Orsted will 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 clearance zone during the pre-start 
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). 
Monitoring will be conducted throughout all pre-clearance and shutdown 
zones as well as all visible waters surrounding the sound sources and 
the vessel. All marine mammals detected will be recorded as described 
in the Monitoring and Reporting section.

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 will 
be used at the beginning of HRG survey activities in order to provide 
additional protection to marine mammals near the project 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.
    The ramp-up procedure will not be initiated (i.e., equipment will 
not be started) during periods of inclement conditions when the marine 
mammal pre-start clearance zone cannot be adequately monitored by the 
PSOs for a 30 minute period using the appropriate visual technology. If 
any marine mammal enters the clearance zone, ramp-up will not be 
initiated until the animal is confirmed outside the marine mammal 
clearance zone, or until the appropriate time (30 minutes for whales, 
15 minutes for dolphins, porpoises, and seals) has elapsed since the 
last sighting of the animal in the clearance zone.

[[Page 61586]]

    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;
    [cir] 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;
    [cir] Members of the monitoring team will consult NMFS North 
Atlantic right whale reporting system and Whale Alert, as able, for the 
presence of North Atlantic right whales throughout survey operations, 
and for the establishment of a DMA. If NMFS should establish a DMA in 
the project area during the survey, the vessels will abide by speed 
restrictions in the DMA;
    [cir] 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 (5.1 m/s) or less at all times;
    [cir] All vessels must reduce their speed to 10 kn (5.1 m/s) or 
less when mother/calf pairs, pods, or large assemblages of any species 
of cetaceans is observed near a vessel;
    [cir] All vessels must maintain a minimum separation distance of 
500 m from right whales and other ESA-listed large whales;
    [cir] 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;
    [cir] 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 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, NMFS has determined that the mitigation 
measures provide the means of effecting the least practicable impact on 
the affected species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

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

Monitoring Measures

    Visual monitoring will be performed by qualified, NMFS-approved 
PSOs, the resumes of whom will be provided to NMFS for review and 
approval prior to the start of survey activities. Orsted will 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

[[Page 61587]]

(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 shutdown and pre-clearance zones, during all HRG 
survey operations. PSOs will visually monitor and identify marine 
mammals, including those approaching or entering the established 
shutdown and pre-clearance 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) will ensure 360 degree visual coverage around 
the vessel from the most appropriate observation posts and will 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 will 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 will be used. Position data will 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 will 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 will be relayed to 
the PSO team. Data on all PSO observations will be recorded based on 
standard PSO collection requirements. This will 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 monitoring requirements, see Condition 5 of the IHA.

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:
    a. PSO names and affiliations;
    b. Dates of departures and returns to port with port names;
    c. Dates and times (Greenwich Mean Time) of survey effort and times 
corresponding with PSO effort;
    d. Vessel location (latitude/longitude) when survey effort begins 
and ends; vessel location at beginning and end of visual PSO duty 
shifts;
    e. Vessel heading and speed at beginning and end of visual PSO duty 
shifts and upon any line change;
    f. 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;
    g. 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
    h. 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:
    a. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    b. PSO who sighted the animal;
    c. Time of sighting;
    d. Vessel location at time of sighting;
    e. Water depth;
    f. Direction of vessel's travel (compass direction);
    g. Direction of animal's travel relative to the vessel;
    h. Pace of the animal;
    i. Estimated distance to the animal and its heading relative to 
vessel at initial sighting;
    j. 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;
    k. Estimated number of animals (high/low/best);
    l. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    m. 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);
    n. 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);
    o. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source;

[[Page 61588]]

    p. Platform activity at time of sighting (e.g., deploying, 
recovering, testing, data acquisition, other); and
    q. 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:
    a. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    d. Observed behaviors of the animal(s), if alive;
    e. If available, photographs or video footage of the animal(s); and
    f. 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 will 
report the incident to NMFS OPR and the NMFS New/England/Mid-Atlantic 
Stranding Coordinator as soon as feasible. The report will include the 
following information:
    a. Time, date, and location (latitude/longitude) of the incident;
    b. Species identification (if known) or description of the 
animal(s) involved;
    c. Vessel's speed during and leading up to the incident;
    d. Vessel's course/heading and what operations were being conducted 
(if applicable);
    e. Status of all sound sources in use;
    f. 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;
    g. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    h. Estimated size and length of animal that was struck;
    i. Description of the behavior of the marine mammal immediately 
preceding and following the strike;
    j. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    k. 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
    l. To the extent practicable, photographs or video footage of the 
animal(s).

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), 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' 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 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, the discussion of our analysis applies to all 
the species listed in Table 2, given that the anticipated effects of 
this activity on these different marine mammal stocks are expected to 
be similar. 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 will occur as a result from HRG surveys, 
even in the absence of mitigation, and no serious injury or mortality 
is authorized. As discussed in the Potential Effects of Specified 
Activities on Marine Mammals and their Habitat section in the Federal 
Register notice for the proposed IHA (87 FR 52515; August 26, 2022), 
non-auditory physical effects and vessel strike are not expected to 
occur. NMFS expects that all potential takes will 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). 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 project 
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 project area. 
Several harbor and gray seal haul out sites have been identified on 
Block Island, Great Gull Island, and Fishers Island as wells as along 
Narragansett and Nantucket Sounds. As the acoustic footprint of the HRG 
activities is relatively small, hauled seals are not expected to be 
impacted by these activities. In addition, cable landfall sites have 
yet to be determined and may

[[Page 61589]]

not be in the vicinity of haul out sites. The ECR area encompasses a 
feeding BIA for fin whales east of Montauk Point, NY that is active 
from March through October (LaBrecque et al., 2015). The fin whale 
feeding BIA is extensive and sufficiently large (2,933 km\2\), and the 
acoustic footprint of the survey activities is sufficiently small 
(project area) that feeding opportunities for fin whales will not be 
reduced appreciably. Given the relatively small size of the ensonified 
area, it is unlikely that prey availability will be adversely affected 
by HRG survey operations. In addition, feeding success is not likely to 
be significantly affected as minimal impacts to prey species are 
expected, for reasons as described above in the Potential Effects of 
Specified Activities on Marine Mammals and their Habitat section in the 
Federal Register notice of the proposed IHA (87 FR 52515; August 26, 
2022).

North Atlantic Right Whale

    The status of the North Atlantic right whale population is of 
heightened concern and therefore, merits additional analysis. As noted 
previously, elevated North Atlantic right whale mortalities began in 
June 2017 and there is an active UME. Overall, preliminary findings 
support human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of right whales. 
The project area overlaps with a migratory corridor BIA for North 
Atlantic right whales (effective March-April; November-December) that 
extends from Massachusetts to Florida and, off the coast of NY and RI, 
from the coast to beyond the shelf break (LaBrecque et al., 2015). 
Right whale migration is not expected to be impacted by the survey 
activities due to the very small size of the project area relative to 
the spatial extent of the available migratory habitat in the BIA. The 
project area also overlaps with the Block Island seasonal management 
area (SMA), active from November 1 to April 30. North Atlantic right 
whales may be feeding or migrating within the SMA. Required vessel 
strike avoidance measures and following the speed restrictions of the 
SMA will decrease the risk of ship strike during North Atlantic right 
whale migration; no ship strike is expected to occur during Orsted's 
activities. For reasons as described above, minimal impacts are 
expected to prey availability and feeding success. Additionally, HRG 
survey operations are required to maintain a 500 distance and shutdown 
if a North Atlantic right whale is sighted at or within 500 m. 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. Therefore only very limited take 
by Level B harassment of North Atlantic right whale has been authorized 
by NMFS. As noted previously, Level A harassment is not expected, nor 
authorized, due to the small PTS zones associated with HRG equipment 
types planned for use. NMFS does not anticipate North Atlantic right 
whale takes that result from the survey activities will impact annual 
rates of recruitment or survival. Thus, any takes that occur will 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 Orsted's project 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.
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in Table 2, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular, they will provide animals the opportunity to 
move away from the sound source before HRG survey equipment reaches 
full energy, thus preventing them from being exposed to more severe 
Level B harassment. No Level A harassment is anticipated, even in the 
absence of mitigation measures, or authorized.
    NMFS expects that takes will 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 in the area (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 will only be exposed briefly to a small 
ensonified area that might result in take. Required mitigation 
measures, such as shutdown zones and ramp up, will further reduce 
exposure to sound that could result in more severe behavioral 
harassment.
    In summary and as described above, the following factors support 
our determination that the impacts resulting from this activity are not 
expected to adversely affect any of the species or stocks through 
effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     No Level A harassment (PTS) is anticipated, even in the 
absence of mitigation measures, or authorized;
     Foraging success is not likely to be significantly 
impacted as effects on species that serve as prey species for marine 
mammals from the survey are expected to be minimal;
     The availability of alternate areas of similar habitat 
value for marine mammals to temporarily vacate the survey area during 
the planned survey to avoid exposure to sounds from the activity;
     Take is anticipated to be of Level B behavioral harassment 
only consisting of brief startling reactions and/or temporary avoidance 
of the survey area;
     While the project area is within areas noted as a 
migratory BIA and SMA for North Atlantic right whales, the activities 
will occur in such a comparatively small area such that any avoidance 
of the ensonified area due to activities will 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 mitigation measures, including visual monitoring and 
shutdowns, are expected to minimize potential impacts to marine 
mammals.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
survey activities will have a negligible impact on all affected marine 
mammal species or stocks.

[[Page 61590]]

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 has authorized is below one third of the 
estimated stock abundance for all species (in fact, take of individuals 
is less than 6 percent of the abundance of the affected stocks for 
these species, see Table 7). The figures presented in Table 7 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 will count them as 
separate takes if they cannot be individually identified.
    Based on the analysis contained herein of the planned survey 
activities (including the mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals will be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

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

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 has authorized 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 has determined that 
these activities fall within the scope of activities analyzed in 
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).

Authorization

    NMFS has issued an IHA to Orsted for potential harassment of small 
numbers of 16 marine mammal species incidental to HRG site 
characterization surveys off the coast of New York and Rhode Island, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are followed.

    Dated: October 6, 2022.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2022-22150 Filed 10-11-22; 8:45 am]
BILLING CODE 3510-22-P