Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the New York Bight, 13783-13801 [2023-04445]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 43 (Monday, March 6, 2023)]
[Notices]
[Pages 13783-13801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04445]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC784]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Marine Site Characterization 
Surveys in the New York Bight

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an Incidental Harassment Authorization (IHA) to 
Bluepoint Wind, LLC (BPW) to incidentally harass marine mammals during 
marine site characterization surveys in coastal waters off of New York 
and New Jersey in the New York Bight, specifically within the Bureau of 
Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for 
Renewable Energy Development on the Outer Continental Shelf (Lease) 
Area OCS-A 0537 and associated export cable route (ECR) area.

DATES: This Authorization is effective from March 1, 2023 through 
February 29, 2024.

[[Page 13784]]


FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new. 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 August 18, 2022, NMFS received a request from BPW for an IHA to 
take marine mammals incidental to marine site characterization surveys 
in coastal waters off of New York and New Jersey in the New York Bight, 
specifically within the BOEM Lease Area OCS-A 0537 and associated ECR 
area. Following NMFS' review of the application, the application was 
deemed adequate and complete on October 25, 2022. BPW's request is for 
take of small numbers of 15 species (16 stocks) of marine mammals by 
Level B harassment only. Neither BPW nor NMFS expect serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate. There are no changes from the proposed IHA to the final 
IHA.

Description of Activity

Overview

    BPW plans to conduct marine site characterization surveys, 
including high-resolution geophysical (HRG) surveys, in coastal waters 
off of New Jersey and New York in the New York Bight, specifically 
within the BOEM Lease Area OCS-A 0537 and associated ECR area.
    The planned marine site characterization surveys are designed to 
obtain data sufficient to meet BOEM guidelines for providing 
geophysical, geotechnical, and geohazard information for site 
assessment plan surveys and/or construction and operations plan 
development. The objective of the surveys is to support the site 
characterization, siting, and engineering design of offshore wind 
project facilities including wind turbine generators, offshore 
substations, and submarine cables within the Lease Area. At least two 
survey vessels will operate as part of the planned surveys with a 
maximum of two nearshore (<20 meters (m)) vessels and a maximum of two 
offshore (>=20 m) vessels operating concurrently. Underwater sound 
resulting from BPW's marine site characterization survey activities, 
specifically HRG surveys, have the potential to result in incidental 
take of marine mammals in the form of Level B harassment.

Dates and Duration

    The survey is planned to begin as early as March 1, 2023 and 
estimated to require 432 survey days across a maximum of two nearshore 
and two offshore vessels operating concurrently within a single year. A 
``survey day'' is defined as a 24-hour (hr) activity period in which 
active acoustic sound sources are used. It is expected that each vessel 
would cover approximately 170 kilometers (km) per day based on the 
applicant's expectations regarding data acquisition efficiency, and 
there is up to 23,191 km of track line of survey effort planned. The 
IHA would be effective for one year from the date of issuance.

Specific Geographic Region

    BPW's survey activities would occur in coastal waters off of New 
York and New Jersey in the New York Bight, specifically within Lease 
Area OCS-A 0537 and the ECR area (Figure 1). Water depths in the OCS 
Lease Area are between 50 m and 60 m. Water depths in the ECR area are 
between 5 m and 60 m.
BILLING CODE 3510-22-P

[[Page 13785]]

[GRAPHIC] [TIFF OMITTED] TN06MR23.009

BILLING CODE 3510-22-C

Figure 1. Survey Area

Detailed Description of Specified Activity

    BPW 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)); 
gradiometers that have no acoustic output; non-impulsive, parametric 
sub-bottom profilers (SBPs) with narrow beamwidth; and medium-
penetration sub-bottom profiling (SBP) equipment (e.g., boomers and 
sparkers) with operating frequencies below 180 kilohertz (kHz). No 
deep-penetration SBP surveys (e.g., airgun or bubble gun surveys) will 
be conducted.
    There are two possible options for BPW's surveys in the Lease area 
using a sparker system (Dual Geo-Spark 2000X). Under Option One, one 
Dual Geo-Spark 2000X would be used at a minimum of 30 m line spacing 
with tieline spacing of 500 m for a total survey distance of 9,923 km 
in the Lease Area. Under Option Two, up to four Dual Geo-Spark 2000X 
would be towed to conduct an Ultra High Resolution 3-dimensional 
(UHR3D) survey. The sparkers would be fired sequentially such that only 
one is fired at a time with 0.33 seconds between shots. The sparkers 
would be physically spaced 25 m apart for a total spread of 75 m. The 
tracklines would be similar to those for the single sparker; however, 
they would be spaced a minimum of 43.75 m apart with tielines spaced at 
500 m for a shorter total survey distance of 6,814 km. Since BPW may 
use either method, this analysis is based on the more impactful of the 
two options (Option 1), which has the larger total line-km.
    In the ECR area, either a boomer or sparker will be used. 
Regardless of which system is used, BPW plans to conduct the survey 
with a minimum of 30 m line spacing and tielines spaced at 500 m 
intervals in Federal waters through potential cable corridors and at a 
minimum of 15 m line spacing and tielines spaced at 500 m in State 
waters for a total of 13,268 km of combined tracklines and tielines.
    Further detail regarding the planned HRG surveys is provided in the 
Federal Register notice for the proposed IHA (88 FR 2325; January 13, 
2023). 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 additional, 
detailed description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to BPW was published in 
the Federal Register on January 13, 2023 (88 FR 2325). That notice 
described, in detail, BPW's planned activities, the marine mammal 
species that may be affected by the activities, and the

[[Page 13786]]

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. This proposed notice 
was available for a 30-day public comment period.
    NMFS received ten comment letters from private citizens. All of 
these expressed general opposition to issuance of the IHA or to the 
underlying associated activities. We reiterate here that NMFS' proposed 
actions concern only the authorization of marine mammal take incidental 
to the planned surveys--NMFS' authority under the MMPA does not extend 
to the surveys themselves, or to wind energy development more 
generally. Further, NMFS does not have discretion regarding issuance of 
requested incidental take authorizations pursuant to the MMPA, assuming 
(1) the total taking associated with a specified activity will have a 
negligible impact on the affected species or stock(s); (2) the total 
taking associated with a specified activity will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (not relevant here); (3) the total taking 
associated with a specified activity is small numbers of marine mammals 
of any species or stock; and (4) appropriate mitigation, monitoring, 
and reporting of such takings are set forth, including mitigation 
measures sufficient to meet the standard of least practicable adverse 
impact on the affected species or stocks. Many of these comments 
received request that NMFS not issue any of the IHAs and/or express 
disdain for wind energy development generally, but without providing 
information relevant to NMFS' decisions. We do not specifically address 
comments expressing general opposition to activities related to wind 
energy development.
    Five of these letters provided general concerns regarding recent 
whale stranding events on the Atlantic Coast, including speculation 
that the strandings may be related to wind energy development-related 
activities. However, the commenters did not provide any specific 
information supporting these concerns. Therefore, we refer those 
commenters to the analyses herein, and do not specifically address 
these comments.
    Additionally, NMFS received letters from two non-governmental 
organizations, Responsible Offshore Development Alliance (RODA) and 
Friends of Animals (FoA). All substantive comments, and NMFS' 
responses, are provided below, and all letters are available online at: 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new). Please 
review the letters 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.''
    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, BPW, 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 BPW'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 (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.
    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 BPW's specified activity under the MMPA.
    Comment 3: RODA expressed concerns with the high amount of 
increased vessel traffic associated with the Offshore Wind (OSW) 
projects throughout the region in areas transited or utilized by 
certain protected resources, as well as concern for vessel noise and 
increased risk for vessel strikes.
    Response: BPW did not request authorization for take incidental to 
vessel traffic during BPW'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. For this IHA, NMFS did not authorize 
any take of marine mammals incidental to vessel strike resulting from 
the survey. If BPW were to strike a marine mammal with a vessel, this 
would be an unauthorized take and be in violation of the MMPA. This 
gives BPW 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. BPW 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(l) in the IHA contains a suite 
of non-discretionary requirements pertaining to ship strike avoidance, 
including vessel operation protocols and monitoring. NMFS takes 
seriously the risk of vessel strike and has

[[Page 13787]]

prescribed measures sufficient to avoid the potential for ship strike 
to the extent practicable. NMFS has required these measures despite a 
very low likelihood of vessel strike; vessels associated with the 
survey activity will add a discountable amount of vessel traffic to the 
specific geographic region and, furthermore, vessels towing survey gear 
travel at very slow speeds (i.e., roughly 4-5 knots (kn) (7.41-9.26 km/
hour)).
    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 BPW 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 BPW 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 BPW'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''.
    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 
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 
BPW'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.
    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''. Private Citizens and RODA also emphasized concern 
about the alleged lack of adequate analysis of individual and 
cumulative impacts to marine mammals, RODA noting existing fishery 
restrictions as a result of other North Atlantic right whale 
protections.
    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 
BPW'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 BPW.
    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, BPW 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

[[Page 13788]]

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 BPW 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 BPW'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; 86 FR 
26465, May 10, 2021), which are similar to those planned by BPW 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.
    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(k)(v), 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.
    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 BPW 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 BPW's overall offshore wind 
development activities, not NMFS. If the case suggested by RODA does 
occur, NMFS would work with BOEM and BPW 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. Additionally, RODA 
encourages NMFS to evaluate the proposed IHA with the best available 
science.
    Response: NMFS utilizes the best available science when analyzing 
which species may be impacted by an applicant's proposed activities. 
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.
    NMFS considered the best available science regarding both recent 
habitat usage patterns for the study area and up-to-date seasonality 
information in the notice of the proposed IHA, including consideration 
of existing BIAs and densities provided by Roberts et al. (2021). 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.
    Lastly, as we stated in the notice of proposed IHA (88 FR 2325; 
January 13, 2023), any impacts to marine mammals are expected to be 
temporary and minor and, given the relative size of the survey area. 
Because of this, and in context of the minor, low-level nature of the 
impacts expected to result from the planned survey, such impacts are 
not expected to result in disruption to biologically important 
behaviors.
    Comment 10: RODA and FOA insist that NMFS must consider whether 
authorization of additional OSW related activities should be allowed, 
given the recent whale strandings in the area. FOA and private citizens 
additionally urge NMFS to postpone any OSW activities until NMFS 
determines effects of all OSW activities on marine mammals in the 
region, and determines that the recent whale deaths are not related to 
OSW actions.
    Response: A moratorium or stop to additional OSW related activities 
due to the recent whale deaths is not within NMFS jurisdiction. BOEM is 
the agency with the authority to approve or disapprove a developer's 
Site Assessment Plan. NMFS authorizes take of marine mammals incidental 
to surveys but does not authorize the surveys. Therefore, while NMFS 
has the authority to modify, suspend, or revoke an IHA if the IHA 
holder fails to abide by the conditions prescribed therein (including, 
but not limited to, failure to comply with monitoring or reporting 
requirements), or if NMFS determines that (1) the authorized taking is 
having or is likely to have more than a negligible impact on the 
species or stocks of affected marine mammals, or (2) the prescribed 
measures are likely not or are not effecting the least practicable 
adverse impact on the affected species or stocks and their habitat, it 
is not within NMFS jurisdiction to impose a moratorium on offshore wind 
development or to require

[[Page 13789]]

surveys to cease on the basis of unsupported speculation.
    Currently, there are active ``Unexplained Mortality Events'' 
(UME's) for both humpback whales and North Atlantic right whales in the 
areas of the recent stranding's. These UME's were both declared in 
2017. See further discussion of this in the Negligible Impact Analysis 
and Determination section later in the notice.
    Additionally, marine site characterization surveys have an 
extremely low risk of whale related injury or death. As mentioned above 
in Comment 3, while NMFS acknowledges that vessel strikes can result in 
injury or mortality, we have analyzed the potential for vessel strike 
resulting from BPW's activity and have determined that based on the 
nature of the activity and the required mitigation measures specific to 
vessel strike avoidance included in the IHA, potential for vessel 
strike is so low as to be discountable.
    The required mitigation measures, all of which were included in the 
proposed IHA and are now required in the final IHA, include: A 
requirement that all vessel operators comply with 10 kn (18.5 km/hour) 
or less speed restrictions in any Seasonal Management Area (SMA), 
Dynamic Management Area (DMA) or Slow Zone while underway, and check 
daily for information regarding the establishment of mandatory or 
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and 
information regarding North Atlantic right whales sighting locations; a 
requirement that all vessels greater than or equal to 19.8 m in overall 
length operating from November 1 through April 30 operate at speeds of 
10 kn (18.5 km/hour) or less; a requirement that all vessel operators 
reduce vessel speed to 10 kn (18.5 km/hour) or less when any large 
whale, any mother/calf pairs, pods, or large assemblages of non-
delphinid cetaceans are observed near the vessel; a requirement that 
all survey vessels maintain a separation distance of 500 m or greater 
from any ESA-listed whales or other unidentified large marine mammals 
visible at the surface while underway; a requirement that, if underway, 
vessels must steer a course away from any sighted ESA-listed whale at 
10 kn (18.5 km/hour) or less until the 500 m minimum separation 
distance has been established; a requirement that, if an ESA-listed 
whale is sighted in a vessel's path, or within 500 m of an underway 
vessel, the underway vessel must reduce speed and shift the engine to 
neutral; a requirement that all vessels underway must maintain a 
minimum separation distance of 100 m from all non-ESA-listed baleen 
whales; and a requirement that all vessels underway must, to the 
maximum extent practicable, attempt to maintain a minimum separation 
distance of 50 m from all other marine mammals, with an understanding 
that at times this may not be possible (e.g., for animals that approach 
the vessel). We have determined that the vessel strike avoidance 
measures in the IHA are sufficient to ensure the least practicable 
adverse impact on species or stocks and their habitat. Furthermore, no 
documented vessel strikes have occurred for any marine site 
characterization surveys which were issued IHAs from NMFS during the 
survey activities themselves or while transiting to and from survey 
sites.
    NMFS reiterates that use of the planned sources is not expected to 
have any potential to cause injury of any species even in the absence 
of mitigation. Consideration of the anticipated effectiveness of the 
mitigation measures (i.e., shutdown zones and shutdown measures) 
discussed below and in the Mitigation section of this notice further 
strengthens the conclusion that injury is not a reasonably anticipated 
outcome of the survey activity. Nevertheless, there are several 
shutdown requirements described in the Federal Register notice of the 
proposed IHA (88 FR 2325; January 13, 2023), and which are included in 
the final IHA, including the stipulation that geophysical survey 
equipment must be immediately shut down if any marine mammal is 
observed within or entering the relevant Shutdown Zone while 
geophysical survey equipment is operational. There is no exemption for 
the shutdown requirement for North Atlantic right whales and ESA-listed 
species.
    The best available science indicates that Level B harassment, or 
disruption of behavioral patterns, may occur. No mortality or serious 
injury is expected to occur as a result of the planned surveys, and 
there is no scientific evidence indicating that any marine mammal could 
experience these as a direct result of noise from geophysical survey 
activity. Authorization of mortality and serious injury may not occur 
via IHAs, only within Incidental Take Regulations (ITRs), and such 
authorization was neither requested nor proposed. NMFS notes that in 
its history of authorizing take of marine mammals, there has never been 
a report of any serious injuries or fatalities of a marine mammal 
related to the site characterization surveys.
    NMFS emphasizes that there is no credible scientific evidence 
available suggesting that mortality and/or serious injury is a 
potential outcome of the planned survey activity. We also refer to the 
GARFO 2021 Programmatic Consultation, which finds that these survey 
activities are in general not likely to adversely affect ESA-listed 
marine mammal species, i.e., GARFO's analysis conducted pursuant to the 
ESA finds that marine mammals are not likely to be taken at all (as 
that term is defined under the ESA), much less be taken by serious 
injury or mortality. That document is found here: 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.

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 1 lists all species or stocks for which take is expected and 
authorized for this activity, 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 or 
stocks 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

[[Page 13790]]

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' US Atlantic and Gulf of Mexico SARs. All values 
presented in Table 1 are the most recent available at the time of 
publication (including from the draft 2022 SARs) and are available 
online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                              Table 1--Species 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 Stock.  E/D, Y              338 (0; 332; 2020)....        0.7        8.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Family Balaenopteridae
--------------------------------------------------------------------------------------------------------------------------------------------------------
    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
                                                                Stock.                                       2016).
    Sei whale.......................  Balaenoptera borealis..  Nova Scotia Stock......  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.           Stock.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
    Sperm whale.....................  Physeter macrocephalus.  North Atlantic Stock...  E/D, Y              4,349 (0.28; 3,451;           3.9          0
                                                                                                             2016).
Family Delphinidae:
    Long-finned pilot whale.........  Globicephala melas.....  Western North Atlantic   -/-, N              39,215 (0.3; 30,627;          306         29
                                                                Stock.                                       2016).
    Atlantic white-sided dolphin....  Lagenorhynchus acutus..  Western North Atlantic   -/-, N              93,233 (0.71; 54,443;         544        227
                                                                Stock.                                       2016).
    Bottlenose dolphin..............  Tursiops truncatus.....  Western North Atlantic   -/-, N              62,851 (0.23; 51,914;         519         28
                                                                Offshore Stock.                              2016).
                                                               Northern Migratory       -/D, Y              6,639 (0.41; 4,759;            48  12.2-21.5
                                                                Coastal.                                     2016).
    Common dolphin..................  Delphinus delphis......  Western North Atlantic   -/-, N              172,974 (0.21,              1,452        390
                                                                Stock.                                       145,216, 2016).
    Atlantic spotted dolphin........  Stenella frontalis.....  Western North Atlantic   -/-, N              39,921 (0.27; 32,032;         320          0
                                                                Stock.                                       2016).
    Risso's dolphin.................  Grampus griseus........  Western North Atlantic   -/-, N              35,215 (0.19; 30,051;         301         34
                                                                Stock.                                       2016).
    Harbor porpoise.................  Phocoena phocoena......  Gulf of Maine/Bay of     -/-, N              95,543 (0.31; 74,034;         851        164
                                                                Fundy Stock.                                 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Harbor seal.....................  Phoca vitulina.........  Western North Atlantic   -/-, N              61,336 (0.08; 57,637;       1,729        339
                                                                Stock.                                       2018).
    Gray seal \4\...................  Halichoerus grypus.....  Western North Atlantic   -/-, N              27,300 (0.22; 22,785;       1,389      4,453
                                                                Stock.                                       2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 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 mortality and serious injury (M/SI) value given is for the total stock.

    A detailed description of the species likely to be affected by 
BPW's activities, including information regarding population trends, 
threats, and local occurrence, was provided in the Federal Register 
notice for the proposed IHA (88 FR 2325; January 13, 2023); 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)

[[Page 13791]]

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 2.

           Table 2--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

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 (88 FR 2325; January 13, 2023) 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 (88 FR 2325; January 13, 2023) for that 
information.

Estimated Take of Marine Mammals

    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 sound produced by the sparker or boomer. 
Based on the characteristics of the signals produced by the acoustic 
sources planned for use, 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 
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 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 (referenced 
to 1 micropascal (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. Generally speaking, Level B harassment take 
estimates based on these behavioral harassment thresholds are expected 
to include any likely takes by TTS as, in most cases, the likelihood of 
TTS occurs at

[[Page 13792]]

distances from the source less than those at which behavioral 
harassment is likely. TTS of a sufficient degree can manifest as 
behavioral harassment, as reduced hearing sensitivity and the potential 
reduced opportunities to detect important signals (conspecific 
communication, predators, prey) may result in changes in behavior 
patterns that would not otherwise occur.
    BPW's activities include the use of impulsive (i.e., boomer and 
sparker) sources, and therefore, the RMS SPL thresholds of 160 dB re 1 
[mu]Pa is applicable.
    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).
    The references, analysis, and methodology used in the development 
of the thresholds are described in NMFS' 2018 Technical Guidance, which 
may be accessed at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.
    BPW's activity includes the use of impulsive (i.e., boomer and 
sparker) sources. However, as discussed above, NMFS has concluded that 
Level A harassment is not a reasonably likely outcome for marine 
mammals exposed to noise through use of the sources proposed for use 
here, and the potential for Level A harassment is not evaluated further 
in this document. Please see BPW's application for details of a 
quantitative exposure analysis exercise, i.e., calculated Level A 
harassment isopleths and estimated Level A harassment exposures. BPW 
did not request authorization of take by Level A harassment, and no 
take by Level A harassment is proposed for authorization by NMFS.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that 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 estimating the 
extent of the Level B harassment isopleths associated with relevant HRG 
survey equipment (NMFS 2020). This methodology incorporates frequency 
and directionality (when relevant) to refine estimated ensonified 
zones. For acoustic sources that operate with different beamwidths, the 
maximum beamwidth was used, and the lowest frequency of the source was 
used when calculating the frequency-dependent absorption coefficient. 
The sparker planned for use by BPW are omnidirectional and, therefore, 
beamwidth does not factor into those calculations.
    NMFS considers the data provided by Crocker and Fratantonio (2016) 
to represent the best available information on source levels associated 
with HRG survey 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 where the source level for a specific type of HRG 
equipment is not provided in Crocker and Fratantonio (2016), NMFS 
recommends either the source levels provided by the manufacturer be 
used, or, in instances where source levels provided by the manufacturer 
are unavailable or unreliable, a proxy from Crocker and Fratantonio 
(2016) be used instead. Table 1 in the Federal Register notice for the 
proposed IHA (88 FR 2325; January 13, 2023), shows the HRG equipment 
type used during the planned surveys and the source levels associated 
with those HRG equipment types.
    BPW plans to use the Dual Geo-Spark 2000X (400 tip/800J). For all 
source configurations, the maximum power expected to be discharged from 
the sparker source is 800 J. However, Crocker and Fratantonio (2016) 
did not measure the Dual Geo-Spark or a source with an energy of 800 J. 
A similar alternative system, the Applied Acoustics Dura-spark with a 
400 tip, was measured by Crocker and Fratantonio (2016) with an input 
voltage of 500-2,000J, and these measurements were used as a proxy for 
the Dual Geo-Spark. Table 1 in the Federal Register notice for the 
proposed IHA (88 FR 2325; January 13, 2023), shows the source 
parameters associated with this proxy. Using the measured source level 
of 203 dB RMS of the proxy, results of modeling indicated that the 
sparker would produce a distance of 141 m to the Level B harassment 
isopleth. BPW additionally plans to use the Applied Acoustics S-Boom. 
Crocker and Fratantonio (2016) did measure the Applied Acoustics S-Boom 
and values were used for a dual plate 300 J source setting. Using the 
measured source level of 196 dB RMS of the proxy, results of modeling 
indicated that the boomer would produce a distance of 41 m to the Level 
B harassment isopleth.
    Results of modeling using the methodology described above indicated 
that, of the HRG survey equipment planned for use by BPW that has the 
potential to result in Level B harassment of marine mammals, the Dual 
Geo-Spark 2000X would produce the largest distance to the Level B 
harassment isopleth (141 m).

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; Roberts and 
Halpin, 2022) represent the best available information regarding marine 
mammal densities in the survey area. These density data incorporate 
aerial and shipboard line-transect survey data from NMFS and other 
organizations and incorporate data from numerous physiographic and 
dynamic oceanographic and biological covariates, and controls for the 
influence of sea state, group size, availability bias, and perception 
bias on the probability of making a sighting. These density models were 
originally developed for all cetacean taxa in the U.S. Atlantic 
(Roberts et al., 2016). In subsequent years, certain models have been 
updated based on additional data as well as certain methodological 
improvements. More information is available online at https://seamap.env.duke.edu/models/Duke/EC/. Marine mammal density estimates in 
the survey area (animals/km\2\) were obtained using the most recent 
model results for all taxa.
    For the exposure analysis, density data from Roberts and Halpin 
(2022) were mapped using a geographic information system (GIS). For the 
survey area, the monthly densities of each species as reported by 
Roberts and Halpin (2022) were averaged by season; thus, a density was 
calculated for each species for spring, summer, fall, and winter. 
Density seasonal averages were calculated for both the Lease Area and 
the ECR Area for each species to assess the greatest average seasonal 
densities for each species. To be conservative since the exact timing 
for the survey during the year is uncertain, the greatest average 
seasonal density calculated for each species was carried forward in the 
exposure analysis, with exceptions noted later. Estimated greatest 
average seasonal densities (animals/km\2\) of marine mammal species 
that may be

[[Page 13793]]

taken by the planned survey can be found in Tables 7 and 8 of BPW's IHA 
application. Below, we discuss how densities were assumed to apply to 
specific species for which the Roberts and Halpin (2022) models provide 
results at the genus or guild level.
    There are two stocks of bottlenose dolphins that may be impacted by 
the surveys (Western North Atlantic Northern Migratory Coastal Stock 
(Coastal Stock) and the Western North Atlantic Offshore Stock (Offshore 
Stock)); however, Roberts and Halpin (2022) do not differentiate by 
stock. The Coastal Stock is assumed to generally occur in waters less 
than 20 m and the Offshore Stock in waters deeper than 20 m (65-ft) 
isobath. The lease area is in waters deeper than 20 m and only the 
Offshore Stock would occur and could be potentially taken by survey 
effort in that area. For the ECR survey area, both stocks could occur 
in the area, so BPW calculated separate mean seasonal densities for the 
portion that is less than 20 m in depth and for the portion that is 
greater than 20 m in depth to use in estimating take of the Coastal and 
Offshore Stocks of bottlenose dolphins, respectively. Additionally, 
different trackline totals were used to calculate take of either the 
Coastal or Offshore Stocks of bottlenose dolphins (6,945 km trackline 
of Offshore Stock and 6,323 km trackline of the Coastal Stock).
    Furthermore, the Roberts and Halpin (2022) density model does not 
differentiate between the different pinniped species. For seals, given 
their size and behavior when in the water, seasonality, and feeding 
preferences, there is limited information available on species-specific 
distribution. Density estimates of Roberts and Halpin (2022) include 
all seal species that may occur in the Western North Atlantic combined 
(i.e., harbor, gray, hooded, and harp). For this IHA, only the harbor 
seals and gray seals are reasonably expected to occur in the survey 
area; so densities of seals were split evenly between these two 
species.
    Lastly, the Roberts and Halpin (2022) density model does not 
differentiate between the pilot whale species. We assume that all pilot 
whales near the project area would be long-finned pilot whales due to 
their range overlapping with the survey area and short-finned pilot 
whales are not anticipated to occur as far north as the survey area. 
For this IHA, densities of pilot whales are assumed to be only long-
finned pilot whale.

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 and is authorized.
    In order to estimate the number of marine mammals predicted to be 
exposed to sound levels that would result in harassment, radial 
distances to predicted isopleths corresponding to Level B harassment 
thresholds are calculated, as described above. The maximum distance 
(i.e., 141-m distance associated with the Dual Geo-Spark 2000X and 41 
distance associated with the Applied Acoustics S-Boom) to the Level B 
harassment criterion and the total length of the survey trackline are 
then used to calculate the total ensonified area, or zone of influence 
(ZOI) around the survey vessel.
    As mentioned above, there are two possible options for BPW's 
surveys in the Lease area using the Dual Geo-Spark 2000X.
    1. One Dual Geo-Spark 2000X would be used at a minimum of 30 m line 
spacing with tieline spacing of 500 m for a total survey distance of 
9,923 km in the Lease Area.
    2. Up to four Dual Geo-Spark 2000X would be towed to conduct an 
Ultra High Resolution 3-dimensional (UHR3D) survey. The sparkers would 
be fired sequentially such that only one is fired at a time with 0.33 
seconds between shots. The sparkers would be physically spaced 25 m 
apart for a total spread of 75 m. The tracklines would be similar to 
those for the single sparker; however, they would be spaced a minimum 
of 43.75 m apart with tielines spaced at 500 m for a shorter total 
survey distance of 6,814 km.
    Since either option may be used, BPW is requesting take based on 
the worst-case-scenario between the two options which is Option 1 the 
single Dual Geo-Spark 2000X--based on maximum total line-km.
    In the ECR area, either the boomer or sparker will be used. 
Regardless of which system is used, BPW plans to conduct the survey 
with a minimum of 30 m line spacing and tielines spaced at 500 m 
intervals in Federal waters through potential cable corridors and at a 
minimum of 15 m line spacing and tielines spaced at 500 m in State 
waters (to meet State requirements) for a total of 13,268 km of 
combined tracklines and tielines. Because either method may be used, 
BPW is requesting take based on the worst-case-scenario between the two 
methods--the single Dual Geo-Spark 2000X--based on the largest 
estimated distance to the harassment criterion.
    BPW estimates that the surveys will complete a total of 9,923 km 
survey trackline in the lease area and 13,268 km trackline in the ECR 
area. Based on the maximum estimated distance to the Level B harassment 
threshold of 141-m and the total survey length, the total ensonified 
area is therefore 2,799 km\2\ for the lease area and 3,742 km\2\ in the 
ECR area based on the following formula:

ZOI = (Total survey length x 2r) + [pi]r\2\

Where: total survey length= the total distance of the survey track 
lines within the lease area and r = the maximum radial distance from 
a given sound source to the Level B harassment threshold.

    This is a conservative estimate as it assumes the HRG source that 
results in the greatest isopleth distance to the Level B harassment 
threshold would be operated at all times during the entire survey, 
which may not ultimately occur and assumes the worst case scenario is 
the scenario chosen for the surveys.
    The number of marine mammals expected to be incidentally taken 
during the total survey is then calculated by estimating the number of 
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the greatest seasonal estimated marine mammal 
densities as described above. The product is then rounded, to generate 
an estimate of the total number of instances of harassment expected for 
each species over the duration of the survey. A summary of this method 
is illustrated in the following formula with the resulting take of 
marine mammals shown below in Table 5:

Estimated Take = D x ZOI

Where: D = greatest average seasonal species density (per km\2\) and 
ZOI = maximum daily ensonified area to relevant thresholds.


                            Table 5--Estimated Take Numbers and Total Take Authorized
----------------------------------------------------------------------------------------------------------------
                                                     Estimated
                     Species                        take--lease      Estimated      Total take      Percent of
                                                       area       take--ECR area    authorized       abundance
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale......................               7               7              14             4.1

[[Page 13794]]

 
Humpback whale..................................              21              15              36             2.6
Fin whale.......................................              61              25              86             1.3
Sei whale.......................................              12               8              20            0.32
Minke whale.....................................              96             108             204            0.93
Sperm whale.....................................               4               2               6            0.14
Long-finned pilot whale.........................              54              14              68            0.17
Bottlenose dolphin (W.N. Atlantic Offshore).....             387         \1\ 315             702             1.1
Bottlenose dolphin (Northern Migratory Coastal).               0        \2\ 1659            1659              25
Common dolphin..................................            3467            1267            4734             2.7
Atlantic white-sided dolphin....................             299             134             432            0.46
Atlantic spotted dolphin........................             167              54             221            0.55
Risso's dolphin.................................              37              15              52            0.15
Harbor porpoise.................................             657             655            1312             1.4
Harbor seal.....................................             194             985            1179             1.9
Gray seal \a\...................................             194             985            1179            0.26
----------------------------------------------------------------------------------------------------------------
\a\ This abundance estimate is the total stock abundance (including animals in Canada). The NMFS stock abundance
  estimate for U.S. population is only 27,300.

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, 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.
    The following mitigation measures must be implemented during BPW's 
planned marine site characterization surveys. Pursuant to section 7 of 
the ESA, BPW would 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).

Visual Monitoring and Shutdown Zones

    BPW must employ independent, dedicated, trained PSOs, meaning that 
the PSOs must (1) be employed by a third-party observer provider, (2) 
have no tasks other than to conduct observational effort, collect data, 
and communicate with and instruct relevant vessel crew with regard to 
the presence of marine mammals and mitigation requirements (including 
brief alerts regarding maritime hazards), and (3) have successfully 
completed an approved PSO training course appropriate for geophysical 
surveys. Visual monitoring must be performed by qualified, NMFS-
approved PSOs. PSO resumes must be provided to NMFS for review and 
approval prior to the start of survey activities.
    During survey operations (e.g., any day on which use of the sparker 
or boomer sources is planned to occur, and whenever the sparker or 
boomer source is in the water, whether activated or not), a minimum of 
one visual marine mammal observer (PSO) must be on duty on each source 
vessel and conducting visual observations at all times during daylight 
hours (i.e., from 30 minutes prior to sunrise through 30 minutes 
following sunset). A minimum of two PSOs must be on duty on each source 
vessel during nighttime hours. Visual monitoring must begin no less 
than 30 minutes prior to ramp-up (described below) and must continue 
until one hour after use of the sparker or boomer source ceases.
    Visual PSOs shall coordinate to ensure 360[deg] visual coverage 
around the vessel from the most appropriate observation posts and shall 
conduct visual observations using binoculars and the naked eye while 
free from distractions and in a consistent, systematic, and diligent 
manner. PSOs shall establish and monitor applicable shutdown zones (see 
below). These zones shall be based upon the radial distance from the 
sparker or boomer source (rather than being based around the vessel 
itself).
    Three shutdown zones are defined, depending on the species and 
context. Here, an extended shutdown zone encompassing the area at and 
below the sea surface out to a radius of 500 meters from the sparker or 
boomer source (0-500 meters) is defined for North Atlantic right 
whales. For all other marine mammals, the shutdown zone encompasses a 
standard distance of 100 meters (0-100 meters). If the boomer is used, 
the shutdown zone for all non-listed marine mammals is reduced to 50 
meters. Any observations of marine mammals by crew members aboard any

[[Page 13795]]

vessel associated with the survey shall be relayed to the PSO team.
    Visual PSOs may be on watch for a maximum of four consecutive hours 
followed by a break of at least one hour between watches and may 
conduct a maximum of 12 hours of observation per 24-hour period.

Pre-Start Clearance and Ramp-up Procedures

    A ramp-up procedure, involving a gradual increase in source level 
output, is required at all times as part of the activation of the 
sparker and boomer sources when technically feasible. Operators should 
ramp up sparker and boomer to half power for 5 minutes and then proceed 
to full power. A 30-minute pre-start clearance observation period must 
occur prior to the start of ramp-up. The intent of the pre-start 
clearance observation period (30 minutes) is to ensure no marine 
mammals are within the shutdown zones prior to the beginning of ramp-
up. The intent of the ramp-up is to warn marine mammals of pending 
operations and to allow sufficient time for those animals to leave the 
immediate vicinity. All operators must adhere to the following pre-
start clearance and ramp-up requirements:
     The operator must notify a designated PSO of the planned 
start of ramp-up as agreed upon with the lead PSO; the notification 
time should not be less than 60 minutes prior to the planned ramp-up in 
order to allow the PSOs time to monitor the shutdown zones for 30 
minutes prior to the initiation of ramp-up (pre-start clearance). 
During this 30 minute pre-start clearance period the entire shutdown 
zone must be visible, except as indicated below.
     Ramp-ups shall be scheduled so as to minimize the time 
spent with the source activated.
     A visual PSO conducting pre-start clearance observations 
must be notified again immediately prior to initiating ramp-up 
procedures and the operator must receive confirmation from the PSO to 
proceed.
     Any PSO on duty has the authority to delay the start of 
survey operations if a marine mammal is detected within the applicable 
pre-start clearance zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
acoustic source to ensure that mitigation commands are conveyed swiftly 
while allowing PSOs to maintain watch.
     The pre-start clearance requirement is waived for small 
delphinids and pinnipeds. Detection of a small delphinid (individual 
belonging to the following genera of the Family Delphinidae: Steno, 
Delphinus, Lagenorhynchus, Stenella, and Tursiops) or pinniped within 
the shutdown zone does not preclude beginning of ramp-up, unless the 
PSO confirms the individual to be of a genus other than those listed, 
in which case normal pre-clearance requirements apply.
     If there is uncertainty regarding identification of a 
marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which the pre-clearance 
requirement is waived), PSOs may use best professional judgment in 
making the decision to call for a shutdown.
     Ramp-up may not be initiated if any marine mammal to which 
the pre-start clearance requirement applies is within the shutdown 
zone. If a marine mammal is observed within the shutdown zone during 
the 30 minute pre-start clearance period, ramp-up may not begin until 
the animal(s) has been observed exiting the zones or until an 
additional time period has elapsed with no further sightings (30 
minutes for all baleen whale species and sperm whales and 15 minutes 
for all other species).
     PSOs must monitor the shutdown zones 30 minutes before and 
during ramp-up, and ramp-up must cease and the source must be shut down 
upon observation of a marine mammal within the applicable shutdown 
zone.
     Ramp-up may occur at times of poor visibility, including 
nighttime, if appropriate visual monitoring has occurred with no 
detections of marine mammals in the 30 minutes prior to beginning ramp-
up. Sparker or boomer activation may only occur at night where 
operational planning cannot reasonably avoid such circumstances.
     If the acoustic source is shut down for brief periods 
(i.e., less than 30 minutes) for reasons other than implementation of 
prescribed mitigation (e.g., mechanical difficulty), it may be 
activated again without ramp-up if PSOs have maintained constant visual 
observation and no detections of marine mammals have occurred within 
the applicable shutdown zone. For any longer shutdown, pre-start 
clearance observation and ramp-up are required.
Shutdown Procedures
    All operators must adhere to the following shutdown requirements:
     Any PSO on duty has the authority to call for shutdown of 
the sparker or boomer source if a marine mammal is detected within the 
applicable shutdown zone.
     The operator must establish and maintain clear lines of 
communication directly between PSOs on duty and crew controlling the 
source to ensure that shutdown commands are conveyed swiftly while 
allowing PSOs to maintain watch.
     When the sparker or boomer source is active and a marine 
mammal appears within or enters the applicable shutdown zone, the 
source must be shut down. When shutdown is instructed by a PSO, the 
sparker or boomer source must be immediately deactivated and any 
dispute resolved only following deactivation.
     The shutdown requirement is waived for small delphinids 
and pinnipeds. If a small delphinid (individual belonging to the 
following genera of the Family Delphinidae: Steno, Delphinus, 
Lagenorhynchus, Stenella, and Tursiops) or pinniped is visually 
detected within the shutdown zone, no shutdown is required unless the 
PSO confirms the individual to be of a genus other than those listed, 
in which case a shutdown is required.
     If there is uncertainty regarding identification of a 
marine mammal species (i.e., whether the observed marine mammal(s) 
belongs to one of the delphinid genera for which shutdown is waived or 
one of the species with a larger shutdown zone), PSOs may use best 
professional judgment in making the decision to call for a shutdown.
     Upon implementation of shutdown, the source may be 
reactivated after the marine mammal has been observed exiting the 
applicable shutdown zone or following a clearance period (30 minutes 
for all baleen whale species and sperm whales and 15 minutes for all 
other species) with no further detection of the marine mammal.
    If a species for which authorization has not been granted, or a 
species for which authorization has been granted but the authorized 
number of takes have been met, approaches or is observed within the 
Level B harassment zone, shutdown would occur.

Vessel Strike Avoidance

    Crew and supply vessel personnel should use an appropriate 
reference guide that includes identifying information on all marine 
mammals that may be encountered. Vessel operators must comply with the 
below measures except under extraordinary circumstances when the safety 
of the vessel or crew is in doubt or the safety of life at sea is in 
question. These requirements do not apply in any case where compliance 
would create an imminent and serious threat to a person or vessel or to 
the extent that a vessel

[[Page 13796]]

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 marine mammals and slow down, stop their vessel(s), or alter 
course, as appropriate and regardless of vessel size, to avoid striking 
any marine mammals. A single marine mammal at the surface may indicate 
the presence of submerged animals in the vicinity of the vessel; 
therefore, precautionary measures should always be exercised. A visual 
observer aboard the vessel must monitor a vessel strike avoidance zone 
around the vessel (species-specific distances are detailed 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 marine mammal from other phenomena and (2) broadly to 
identify a marine mammal as a North Atlantic right whales, other whale 
(defined in this context as sperm whales or baleen whales other than 
North Atlantic right whales), or other marine mammals.
     All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specific areas designated by NMFS for the 
protection of North Atlantic right whales from vessel strikes. These 
include all Seasonal Management Areas (SMA) established under 50 CFR 
224.105 (when in effect), any dynamic management areas (DMA) (when in 
effect), and Slow Zones. See www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales for specific detail regarding these areas.
     All vessels must reduce speed to 10 knots or less when 
mother/calf pairs, pods, or large assemblages of cetaceans are observed 
near a vessel.
     All vessels must maintain a minimum separation distance of 
500 m from North Atlantic right whales. If a North Atlantic right whale 
is sighted within the relevant separation distance, the vessel must 
steer a course away at 10 kn (18.5 km/hour) or less until the 500-m 
separation distance has been established. If a whale is observed but 
cannot be confirmed as a species other than a North Atlantic right 
whales, the vessel operator must assume that it is a North Atlantic 
right whales and take appropriate action.
     All vessels must maintain a minimum separation distance of 
100 m from sperm whales and all other baleen whales.
     All vessels must, to the maximum extent practicable, 
attempt to maintain a minimum separation distance of 50 m from all 
other marine mammals, with an understanding that at times this may not 
be possible (e.g., for animals that approach the vessel).
     When marine mammals are sighted while a vessel is 
underway, the vessel must 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, reduce speed and shift 
the engine to neutral). This does not apply to any vessel towing gear 
or any vessel that is navigationally constrained.
    Members of the PSO team will consult NMFS North Atlantic right 
whales reporting system and Whale Alert, daily and as able, for the 
presence of North Atlantic right whales throughout survey operations, 
and for the establishment of DMAs and/or Slow Zones. It is BPW's 
responsibility to maintain awareness of the establishment and location 
of any such areas and to abide by these requirements accordingly.

Seasonal Operating Requirements

    As described above, a section of the survey area partially overlaps 
with a portion of a North Atlantic right whales SMA off the port of New 
York/New Jersey. This SMA is active from November 1 through April 30 of 
each year. The survey vessel, regardless of length, would be required 
to adhere to vessel speed restrictions (<10 kn (18.5 km/hour)) when 
operating within the SMA during times when the SMA is active.

      Table 6--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
                                      Restrictions Within The Survey Areas
----------------------------------------------------------------------------------------------------------------
           Survey area                  Species        DMA  restrictions      Slow zones       SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area......................  North Atlantic       If established by NMFS, all of BPW's   N/A.
ECR North.......................   right whale           vessel will abide by the described   November 1 through
ECR South.......................   (Eubalaena                       restrictions               July 31 (Raritan
                                   glacialis).                                                 Bay).
                                                                                              N/A.
----------------------------------------------------------------------------------------------------------------
More information on Ship Strike Reduction for the North Atlantic right whales can be found at NMFS' website:
  https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales.

    Based on our evaluation of the applicant's measures, as well as 
other measures considered by NMFS, 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 activity; or (4) biological or 
behavioral

[[Page 13797]]

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

    BPW must use independent, dedicated, trained PSOs, meaning that the 
PSOs must be employed by a third-party observer provider, must 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 mammal and mitigation requirements (including brief 
alerts regarding maritime hazards), and must have successfully 
completed an approved PSO training course for geophysical surveys. 
Visual monitoring must be performed by qualified, NMFS-approved PSOs. 
PSO resumes must be provided to NMFS for review and approval prior to 
the start of survey activities.
    PSO names must be provided to NMFS by the operator for review and 
confirmation of their approval for specific roles prior to commencement 
of the survey. For prospective PSOs not previously approved, or for 
PSOs whose approval is not current, NMFS must review and approve PSO 
qualifications. Resumes should include information related to relevant 
education, experience, and training, including dates, duration, 
location, and description of prior PSO experience. Resumes must be 
accompanied by relevant documentation of successful completion of 
necessary training.
    NMFS may approve PSOs as conditional or unconditional. A 
conditionally-approved PSO may be one who is trained but has not yet 
attained the requisite experience. An unconditionally-approved PSO is 
one who has attained the necessary experience. For unconditional 
approval, the PSO must have a minimum of 90 days at sea performing the 
role during a geophysical survey, with the conclusion of the most 
recent relevant experience not more than 18 months previous.
    At least one of the visual PSOs aboard the vessel must be 
unconditionally-approved. One unconditionally-approved visual PSO shall 
be designated as the lead for the entire PSO team. This lead should 
typically be the PSO with the most experience, who would coordinate 
duty schedules and roles for the PSO team and serve as primary point of 
contact for the vessel operator. To the maximum extent practicable, the 
duty schedule shall be planned such that unconditionally-approved PSOs 
are on duty with conditionally-approved PSOs.
    At least one PSO aboard each acoustic source vessel must have a 
minimum of 90 days at-sea experience working in the role, with no more 
than eighteen months elapsed since the conclusion of the at-sea 
experience. One PSO with such experience must be designated as the lead 
for the entire PSO team and serve as the primary point of contact for 
the vessel operator. (Note that the responsibility of coordinating duty 
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the 
lead PSO must devise the duty schedule such that experienced PSOs are 
on duty with those PSOs with appropriate training but who have not yet 
gained relevant experience.
    PSOs must successfully complete relevant training, including 
completion of all required coursework and passing (80 percent or 
greater) a written and/or oral examination developed for the training 
program.
    PSOs must have successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences, a minimum of 30 semester hours or equivalent in the 
biological sciences, and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver shall be submitted to NMFS and must include written 
justification. Alternate experience that may be considered includes, 
but is not limited to (1) secondary education and/or experience 
comparable to PSO duties; (2) previous work experience conducting 
academic, commercial, or government-sponsored marine mammal surveys; 
and (3) previous work experience as a PSO (PSO must be in good standing 
and demonstrate good performance of PSO duties).
    BPW must work with the selected third-party PSO provider to ensure 
PSOs have all equipment (including backup equipment) needed to 
adequately perform necessary tasks, including accurate determination of 
distance and bearing to observed marine mammals, and to ensure that 
PSOs are capable of calibrating equipment as necessary for accurate 
distance estimates and species identification. Such equipment, at a 
minimum, shall include:
     At least one thermal (infrared) imagine device suited for 
the marine environment;
     Reticle binoculars (e.g., 7 x 50) of appropriate quality 
(at least one per PSO, plus backups);
     Global Positioning Units (GPS) (at least one plus 
backups);
     Digital cameras with a telephoto lens that is at least 
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least 
one plus backups). The camera or lens should also have an image 
stabilization system;
     Equipment necessary for accurate measurement of distances 
to marine mammal;
     Compasses (at least one plus backups);
     Means of communication among vessel crew and PSOs; and
     Any other tools deemed necessary to adequately and 
effectively perform PSO tasks.
    The equipment specified above may be provided by an individual PSO, 
the third-party PSO provider, or the operator, but BPW is responsible 
for ensuring PSOs have the proper equipment required to perform the 
duties specified in the IHA.
    The PSOs will be responsible for monitoring the waters surrounding 
the survey vessel to the farthest extent permitted by sighting 
conditions, including Shutdown Zones, during all HRG survey operations. 
PSOs will visually monitor and identify marine mammals, including those 
approaching or entering the established Shutdown Zones during survey 
activities. It will be the responsibility of the PSO(s) 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.
    PSOs must be equipped with binoculars and have the ability to 
estimate distance and bearing to detect marine mammals, particularly in 
proximity to Shutdown 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

[[Page 13798]]

thermal clip-ons and infrared technology would be used. Position data 
would be recorded using hand-held or vessel GPS units for each 
sighting.
    During good conditions (e.g., daylight hours; Beaufort sea state 
(BSS) 3 or less), to the maximum extent practicable, PSOs would also 
conduct observations when the acoustic source is not operating for 
comparison of sighting rates and behavior with and without use of the 
active acoustic sources. Any observations of marine mammals by crew 
members aboard the vessel associated with the survey would be relayed 
to the PSO team. Data on all PSO observations would be recorded based 
on standard PSO collection requirements (see Reporting Measures). This 
would include dates, times, and locations of survey operations; dates 
and times of observations, location and weather; details of marine 
mammal sightings (e.g., species, numbers, behavior); and details of any 
observed marine mammal behavior that occurs (e.g., noted behavioral 
disturbances). Members of the PSO team shall consult the NMFS North 
Atlantic right whales reporting system and Whale Alert, daily and as 
able, for the presence of North Atlantic right whales throughout survey 
operations.

Reporting Measures

    BPW shall submit a draft comprehensive report to NMFS on all 
activities and monitoring results within 90 days of the completion of 
the survey or expiration of the IHA, whichever comes sooner. The report 
must describe all activities conducted and sightings of marine mammals, 
must provide full documentation of methods, results, and interpretation 
pertaining to all monitoring, and must summarize the dates and 
locations of survey operations and all marine mammals sightings (dates, 
times, locations, activities, associated survey activities). The draft 
report shall also include geo-referenced, time-stamped vessel 
tracklines for all time periods during which acoustic sources were 
operating. Tracklines should include points recording any change in 
acoustic source status (e.g., when the sources began operating, when 
they were turned off, or when they changed operational status such as 
from full array to single gun or vice versa). GIS files shall be 
provided in Environmental Systems Research Institute, Inc (ESRI) 
shapefile format and include the Coordinated Universal Time (UTC) date 
and time, latitude in decimal degrees, and longitude in decimal 
degrees. All coordinates shall be referenced to the WGS84 geographic 
coordinate system. In addition to the report, all raw observational 
data shall be made available. The report must summarize the 
information. A final report must be submitted within 30 days following 
resolution of any comments on the draft report. All draft and final 
marine mammal monitoring reports must be submitted to 
[email protected],[email protected] and 
[email protected].
    PSOs must use standardized electronic data forms to record data. 
PSOs shall record detailed information about any implementation of 
mitigation requirements, including the distance of marine mammal to the 
acoustic source and description of specific actions that ensued, the 
behavior of the animal(s), any observed changes in behavior before and 
after implementation of mitigation, and if shutdown was implemented, 
the length of time before any subsequent ramp-up of the acoustic 
source. If required mitigation was not implemented, PSOs should record 
a description of the circumstances. At a minimum, the following 
information must be recorded:
    1. Vessel names (source vessel), vessel size and type, maximum 
speed capability of vessel;
    2. Dates of departures and returns to port with port name;
    3. PSO names and affiliations;
    4. Date and participants of PSO briefings;
    5. Visual monitoring equipment used;
    6. PSO location on vessel and height of observation location above 
water surface;
    7. Dates and times (Greenwich Mean Time) of survey on/off effort 
and times corresponding with PSO on/off effort;
    8. Vessel location (decimal degrees) when survey effort begins and 
ends and vessel location at beginning and end of visual PSO duty 
shifts;
    9. Vessel location at 30-second intervals if obtainable from data 
collection software, otherwise at practical regular interval;
    10. Vessel heading and speed at beginning and end of visual PSO 
duty shifts and upon any change;
    11. Water depth (if obtainable from data collection software);
    12. Environmental conditions while on visual survey (at beginning 
and end of PSO shift and whenever conditions change significantly), 
including BSS and any other relevant weather conditions including cloud 
cover, fog, sun glare, and overall visibility to the horizon;
    13. Factors that may contribute to impaired observations during 
each PSO shift change or as needed as environmental conditions change 
(e.g., vessel traffic, equipment malfunctions); and
    14. Survey activity information (and changes thereof), such as 
acoustic source power output while in operation, number and volume of 
airguns operating in an array, tow depth of an acoustic source, and any 
other notes of significance (i.e., pre-start clearance, ramp-up, 
shutdown, testing, shooting, ramp-up completion, end of operations, 
streamers, etc.).
    15. Upon visual observation of any marine mammal, the following 
information must be recorded:
    a. Watch status (sighting made by PSO on/off effort, opportunistic, 
crew, alternate vessel/platform);
    b. Vessel/survey activity at time of sighting (e.g., deploying, 
recovering, testing, shooting, data acquisition, other);
    c. PSO who sighted the animal;
    d. Time of sighting;
    e. Initial detection method;
    f. Sightings cue;
    g. Vessel location at time of sighting (decimal degrees);
    h. Direction of vessel's travel (compass direction);
    i. Speed of the vessel(s) from which the observation was made;
    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. Species reliability (an indicator of confidence in 
identification);
    l. Estimated distance to the animal and method of estimating 
distance;
    m. Estimated number of animals (high/low/best);
    n. Estimated number of animals by cohort (adults, yearlings, 
juveniles, calves, group composition, etc.);
    o. 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);
    p. Detailed behavior observations (e.g., number of blows/breaths, 
number of surfaces, breaching, spyhopping, diving, feeding, traveling; 
as explicit and detailed as possible; note any observed changes in 
behavior before and after point of closest approach);
    q. Mitigation actions; description of any actions implemented in 
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or 
course alteration, etc.) and time and location of the action;
    r. Equipment operating during sighting;
    s. Animal's closest point of approach and/or closest distance from 
the center point of the acoustic source; and

[[Page 13799]]

    t. Description of any actions implemented in response to the 
sighting (e.g., delays, shutdown, ramp-up) and time and location of the 
action.
    If a North Atlantic right whales is observed at any time by PSOs or 
personnel on the project vessel, during surveys or during vessel 
transit, BPW must report the sighting information to the NMFS North 
Atlantic right whales Sighting Advisory System (866-755-6622) within 2 
hours of occurrence, when practicable, or no later than 24 hours after 
occurrence. North Atlantic right whales sightings in any location may 
also be reported to the U.S. Coast Guard via channel 16 and through the 
WhaleAlert app (https://www.whalealert.org).
    In the event that personnel involved in the survey activities 
discover an injured or dead marine mammal, the incident must be 
reported to NMFS as soon as feasible by phone (866-755-6622) and by 
email ([email protected] and 
[email protected]). The report must include the 
following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.
    In the event of a ship strike of a marine mammal by any vessel 
involved in the activities, BPW must report the incident to NMFS by 
phone (866-755-6622) and by email ([email protected] and 
[email protected]) as soon as feasible. The report 
would include the following information:
    1. Time, date, and location (latitude/longitude) of the incident;
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Vessel's speed during and leading up to the incident;
    4. Vessel's course/heading and what operations were being conducted 
(if applicable);
    5. Status of all sound sources in use;
    6. 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;
    7. Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, visibility) immediately preceding the 
strike;
    8. Estimated size and length of animal that was struck;
    9. Description of the behavior of the marine mammal immediately 
preceding and/or following the strike;
    10. If available, description of the presence and behavior of any 
other marine mammals immediately preceding the strike;
    11. 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
    12. 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 majority of our analysis applies to all 
the species listed in Table 1, given that some of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are included as separate subsections below. 
Specifically, we provide additional discussion related to North 
Atlantic right whales and to other species currently experiencing UMEs.
    NMFS does not anticipate that serious injury or mortality would 
occur as a result from HRG surveys, even in the absence of mitigation, 
and no serious injury or mortality is authorized. As discussed in the 
Potential Effects of Specified Activities on Marine Mammals and their 
Habitat section, non-auditory physical effects, auditory physical 
effects, and vessel strike are not expected to occur. NMFS expects that 
all potential takes would be in the form of Level B 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; Ellison et al., 2012).
    In addition to being temporary, the maximum expected harassment 
zone around a survey vessel is 141-m. Therefore, the ensonified area 
surrounding each vessel is relatively small compared to the overall 
distribution of the animals in the area and their use of the habitat. 
Feeding behavior is not likely to be significantly impacted as prey 
species are mobile and are broadly distributed throughout the survey 
area; therefore, marine mammals that may be temporarily displaced 
during survey activities are expected to be able to resume foraging 
once they have moved away from areas with disturbing levels of 
underwater noise. Because of the temporary nature of the disturbance 
and the availability of similar habitat and resources in the 
surrounding area, the impacts to marine mammals and the food sources 
that they utilize are not expected to cause significant or long-term 
consequences for individual marine mammals or their populations.
    There are no rookeries, mating or calving grounds known to be 
biologically important to marine mammals within the planned survey area 
and there are no feeding areas known to be biologically important to 
marine mammals within the survey area. There is no designated critical 
habitat for any ESA-listed marine mammals in the survey area.

[[Page 13800]]

North Atlantic Right Whales

    The status of the North Atlantic right whale population is of 
heightened concern and, therefore, merits additional analysis. As noted 
previously, elevated North Atlantic right whales mortalities began in 
June 2017 and there is an active UME. Overall, preliminary findings 
attribute human interactions, specifically vessel strikes and 
entanglements, as the cause of death for the majority of North Atlantic 
right whales. As noted previously, the survey area overlaps a migratory 
corridor BIA for North Atlantic right whales that extends from 
Massachusetts to Florida and from the coast to beyond the shelf break. 
Due to the fact that the planned survey activities are temporary (will 
occur for up to one year) and the spatial extent of sound produced by 
the survey would be small relative to the spatial extent of the 
available migratory habitat in the BIA, North Atlantic right whale 
migration is not expected to be impacted by the survey. This important 
migratory area is approximately 269,488 km\2\ in size (compared with 
the worst case scenario of approximately 6,541 km\2\ of total estimated 
Level B harassment ensonified area associated with both the Lease Area 
and the ECR area surveys) and is comprised of the waters of the 
continental shelf offshore the East Coast of the United States, 
extending from Florida through Massachusetts.
    Given the relatively small size of the ensonified area, it is 
unlikely that prey availability would be adversely affected by HRG 
survey operations. Required vessel strike avoidance measures will also 
decrease risk of ship strike during migration; no ship strike is 
expected to occur during BPW's planned activities. Additionally, only 
very limited take by Level B harassment of North Atlantic right whales 
has been requested and is being authorized by NMFS as HRG survey 
operations are required to maintain and implement a 500 m shutdown 
zone. The 500-m shutdown zone for North Atlantic right whales is 
conservative, considering the Level B harassment isopleth for the most 
impactful acoustic source (i.e., sparker) is estimated to be 141-m, and 
thereby minimizes the potential for behavioral harassment of this 
species. As noted previously, Level A harassment is not expected due to 
the small estimated zones in conjunction with the aforementioned 
shutdown requirements. NMFS does not anticipate North Atlantic right 
whales takes that would result from BPW's planned activities would 
impact annual rates of recruitment or survival. Thus, any takes that 
occur would not result in population level impacts.

Other Marine Mammal Species With Active UMEs

    As noted previously, there are several active UMEs occurring in the 
vicinity of BPW's survey area. Elevated humpback whale mortalities have 
occurred along the Atlantic coast from Maine through Florida since 
January 2016. Of the cases examined, approximately half had evidence of 
human interaction (ship strike or entanglement). The UME does not yet 
provide cause for concern regarding population-level impacts. Despite 
the UME, the relevant population of humpback whales (the West Indies 
breeding population, or DPS) remains stable at approximately 12,000 
individuals.
    Beginning in January 2017, elevated minke whale strandings have 
occurred along the Atlantic coast from Maine through South Carolina, 
with highest numbers in Massachusetts, Maine, and New York. This event 
does not provide cause for concern regarding population level impacts, 
as the likely population abundance is greater than 20,000 whales.
    Elevated numbers of harbor seal and gray seal mortalities were 
first observed between 2018-2020 and, as part of a separate UME, again 
in 2022. These have occurred across Maine, New Hampshire, and 
Massachusetts. Based on tests conducted so far, the main pathogen found 
in the seals is phocine distemper virus (2018-2020) and avian influenza 
(2022), although additional testing to identify other factors that may 
be involved in the UMEs is underway. The UMEs do not provide cause for 
concern regarding population-level impacts to any of these stocks. For 
harbor seals, the population abundance is over 60,000 and annual M/SI 
(339) is well below PBR (1,729) (Hayes et al., 2021). The population 
abundance for gray seals in the United States is over 27,000, with an 
estimated abundance, including seals in Canada, of approximately 
450,000. In addition, the abundance of gray seals is likely increasing 
in the U.S. Atlantic as well as in Canada (Hayes et al., 2021).
    The required mitigation measures are expected to reduce the number 
and/or severity of takes for all species listed in Table 1, including 
those with active UMEs, to the level of least practicable adverse 
impact. In particular, they would provide animals the opportunity to 
move away from the sound source before HRG survey equipment reaches 
full energy, thus preventing them from being exposed to sound levels 
that have the potential to cause injury. No Level A harassment is 
anticipated, even in the absence of mitigation measures, or authorized.
    NMFS expects that takes would be in the form of short-term Level B 
harassment by way of brief startling reactions and/or temporary 
vacating of the area, or decreased foraging (if such activity was 
occurring)--reactions that (at the scale and intensity anticipated 
here) are considered to be of low severity, with no lasting biological 
consequences. Since both the sources and marine mammals are mobile, 
animals would only be exposed briefly to a small ensonified area that 
might result in take. Additionally, required mitigation measures would 
further reduce exposure to sound that could result in more severe 
behavioral harassment.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect 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 ensonified areas 
during the planned survey to avoid exposure to sounds from the 
activity;
     Take is anticipated to be by Level B harassment only 
consisting of brief startling reactions and/or temporary avoidance of 
the ensonified area;
     Survey activities would occur in such a comparatively 
small portion of the BIA for North Atlantic right whale migration that 
any avoidance of the area due to survey activities would not affect 
migration. In addition, mitigation measures require shutdown at 500 m 
(almost four times the size of the Level B harassment isopleth of 141 
m) to minimize the effects of any Level B harassment take of 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,

[[Page 13801]]

NMFS finds that the total marine mammal take from the activity will 
have a negligible impact on all affected marine mammal species or 
stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    NMFS authorizes incidental take by Level B harassment only of 15 
marine mammal species with 16 managed stocks. The total amount of takes 
authorized relative to the best available population abundance is less 
than 5 percent for 15 stocks and 25 percent for the remaining stock 
(Western North Atlantic Migratory Coastal Stock of Bottlenose dolphins) 
(Table 5). The take numbers authorized are considered conservative 
estimates for purposes of the small numbers determination as they 
assume all takes represent different individual animals, which is 
unlikely to be the case.
    Based on the analysis contained herein of the planned activity 
(including the mitigation and monitoring measures) and the anticipated 
take of marine mammals, NMFS finds that small numbers of marine mammals 
would be taken relative to the population size of the affected species 
or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    NMFS Office of Protected Resources (OPR) has authorized 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 NMFS Greater Atlantic Regional Fisheries Office's (GARFO) 
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).

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.

Authorization

    As a result of these determinations, NMFS has issued an IHA to BPW 
for conducting marine site characterization surveys in coastal waters 
off of New York and New Jersey in the New York Bight for a period of 1 
year, provided the previously mentioned mitigation, monitoring, and 
reporting requirements are incorporated. The IHA can be found at: 
https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new.

    Dated: February 28, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-04445 Filed 3-3-23; 8:45 am]
BILLING CODE 3510-22-P